9 Park Place barristers instructed on both sides of Court Of Appeal case concerning Suspended Possession Orders

21 OCTOBER 2016

Suspended Possession Orders and Permission to Issue Warrants

On Wednesday 19th October 2016, two members of 9 Park Place appeared before Lady Justice Arden and Lord Justice Briggs, sitting in the Civil Division of the Court of Appeal.  Cerys Walters, instructed by Duncan Lewis and Co, appeared on behalf of the Appellant tenant whilst Carys Williams appeared on behalf of the Respondent Local Authority in the case of Lee (Flowers) v. Cardiff County Council. A copy of the judgment, which was handed down as an ex-tempore judgment on 19th October in Court 74 can be found here.

This matter was a second appeal brought following a decision of a Circuit Judge sitting at the Cardiff Civil and Family Justice Centre on appeal from a decision of a District Judge at the same court.

The issues considered in the proceedings centred around the interpretation and scope of changes to Part 83 of the Civil Procedure Rules relating to the issuing of warrants of possession that were brought in to force on 6th April 2014.

Following the decision of the Court of Appeal on 19th October 2016, it has been definitively confirmed that CPR 83.2 (as amended in April 2014) requires that all landlords must obtain permission from the court prior to requesting the issue of a warrant of possession pursuant to a suspended possession order that they allege has been breached.

Notwithstanding, and on the specific facts of this case, the Court of Appeal held that the failure by the Respondent to obtain such permission before requesting the issue of the warrant was an ‘error of procedure’ that could be remedied pursuant to CPR 3.10(b).  However, the reasoning contained in the judgment of Arden LJ, with whom Briggs LJ agreed, further confirmed that the application of CPR 3.10 to other cases and the exercise of the discretion contained therein (where available) was a matter to be considered in each individual case on its merits, taking into account all of the circumstances including any prejudice suffered by the tenant and whether there had been a ‘genuine mistake’ on the part of the landlord.

This decision will clearly have a substantial impact upon landlords in both the public and private sector who will now need to ensure that their systems for the enforcement of allegedly-breached suspended possession orders are fully compliant with the additional requirements of CPR 83.2.

If you have any queries about this case or either counsel please initially contact Michael Lieberman.