On 19 October 2016, the Court of Appeal handed down judgment in the case of Cardiff County Council v Lee (Flowers)  EWCA Civ 1034.
Contrary to what housing providers had long understood, the Court considered that permission was needed to enforce a breach of a suspended possession order (“SPO”).
Since October we have received lots of questions from clients about what they should do now in light of this decision. Below, we try our best to answer all of those questions in once place.
What was the Cardiff case about?
Cardiff had obtained an SPO against its tenant. The SPO included a condition requiring him to comply with the terms of his tenancy. Cardiff received complaints indicating that the condition had been breached, and so applied for and obtained a warrant of possession by completing form N325. The tenant then made an application to stay the warrant.
The tenant’s argument on appeal had two key parts:
- CPR 83.2(3) required Cardiff to obtain the permission of the court before a warrant is issued. Cardiff had not done this.
- The warrant had been improperly issued, therefore it was a nullity and could not be relied upon by Cardiff.
Cardiff accepted the first part of the argument. CPR 83.2(3) had changed the procedure that had previously existed. Now where a tenant breaches an SPO, the landlord must obtain the permission of the Court before obtaining a warrant.
CPR 83.2(3) provides
“(3) A relevant writ or warrant must not be issued without the permission of the court where…
(e) under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled.”
CPR 83.2(1)(d) confirms that the rule applies to warrants of possession.
Cardiff however took issue with the second issue and argued that their failure to obtain permission was a procedural error that could be corrected retrospectively.
What did the Court of Appeal decide?
Let us start by answering a different question. What didn’t the Court decide? The Court did not decide (in a binding sense) whether, following the breach of an SPO, a landlord must obtain the permission of the court to obtain a warrant of possession. As stated above, the parties had already agreed the answer to that question.
Arden LJ however made her opinion on that question very clear in para. 23 of her judgment:
“In my judgment Ms Walters is right to say that despite its opaque language CPR 83.2 contains an important protection for tenants… The scheme of CPR 83.2 is clear that all landlords should in the case of conditional orders for possession have to establish that the condition entitl[ing] them to the possession has been fulfilled before the tenant become embroiled in an eviction from his home.”
This part of the judgment is “obiter dictum” and not binding. However, you will struggle to find a district judge who does not find this passage highly persuasive.
In the future, a landlord could still seek to persuade the Court of Appeal that permission under s. 83.2 is not required to enforce an SPO. However, it is safe to assume that most social landlords will prefer warrant suspension applications to be dealt with in the County Court, without an expensive trip to the Court of Appeal.
We will therefore leave academic debate to others. For the purposes of this article we will simply assume that Cardiff’s concession was correct and that permission is required.
So what did the Court decide? The binding part of the Court’s decision, the “ratio”, is that a failure to obtain permission is a procedural “mistake”, which is capable of retrospective correction under CPR 3.10.
The Court therefore refused the tenant’s appeal and found that the judge at first instance both had a discretion to correct the mistake and that he had exercised that discretion appropriately.
Do landlords now need permission to get a warrant of possession?
If the order is an SPO, the short answer is “yes”. Arden LJ, at para. 31 of her judgment, made her view as clear as possible:
“I reiterate that CPR 83.2 constitutes an important protection for tenants. It is not to be taken lightly. Social landlords must ensure that from now on their systems are such that the same mistake will not be made in future”
If you are a landlord desperate for a trip to the appeal courts, then it is still theoretically possible to argue that this is wrong. However, such an approach only makes sense for landlords dealing with so many SPOs that applications for permission are a large burden or where the tenant initiates the appeal.
The decidedly safer and more cost-effective approach is to assume that Arden LJ was correct.
For future breaches of an SPO our advice is clear, apply to the court for permission.
There is no need for permission where the possession order is outright. In those cases, the procedure under CPR 83.26 (using form N325) can still be followed.
How should I make an application for permission?
An application can be made using form N244 under the CPR Part 23 procedure.
The application can be made without notice to the tenant (see CPR 83.2(4) and (5)).
What evidence should the application include?
A landlord’s application must first identify the possession order. It should then specify which provision has been breached and how. The aim is to satisfy the court that the landlord can proceed to execute the SPO and that the tenant is liable to execution on it (CPR 83.2(4)(a) and (f)).
Some evidence will be necessary for this purpose. This does not necessarily need to be a witness statement. Form N244 has a box where brief evidence can be provided supported by a statement of truth.
The evidence will therefore vary depending on the terms of the SPO and the nature of the breach.
- In the case of an SPO conditional on payment of rent arrears, reference to a statement of arrears should be sufficient to demonstrate breach.
- Where there are allegations of anti-social behaviour or breaches of the tenancy agreement, a short witness statement summarising the breaches might be necessary. Detailed evidence as to the breaches will probably not be necessary for the initial application. If the application is listed for a hearing or the tenant applies to stay or suspend execution further evidence might be required.
What if the breach is not covered by the SPO?
If you want to rely on allegations that are not covered by the terms of the SPO, bear in mind the guidance given in Sheffield City Council v Hopkins  EWCA Civ 1023 and Manchester City Council v Finn  EWCA Civ 1998 about the procedure to be followed. This guidance still applies with some slight modifications.
Sheffield v Hopkins applies where the landlord wishes to rely on additional allegations to resist an application to stay or suspend a warrant. Now the landlord will have to seek permission before a warrant can be applied for. This is likely to be the appropriate stage to identify the additional allegations, as well as informing the tenant that permission is being applied for and that the additional allegations will be relied upon in response to any application for a stay.
Manchester v Finn applies where additional grounds for possession arise after an SPO has been made. The landlord can apply to the court to vary the SPO. The tenant should be given notice of the application and the allegations relied upon. If the result of the application is that the possession order is converted to an outright order, no further permission to enforce is required.
In either situation, tenants should be given notice of the additional allegations against them. Landlords should write to the tenant who is the subject of the SPO, setting out the additional allegations and allowing the tenant time to respond.
What happens if a warrant has already been obtained under the “wrong” procedure?
The Court of Appeal in Lee held that the effect of CPR 3.10 was such that a warrant issued incorrectly was voidable and not void. The mistake was one of procedure. Therefore, the court may exercise its power to validate the warrant.
In Lee the Court of Appeal was satisfied that “a genuine mistake was made”. Therefore, even if Cardiff had followed the correct procedure, the same result would have been reached. Cardiff would have been given permission to enforce.
In reaching this conclusion, the Court noted that it had power to dispense with the need for a formal application notice under CPR 23.3(2)(b). It was the substance of the application and not the form which was important.
However, the Court sounded a note of caution:
“if the landlord could not show that it had made a genuine mistake in its error of procedure or that it knew that it was not entitled to proceed in this way and of course if it knew that it was not entitled to possession, then the outcome of the case would have been very different”.
Whilst Cardiff was given some leeway, the courts may be less forgiving in the future. Now that the need to seek permission is well-known, it will be harder for landlords to obtain retrospective permission.
- Where the warrant was obtained before the decision in Cardiff v Lee, the courts are likely to accede to a retrospective application for permission.
- Where the warrant was obtained after the decision in Cardiff v Lee, it will take more to convince the courts that the landlord made a genuine error or that there is a good reason to grant permission.
There are likely to be a small number of cases where the warrant was obtained before Lee but which have not yet been executed:
- If the case is brought before the court because the tenant has applied to stay the warrant, an application for retrospective permission can be made in response as happened in
- Where a warrant was obtained without permission, but the court has already stayed execution following a previous application, the application for permission to enforce can sensibly wait until the tenant breaches the terms of the stay.
- Where there is no pending application and the landlord is simply waiting for the execution date, the landlord will need to decide whether to make an application for retrospective permission. As such an application can be made without notice to the tenant, and the number of such cases is likely to be small, it would seem that the sensible course would be to seek permission. Such an application should prominently identify the date for execution to ensure that the court deals with it before this date.
Can the effect of this decision be avoided?
No. The requirement to seek permission cannot be avoided. The Court of Appeal’s reasoning on CPR 83.2 emphasises that judicial scrutiny must be applied where a landlord claims to be entitled to possession following a breach of an SPO. We do not see that there is a way of rewording the terms of an SPO, for example, so as to avoid the need to seek permission or to grant permission in advance.
Incidentally, given the requirement for permission before enforcement of any SPO, this may be the final nail in the coffin of the form N28A order (often referred to as a “postponed possession order”).
What if we’ve already evicted someone based on a warrant obtained with permission?
The court has the power to set aside warrants of possession after eviction on the grounds that they were obtained by fraud or oppression. However, the Court of Appeal has previously held that a warrant obtained and executed without fault on the part of a landlord cannot properly be set aside for oppression (Jephson Homes Housing Association v Moisejevs  2 All ER 901).
Provided the landlord can show that the failure to obtain permission was a genuine mistake and not a deliberate failure, it seems unlikely that the court would find oppression or fraud.
There seems to be no reason why the landlord could not apply to correct the procedural default under CPR 3.10 after the warrant has been executed.
The key points to take away from the Court of Appeal’s decision in Lee are:
- Although the Court’s decision on CPR 83.2 was obiter, the message to landlords was unequivocal. Landlords must seek permission before obtaining a warrant following the breach of an SPO.
- Any application should provide sufficient evidence to demonstrate that a breach has occurred. This evidence will vary depending on the conditions of the SPO.
- The landlord can apply under CPR 3.10 to correct the procedural default where a warrant had been obtained under the “wrong” procedure. Therefore, it is possible for warrants obtained before the decision in Lee to be retrospectively validated. Such applications will be more difficult in respect of warrants obtained after
This question may be revisited by the Court of Appeal in the near future. Until then, the prudent landlord will follow the Court of Appeal’s guidance.