An unwarranted decision?

26 Oct 2016

Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034

The Court of Appeal has confirmed the importance of CPR 83 on warrants.

Previously, ‘warrant requests’ were approached by many as a simple administrative task when an unruly tenant breached an SPO (suspended possession order). If the tenant believed it was disproportionate for their landlord to seek enforcement– they had to make an application to suspend the warrant.

The Court of Appeal has now said the previous approach is incorrect. Tenants are afforded extra protection from Rule 83.2 of the Civil Procedure Rules (CPR). This requires the Landlord to make an application to court for permission to have a warrant issued in cases where there has been an SPO breach.

The facts

Things came to a head in the recent case of Cardiff County Council v Lee (Flowers).  In September 2013 the court ordered possession on the basis of the tenant’s anti-social behaviour, but suspended it for two years on the condition that the tenant complied with the terms of the tenancy agreement.  The SPO was breached in 2015 when the tenant continued to act in an anti-social manner, in breach of his tenancy and the terms of suspension.  The council applied for a warrant using the Form N325 as they had done previously.  A warrant was issued and an eviction date set. The tenant applied to set aside the warrant. At the final hearing of the tenant’s application, evidence was heard as to the alleged breaches and the court was satisfied that the SPO had been breached and the application for suspension of the warrant was dismissed.

The appeal

The tenant then appealed the warrant on the basis that the landlord had not made an application for permission for it to be issued. The Court of Appeal considered the procedural history and said, on this occasion, it was a mistake by the council not to have applied for permission however the court could take steps to correct the procedural error. The court noted that there was no material prejudice to the tenant and that it was likely that the outcome would have been the same even if the council had made an application for permission – i.e. a warrant would have been given and the tenant would have been evicted.

However, there is an important warning here. Lady Justice Arden purposefully urged landlords and the courts to have greater awareness of the rules concerning warrants and it is to be expected that permission should be sought in similar circumstances as standard practice going forward.

What this means for you

This is another procedural hurdle in the way to recovering the property back – another layer of protection for the tenant in cases which can often involve quite serious behaviour affecting other individuals.

Landlords will now need to rethink strategies and processes for obtaining warrants in cases where they have a SPO containing conditions which should be complied with, and such conditions have not been adhered to. An application should be made to the court requesting permission for a warrant to be issued and should detail the original order; the allegations; and the reasons why it is now appropriate for the warrant to be issued and executed.

Such an application, even without notice, will increase both the time and cost involved in getting a property back. Delay may well be a material factor;

  • It is reasonable to assume there are many thousands of SPOs out there and similarly many thousands of applications issued when terms are not complied with.
  • Potentially, there is also now a risk in certain situations where permission will not be given, for example, if the court considers the breach to be trivial etc.
  • For tenants, this is likely to become a hunting ground for applications challenging the validity of warrants and seeking to set those warrants aside as an abuse of process.

As judicial resources are already stretched, an additional stream of work will undoubtedly be difficult for the court to manage efficiently.  Landlords may wish to canvass with their local county court with regards to streamlining the process for obtaining permission to minimise delay.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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