Civil practice and procedure – Suspended possession order – Warrant for possession – Respondent landlords applying for and obtaining warrant for possession on grounds that appellant tenant breaching terms of suspended possession order – Application made on wrong form without complying with requirement under CPR 83.2 to apply to court for permission to issue warrant – Court dismissing appellant’s application to suspend warrant – Whether court having power to dispense with requirement for permission – Appeal dismissed
The appellant was the tenant of a flat let to him by the respondent local authority on a secure tenancy under section 79 of the Housing Act 1985. In 2013, the respondents brought proceedings against the appellant for possession of the flat on the grounds that he had breached the terms of his tenancy and caused nuisance and annoyance. The court made a possession order but suspended it for a period of two years ending in September 2015 on terms that the appellant complied with the provisions of his tenancy agreement.
In 2015, there were disputed between the appellant and his neighbours, as a result of which the respondents decided to seek possession on the ground that the appellant had breached the covenant in his tenancy agreement against causing a nuisance or annoyance to neighbours. After warning the appellant of their intention, they applied to the court for a warrant for possession. Their application was made on the form applicable to an application under CPR 83.26, which applied in cases where the landlord did not need the permission of the court for the issue of a warrant for possession. The county court issued a warrant in August 2015.
In September 2015, the appellant applied to suspend the warrant, contending that the case was one where the permission of the court was required before a warrant for possession could be issued.
The district judge dismissed that application on the ground that the appellant had breach the terms of his tenancy and the warrant had properly been issued under CPR 83.26. The appellant’s appeal against that decision was dismissed by a judge on the different ground that, while the case was in fact governed by CPR 83.2, under which the permission of the court was required for the issue of a warrant, the court had power to dispense with the need for a prior application for permission pursuant to its case management power under CPR 3.1(2)(m).
The appellant appealed, contending that CPR 83.2 was mandatory and could not be waived, whether under CPR 3.1(2)(m) or otherwise. On the appeal, it was common ground that CPR 83.2 was the rule that applied to the case.
Held: The appeal was dismissed.
(1) Although it was not strictly necessary to decide for the purposes of the present appeal, the better view was that the judge had correctly decided that the case was governed by CPR 83.2. He had correctly considered that CPR 83.26 was directed, as far as landlord and tenant cases were concerned, to simple situations where the court had made an order for possession and the tenant had not complied with the order and had remained in possession after the date for possession and refused to leave. CPR 83.2 applied to particular types of warrants of possession described in CPR 83.2(3), which included, under CPR 83.2(e), cases where, under the relevant judgment or order, “any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled”. When the respondent obtained a possession order, it became entitled to the remedy of possession subject to the fulfilment of the condition that the tenant did not comply with the terms of suspension. On the proper reading of CPR 83.2, such a case fell within its terms.
(2) The purpose of CPR 83.2 was to provide a layer of judicial protection for a tenant whom the landlord wants to evict, by providing for judicial scrutiny of the landlord’s case that the conditions had been breached. The scheme of CPR 83.2 was clear that, in the case of conditional orders for possession, all landlords should have to establish that the condition entitling them to possession had been fulfilled before the tenant became embroiled in an eviction from his home. The respondents were therefore required to show that they had informed the court that the appellant had breached the terms of suspension. Although there should have been a two-stage procedure, involving an application for permission followed by application for a warrant, the respondent had provided the relevant information at the trial before the district judge. The issue in the case was therefore really about timing.
(3) The Civil Procedure Rules should be given a liberal interpretation and application that was designed to reduce costs and delay. Applying that approach, the error of the respondents in failing to seek permission for the issue of the warrant for possession was an “error of procedure” which could be cured under CPR 3.10. The respondents had made their application requesting the issue of a warrant on the wrong form. Nonetheless, their application was clearly connected with, and in error for, the application for permission under CPR 83.2 which they ought to have made. This was not a case where an application had not been made in time at all, but was simply a case where the application contained an error of procedure.
CPR 3.10 expressly stated that an error of procedure did not invalidate any step in the proceedings unless the court so ordered. That meant that the issue of the warrant was not invalid unless the court so ordered. The issue of the warrant was therefore voidable and not void. The court had remedied the error pursuant to CPR 3.10 by hearing the appellant’s application to discharge the warrant, and, after rejecting that application, validating the warrant despite the error in procedure. While there had been no application of the kind that was required by CPR 83.2, the court was empowered to dispense with the making of an order in that form: see CPR 23.3(2)(b). What mattered was the substance, and not the form, of the application: Steele v Mooney [2005] EWCA Civ 96 and Hashtroodi v Hancock [2004] EWCA Civ 652; [2004] 1 WLR 3206 applied; Vinos v Marks and Spencer plc [2001] 3 All ER 784 distinguished.
(4) Every case had to be dealt with on its merits. The outcome might have been different had the appellant not applied for a stay, since possession might then have been obtained without the tenant having the benefit of the important judicial pre-scrutiny for which CPR 83.2 provided. Further, this was a case where the respondents had made a genuine mistake in their error of procedure. The outcome might have been very different in a case where the landlord could not show that it had made a genuine mistake in its error of procedure, or where it knew that it was not entitled to proceed in that way. In such cases, there would normally be no question of the court validating the warrant. CPR 83.2 constituted an important protection for tenants and was not to be taken lightly. However, in the unusual circumstances of the instant case, the respondent landlords would have ended up in the same place even if they had taken the right procedure; accordingly, if the error were not remedied by use of the court’s power under CPR 3.10, that would simply cause extra cost and delay, contrary to the aims of the CPR. It followed that the judge had properly exercised his discretion to grant dispensation from the requirement for a permission application.
Cerys Walters (instructed by Duncan Lewis, of Cardiff) appeared for the appellant; Carys Williams (instructed by the legal department of Cardiff County Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read a transcript of Cardiff County Council v Lee
