Enforcing suspended possession orders : Where are we now?

16 Feb 2017

The Court of Appeal’s decision in Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034 at the end of last year came as a surprise to many of us. For as long as we can remember, the procedure for enforcing a suspended possession order (SPO) was straightforward: Once the terms of the SPO were breached, usually due to falling behind on rent, a request for warrant for possession on form N325 would be sent to Court to be issued and an eviction date fixed. Issuing a warrant for possession is an administrative process, dealt with by a Court officer. No hearing is required, or any evidence of the breach or the landlord’s entitlement to enforce the SPO.

The decision

The process was set to be radically changed following the Cardiff County Council appeal. That case involved an SPO on grounds of anti-social behaviour. The nuisance behaviour continued, in breach of the terms of the SPO, and the Council applied for a warrant to enforce the SPO and evict the tenant. The tenant argued that Rule 83.2(3)(e) of the Civil Procedural Rules required the Court to give permission before any warrant for possession could be issued for an alleged breach of a condition set out in an SPO. The Council, having followed the usual procedure, had not sought permission of the Court to enforce the SPO. The tenant’s argument was accepted, although luckily for the Council the Court of Appeal exercised its power to ‘allow’ the procedural error.

However, the Court of Appeal made it clear that the process prescribed by Rule 83.2(3)(e) was an ‘important protection for tenants’. And whilst it accepted that the Council had in this case made a genuine mistake by not applying for permission to issue the warrant, the Court made it clear that landlords must ensure from now on that their systems are updated so that mistakes will not be made in the future.

Where are we now?

The immediate aftermath of Cardiff County Council caused confusion for both practitioners and the Courts. Separate applications for permission together with Court fees (of £255) were required before a warrant could be issued. It was unclear how the Court intended to deal with such applications, whether hearings would be required, and what evidence was required to support the application. The decision clearly had not filtered down to the front lines at first. We had one application returned by a Court officer, advising that permission was not required and our request for a warrant had been issued, without permission. As a result, an urgent application for retrospective permission was required before the warrant was executed to ensure that our client did not fall foul of Rule 83.2(3)(e).   

Luckily the process has - in the short term - been clarified by the introduction of a new Court form N325A in relation to SPOs on rent or mortgage arrears. The form must be accompanied by a statement of the payments due and those made by the tenant, presumably to show the breach of the SPO and the landlord’s entitlement to enforce. In our experience, a short statement setting out how much should have been paid under the SPO and how much has been paid, supported by a rent statement, is enough. The Court is not requiring this in the form of a witness statement but the accepted practice may vary from Court to Court. The form N325A will be considered by a District Judge who, if satisfied that the warrant can be issued, will grant permission and the warrant will be processed.

What next?

The Civil Procedure Rule Committee will be consulting on the procedure and new guidance is expected in April. Whilst the new form N325A saves the additional time and expense of a separate application, in cases other than rent or mortgage arrears an application for permission will still be required.

The requirement for permission set out by Rule 83.2(3)(e) passed many of us by until the decision in the Cardiff County Council case. However, given the stark warning issued by the Court of Appeal, ignorance will be no excuse for not following the correct procedure and we will be waiting with anticipation for the guidance to be issued by the Civil Procedure Rule Committee in the spring. In the meantime, we have all been warned!

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