Liverpool Law Mar 2017

Law Update
Court’s permission required
to enforce a Suspended
Possession Order
For those of us involved in housing
law the Court of Appeal ruling in
Cardiff County Council v Lee
(Flowers) [2016] EWCA Civ 1034 may
be at the forefront of our minds.
When a residential landlord issues
possession proceedings against a tenant
due to a breach of tenancy they may
receive a Suspended Possession Order
(SPO) if the court can exercise
discretion.
If the SPO were then breached within 6
years the landlord would apply for a
bailiff’s warrant which would
automatically be granted and a date set
for eviction. The enforcement team at
the County Court would simply process
the request and the case would move
over to the bailiff’s department.
discretion to excuse a technical procedural error.
Lee appealed to the Court of Appeal where the
Council accepted that Rule 83.2 applied and
that it should have sought permission before
requesting the warrant. Lady Justice Arden
stated:-
“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 the future”.
The Court of Appeal did however agree with
the High Court in relation to 3.10 CPR.
Therefore to enforce a SPO landlords must now
apply for and obtain the court’s permission
under Rule 83.2. This can be done without
notice but there is still an application fee to pay
in addition to the warrant fee.
Pursuant to CPR 83.3 that warrant
should not be issued without permission
of the court.
In March 2013 Cardiff City Council
issued possession proceedings against
Lee relying upon grounds of alleged
anti-social behaviour. The court gave a
two year SPO.
In August 2015 the Council applied for
a warrant due to alleged breach of the
SPO and an eviction date was set,
however Lee applied for a stay. The
application was dismissed and Lee
appealed.
On appeal the Circuit Judge ruled that
the Council had not followed the
correct procedure as it had failed to
apply to court for permission before the
warrant was issued, per CPR 83.2(3)(e)
which states that a warrant for
possession cannot be issued with the
court’s permission where under the
order being enforced “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 court held that this Rule applied to
enforcement of the SPO and therefore
issuing a warrant for possession
following breach of the SPO without
having obtained the Court’s permission
was unlawful. Despite this, the appeal
was refused with the High Court
excusing the procedural error, referring
to CPR 3.10 which allows the court the
This process has clearly been overlooked for
some considerable time but may of course be
looked at again by the Supreme Court.
Phillip Coburn,
Associate Solicitor,
MSB Solicitors,
0151 281 9040
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