Where a suspended possession order is in force and a party seeks to obtain a warrant of possession, landlords, whether social or private, must seek the permission of the Court under CPR 83.2. This has been confirmed in Cardiff County Council v Lee.
The council obtained a suspended possession order against one of its tenants due to breaches of his tenancy and nuisance claims. The order was suspended for two years on the condition that the tenant complied with his tenancy agreement.
However within the two year period, further disputes with a neighbour lead to the council requesting a warrant of possession. The council believed that CPR 83.26 applied.
The tenant applied to the court to stay the warrant, but his application was dismissed as it was held that the tenant had breached his tenancy and the application under CPR 83.26 was correct.
The tenant appealed. On appeal, the Court held that the warrant should have been issued under CPR 83.2(3)(e), however the appeal was still dismissed as the Court retained a power under CPR 3.10 to remedy procedural defects.
The tenant appealed again. The Court of Appeal dismissed the appeal, holding that:
The council’s failure to obtain the court’s permission under CPR 83.2 was a procedural defect and that the Court had the power to cure this under CPR 3.10
The issue of the warrant was “voidable and not void” unless the court ordered it so.
In this case, “a genuine mistake was made” by the council.
The Court stated that “it would simply cause extra cost and delay not to be able to remedy this matter by use of the court’s power under CPR 3.10” and that if there has not been a genuine mistake, the outcome would have been “very different”.
Landlords will now be faced with further costs and delay in making such an application. The Housing Law Committee have made recommendations to the Civil Procedure Rules Committee that, although such applications provide security for vulnerable tenants, they should be dealt with on papers to avoid unnecessary costs for both parties.
Therefore any such applications should set out, in full, any and all breaches by the tenant with supporting evidence to satisfy the judge on the papers and reduce the likelihood of a full hearing.