The Court of Appeal has recently given judgment in the case of Cardiff CC v Lee (Flowers)  EWCA Civ 1034, which is concerned with the correct application to be made for a warrant for possession where there has been a breach of a suspended possession order (‘SPO’). It is not a simple application on Form N325 (request for warrant of possession of land) – that is appropriate where an outright possession order has been made. Instead, an application must first be made for permission to issue a warrant in accordance with rule 83.2 of the Civil Procedure Rules. Such an application may be made in accordance with Part 23 and may be made without notice being served on the tenant.
This decision is of great significance because the general practice until now has not been to make such an application. The Court of Appeal observed that rule 83.2, which was introduced in 2014 to “address what might reasonably have been considered to be a weakness of the system, namely that there was no judicial scrutiny of the landlord’s case that the conditions had been breached” (paragraph 3), requires a two stage procedure: application for permission followed by application for a warrant (paragraph 9). In giving the judgment of the court, Arden LJ stressed that this rule provides “an important protection for tenants” (paragraphs 23 and 31), where the landlord has to show that it has “informed the court (among other matters) that the appellant had breached the terms of suspension” (paragraph 9).
The main focus of the appeal in Cardiff CC v Lee (Flowers)  EWCA Civ 1034 (it having been conceded that rule 83.2 was the correct rule) shifted to whether the circuit judge was correct to dismiss the tenant’s appeal notwithstanding that no application for permission had been made in accordance with rule 83.2. The Court of Appeal held that he was. The District Judge at first instance had on the facts of that case, held a contested hearing at which the issue of whether there had been a breach had been considered along with any other arguments advanced by the tenant. The Court of Appeal relied upon rule 3.10 of the Civil Procedure Rules (an error of procedure does not invalidate a step in proceedings unless the court so orders, and can be remedied by the court), and rule 23.3(2)(b), which allows for the dispensing of an application in form N244, in coming to this conclusion. However, this does not provide carte blanche for the future for landlords to avoid following the correct procedure. The Court of Appeal placed heavy reliance in that case on the fact this was a genuine mistake, the social landlord did not know it was entitled to proceed as it had, and the fact that all issues had been considered by the judge in any event. Such a situation is unlikely to be available in the future because social landlords should be aware of this decision and Arden LJ said: “Social landlords must ensure that from now on their systems are such that the same mistake will not be made in the future.”
Some Brief Observations
It is now clear that permission needs to be sought from the court following an allegation of breach of an SPO and the court must consider whether there has been a breach before granting permission. However, the fact that this can be made without notice to the tenant and without a hearing potentially, I think, opens a can of worms. If a District Judge were to do this then they would presumably need to give the tenant the right to set aside the permission that had been given in accordance with the Civil Procedure Rules. My view (and it is just a view) is that the way forward is to make provision in future SPO’s for this procedure, in the same way that previously occurred in the old PPO’s. It strikes me that this would be of benefit to both parties as it allows everyone to know in advance what procedure will be followed in the event of a breach.