The Rules

On 6April 2014, the Civil Procedure (Amendment) Rules 2014/407 came into force.  One of the changes brought about by these amendments was to CPR 83.2 and the requirement for permission to issue certain writs or warrants.

CPR 83.2(3) provides that:

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 fulfiled.

Cardiff City Council v Lee

The effect of this provision was recently considered by the Court of Appeal in Cardiff City Council v Lee [2016] EWCA Civ 1034 (“Lee”).  In Lee, the Claimant had obtained a suspended possession order, suspended on terms.  The Defendant breached the terms of the suspended possession order and the Claimant applied for a warrant of possession in accordance with CPR 83.26 by filing the appropriate form (N325).  The Defendant applied to suspend the warrant of possession and this application was dismissed by the District Judge on the basis that the Defendant had breached the suspended possession order and the warrant of possession had been appropriately issued pursuant to CPR 83.26.  The Defendant’s subsequent appeal was also dismissed, although His Honour Judge Bidder QC did hold that CPR 83.2 was applicable.  The Defendant appealed. 

The Appeal

Before the Court of Appeal, it was common ground that CPR 83.2 applied.  Arden LJ, in giving judgment, noted that she agreed that CPR 83.2 applied as the Claimant was entitled to possession subject to the fulfilment of the condition that the Defendant did not comply with the terms of the suspension.  The issue on appeal was, therefore, limited to whether the court had the discretion to grant permission to issue a warrant of possession retrospectively or waive the non-compliance with CPR 83.2 in accordance with CPR 3.1(2)(m) or remedy the non-compliance with CPR 83.2 in accordance with CPR 3.10.

In dismissing the appeal, Arden LJ held that:

[CPR 3.10] expressly states that an error of procedure does not invalidate any step in the proceedings unless the court so orders.  That means that the issue of the warrant was not invalid unless the court so ordered.  The issue of the warrant was therefore voidable and not void, as the judge [HHJ Bidder QC] correctly held.  CPR 3.10 also states that the court may remedy the error.  Here it has remedied the error by hearing the appellant's application to discharge the warrant, and, having rejected that application, validating the warrant despite the error in procedure.  I appreciate that there was no such application as is required by CPR 83.2.  That application may be made by an application under CPR 23 but CPR 23.3(2)(b) states that the court can dispense with the making of an application in that form.  What matters therefore is the substance and not the form of the application.

Analysis

It is rather surprising that the Claimant in Lee conceded that they were bound to seek permission to issue a warrant of possession in accordance with CPR 83.2(3)(e) as it is at least arguable that, with the usual wording of a suspended possession order, the Claimant’s “remedy” is not “subject to the fulfilment of any condition” but, rather, that the effect of the “remedy” is suspended.  In addition, the wording of CPR 83.2(3)(e) seems more likely to be referring to the person seeking to enforce the possession order having to fulfil the condition e.g. the possession order being conditional on the filing of a document by that party.

Further support for the contention that CPR 83.2(3)(e) does not apply in such situations can be found in CPR 83.26(7), which provides that

...where an order for possession has been suspended on terms as to payment of a sum of money by instalments, the creditor must in the request certify-

(a)     the amount of money remaining due under the judgment or order; and

(b)     that the whole or part of any instalment due remains unpaid.

This requirement is reflected by the relevant form for seeking a warrant of possesson (N325), which requires the applicant (or their legal representative) to certify that, inter alia, “the whole or part of any instalments due under the judgment or order have not been paid”. 

On a separate note, there was no apparent consideration given to the fact that it is not only landlords (both social and private) that seek to enforce suspended possession orders but also mortgagees and what impact, if any, this has on the interpretation of the relevant provisions. 

Unfortunately, for the time being, those seeking to enforce suspended possession orders may have to accept that they are bound by the Court of Appeal’s view that CPR 83.2(3)(e) applies i.e. that permission to issue a warrant must be sought.  It is hoped that this point will be challenged sooner rather than later on the basis that the decision in Lee was made per incuriam or that the point regarding CPR 83.2(3)(e) was obiter rather than dicta.