Cardiff County Council v Lee [2016]:

Permission of the Court required to enforce suspended possession order

The background

The respondent occupied a property as a tenant of the appellant local authority. His behaviour at the property led to a considerable number of complaints raised by neighbours relating to nuisance and annoyance. The local authority brought possession proceedings on this basis; the County Court granted an order for possession but this was suspended for two years, giving the tenant opportunity to comply with the terms of the tenancy.

The nuisance continued and further complaints followed within the two-year period, resulting in the respondent’s breach of the terms of suspended order. The local authority applied for a warrant for possession which was granted and an eviction date was set; the respondent’s application to stay the warrant was dismissed on the basis that he had breached the terms of the suspended order, and the respondent appealed.

The law

On appeal, it was held that the local authority had failed to apply to the court for permission to issue the warrant and had therefore defaulted under the Civil Procedure Rules Rules 83.2. The Rule states that permission of the court is required to the issue of any warrant for possession where "any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled".

Although the local authority should have applied for permission to request the warrant, the circuit judge on appeal held that the error could be remedied; Civil Procedure Rule 3.10 allows the court to use its discretion in instances where there has been a procedural error. The judge held that the facts of the case had been considered appropriately previously and therefore dismissed the respondent’s appeal.

A further appeal was then taken to the Court of Appeal by the respondent.

The decision

At the Court of Appeal, the local authority conceded that permission of the court to the request for a warrant was required under the CPR. Arden LJ noted that CPR 83.2 offered important protection for tenants, commenting:

“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 future".

However, in considering the argument surrounding use of CPR 3.10 in excusing a procedural error, the Court of Appeal did agree with the High Court that the error could be remedied; the mistake by the local authority was genuine, if the correct procedure had been followed the warrant would have been issued as a result of the respondent’s antisocial behaviour and the appeal was therefore dismissed.

JB Leitch comments on the decision:

“Cardiff County Council v Lee is an important decision for landlords. Although the appeal was dismissed on consideration of the wider facts of the case, comments by the Court of Appeal note that CPR 83.2 must be followed and landlords’ systems developed to ensure that omissions such as this do not reoccur. In order to enforce a suspended order for possession, permission of the court must be sought before a warrant for possession is requested. Where this procedure is not followed, there comes a risk that landlords will be unable to recover possession of properties.”