Permission needed to seek warrant for breach of SPO

Tuesday 1 November 2016

Cardiff County Council v Lee [2016] EWCA Civ 1034, 19 October 2016 The appellant, Mr Lee, was the secure tenant of Cardiff County Council. On 3 September 2013, the court made a two year SPO on the basis of nuisance behaviour, on terms that Mr Lee should comply with the conditions of his tenancy.

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The appellant, Mr Lee, was the secure tenant of Cardiff County Council. On 3 September 2013, the court made a two-year Suspended Possession Order (SPO) on the basis of nuisance behaviour, on terms that Mr Lee should comply with the conditions of his tenancy.

Cardiff County Council v Lee [2016] EWCA Civ 1034, 19 October 2016

On 12 August 2015, following a three-month period of disputes between Mr Lee and his neighbour, having first warned Mr Lee that they intended to do so, Cardiff obtained a warrant of possession in respect of Mr Lee’s property. In doing so they used form N325, which does not require the court to grant permission in order to issue the warrant. The rationale for this was that it was thought that CPR 83.26 applied and that the court’s permission was not needed.

The warrant was duly issued, to be executed on 9 September 2015. Shortly before the eviction was due to take place, on 3 September 2015, Mr Lee applied to the County Court at Cardiff to stay the eviction. The application was dismissed by DJ Scannell, who held that CPR 83.26 applied and that permission had not been needed.

Mr Lee appealed. HHJ Bidder QC held, contrary to the finding of the judge below, that CPR 83.2 applied and not 83.26. CPR 83.2 provides that:

A relevant writ or warrant must not be issued without the permission of the court where... 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.

The effect being that Cardiff should have obtained the court’s permission prior to applying for a warrant.

However, the judge went on to decide that Cardiff’s failure amounted to a procedural defect which rendered the warrant voidable and not void. Since the substance of the application had already been considered in full by the DJ, there was no purpose to be served in requiring Cardiff to begin the process again by seeking permission.

In view of this, he exercised his power under CPR 3.1(2)(m) (the power to make ‘any… order’ for the purposes of furthering the overriding objective) to remedy the defect and dismissed the appeal.

The Court of Appeal dismissed a second appeal. Without hearing argument on the point (it being agreed between the parties) the court accepted that CPR 83.2 applied and that the court’s permission was required prior to the issue of a warrant for breach of an SPO.

However, the error was one of procedure within the meaning of CPR 3.10 and the court was therefore empowered, under CPR 3.10(b), to make an order to remedy it. The judge had been correct to hold that the procedural error rendered the warrant voidable not void and that it had been appropriate, on the facts of the case, to waive the defect.

Commenting on the wider point, on the need for permission in order to obtain a warrant to enforce an SPO following breach, the court emphasised 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. I also hope that the Civil Procedure Rule committee will consider whether any amendment can be made to form N325 to make it clear that there are cases in which permission must be sought first.

Click here for the judgment.

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