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Enforcing suspended possession orders

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management

21-08-2018

Is permission from the court still required?

The Civil Procedure Rules Committee have approved changes to CPR 83.2(3)e relating to whether permission is required to apply for a warrant for possession to enforce a suspended possession order following a breach.

Subject to ministerial consent, the changes will be effective from 1 October 2018.

Background

The changes follow a consultation that arose seeking views on whether amendments were required to the rules and forms in light of the Court of Appeal judgment in Cardiff City Council v Lee (Flowers) [2016] EWCA Civ 1034.

In that case, the claimant landlord had obtained a suspended order for possession against the defendant tenant in respect of  breaches of the terms of the tenancy agreement prohibiting anti-social behaviour.  Following complaints of further anti-social behaviour, the landlord applied for the issue of a warrant of possession by lodging form N325 as set out in CPR 83.6.  The warrant was issued and the tenant applied for a stay of execution of the warrant which was dismissed by the District Judge and also on appeal by the Circuit Judge.  In the Court of Appeal, it was common ground that the landlord ought to have sought permission to apply for the issue of the warrant as set out in CPR 83.2 (3)e.

As a result of this decision, claimants seeking possession (otherwise than where there is an outright order for possession) incur the additional costs and delay in seeking permission together with the risk and uncertainty of a court not accepting that further breaches have taken place.

The consultation ran from 28 June 2017 to 5am on 30 August 2017.  

What are the new rules?

Full details of the new rules have not been published, but it is understood that permission to seek a warrant for possession in a mortgage claim will not be required in order to enforce following a breach of an order suspended on monthly payments towards the arrears . However at this stage it is not yet clear whether a distinction will be made for cases where there is a non-monetary breach.

The changes would mean that a warrant of possession may be obtained by simply lodging form N325 as is the case with outright orders for possession.

Practical implications

If permission of the court is no longer required, it will mean that a claimant can proceed to enforcement following a breach without delay.  It will speed up the process and save costs for the claimant and also save on the court’s valuable time. 

Comment

The changes will be welcomed by claimants as whilst the possession process may still not be plain sailing (as it will remain open to a defendant to seek a stay of the warrant on the usual grounds), the removal of the requirement for permission (at the very least in cases where the breaches are monetary) should get a claimant to that stage more quickly and at less cost. A further briefing will follow when full details of the changes are published.

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