Enforcement of suspended orders – alignment of procedures in the County Court and High Court

This is a consultation exercise by the Civil Procedure Rule Committee

This consultation begins on Wednesday 28 June 2017
This consultation ends on Wednesday 30 August 2017

Introduction

The Civil Procedure Rule Committee (CPRC) is considering whether amendments are required to rules and forms in light of the Court of Appeal judgment in Cardiff City Council v Lee (Flowers) [2016] EWCA Civ 1034.

The consultation is aimed at all users and potential users of the civil justice system in England and Wales, and in particular at legal professionals, businesses, individuals and advice agencies in England and Wales.

 

Background

In Cardiff v Lee (Flowers) [2016] EWCA Civ 1034 (http://www.bailii.org/ew/cases/EWCA/Civ/2016/1034.html) the claimant landlord had obtained a possession order against the defendant secure tenant on the grounds of breach of the terms of the tenancy agreement prohibiting anti-social conduct. The order was suspended for two years on condition that the tenant complied with the provisions of his tenancy agreement, which contained covenants against causing a nuisance or annoyance to neighbours. Following further complaints from neighbours of the tenant, the landlord applied for the issue of a warrant of possession. It did so by lodging form N325, following the administrative procedure set out in CPR 83.6.

The warrant was issued and the bailiff served notice of the date of intended eviction. The tenant’s application to stay execution of the warrant was dismissed by the District Judge and his subsequent appeal was dismissed by the Circuit Judge.

On appeal to 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 required by CPR 83.2. In short, CPR 83(2) states that a ‘relevant writ or warrant’ (which includes a warrant of possession) must not be issued without the permission of the court in any of the circumstances specified in CPR 83.2(3)(a)-(f).

In particular, CPR 83.2(3)(e) provides that permission to apply for the issue of a warrant of possession is required where “under the 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.”

At paragraph 7 of the judgment in Cardiff v Lee, Arden LJ said –

it is not strictly an issue before us whether the judge was right on CPR 83.2 but I would take the view that he was clearly right to apply that rule for the reason that he gave. In other words, when the respondent obtained possession 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. In my judgment, that is how that rule should be read.”

Thus the rule affords what Arden LJ described as an important safeguard for tenants by requiring landlords to demonstrate to the court through a process involving judicial (and not merely administrative) scrutiny that the condition upon which the landlord’s right to recover possession rested is satisfied before embarking on the administrative process under CPR 83.6 for the issue of a warrant.

Prior to the case of Cardiff v Lee none of those involved in the process of enforcement of possession orders had recognised the significance of CPR 83.2(3)(e) in relation to possession orders suspended simply on terms as to payment of rent or mortgage instalments and arrears. The “important safeguard” afforded by this rule was one of which tenants and borrowers were unaware, consequently no applications were made for permission and warrants were issued as of right.

It should be noted that CPR 83.2 applies to warrants (but not writs) of possession. The corresponding rule, dealing with writs of possession is CPR 83.13 which provides that a writ of possession to enforce a judgment or order for the giving of possession of any land will not be issued without the permission of the court save as provided in sub-paragraphs (3) (trespassers) and (6) (mortgagees).

Thus in the High Court the requirement for permission affords a measure of protection akin to that identified in Cardiff v Lee to a tenant regardless of whether the possession order was suspended.

It is clear from the judgment in Cardiff v Lee that an application to enforce a right of possession in the County Court by means of the issue of a warrant of possession on the basis that the terms of a suspended possession order have been breached must be made in accordance with CPR 83.2 and that failure to obtain the court’s permission to issue the warrant is a procedural irregularity, albeit one which renders the warrant voidable rather than void and is capable of cure by means of the exercise of the court’s discretion under CPR 3.10.

CPR 83.2(4) provides that an application for permission may be made by way of Part 23 application (N244) and that the landlord must –

“give such…information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it.”

The issue raised by Cardiff v Lee is not confined to suspended possession orders. The definition of “relevant writ or warrant” in CPR 83.2 includes not just warrants of possession but also –

  • writs and warrants of control;
  • writs of execution, and
  • warrants of delivery.

Thus the requirement for permission to issue a warrant applies to an order for delivery up of goods acquired by way of hire purchase or conditional sale where the order is suspended, for example, upon condition that the defendant pays the monthly contractual monthly instalments and a sum in respect of arrears. Indeed, it is arguable that the requirement for permission also arises in relation to proposed enforcement of any money judgment payable by instalment as the judgment creditor’s entitlement to the remedy of immediate recovery of the entire judgment debt is, by reason of the provision for payment by instalments, rendered subject to the fulfilment of a condition, namely payment of the instalments as they fall due.

Part 83 Writs and Warrants – General Provisions is attached and can be seen here.

Forms N323, N324, N325, and N445 can be seen here and prescribed form of notice as set out in The Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations 2010 here.

Consultation

CPR Part 83 Writs and Warrants – General Provisions introduced in April 2014 consolidated and updated most High Court and County Court rules on enforcement contained in Schedules 1 and 2 to the CPR and took into account the changes to enforcement brought about by the Tribunals, Courts and Enforcement Act 2007.

In a case proceeding in the High Court permission is required to issue a writ following a possession order, except in respect of claims against trespassers and mortgagees. In a matter proceeding in the County Court, the effect of CPR 83.2(3)(e) is that permission is required where the judgment or order, is suspended on condition and it is alleged that the condition has been fulfilled.

The majority of claims in which an order suspended on terms is made are issued in the County Court and where enforcement follows it is usually through the County Court. A small number of such claims are issued in the High Court and may be enforced through the High Court. An order for possession (other than against trespassers) made in the County Court may only be enforced in the High Court with the permission of the County Court.

Following issue of a warrant of possession, the defendant (and any other occupier) is notified of the date of eviction by the bailiff thereby affording the defendant or occupier the opportunity to make an application to the court to suspend the warrant. Any such application will incur a fee unless the defendant is able to claim a fee remission.
Where permission is required to issue a writ of possession, such permission will not be granted unless it is shown that every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled.
The Court of Appeal decision makes it clear that where the court has made an order for possession suspended on terms, the requirement for judicial scrutiny of any application to enforce the order affords an important measure of protection, particularly for vulnerable tenants, against the actions of an unscrupulous landlord.

At the same time, the Court of Appeal recognized that in making the order for possession the Court has already determined that the claimant’s right to possession. Suspension of the order does not detract from the substance of the remedy, rather it simply delays execution of the order.

Where the order is suspended solely on terms as to the payment of rent or mortgage instalments (or, in the case of a return of goods claim, contractual payments) and arrears, the claimant’s right to recover possession may have been deferred for a significant period and a breach if the order will have resulted, inevitably, in further arrears having accrued. In any such case, where the conditions for the suspension of the order have not been met, the question for determination is that of how the claimant is to be required to establish their right to enforce their remedy.

An application pursuant to Part 23 for permission to issue a writ or warrant involves payment of a court fee (currently £100 for an application made without notice and £255 for an application made on notice). This fee is payable in addition to the fee payable for issue of the warrant or writ itself (currently £110 for a warrant of possession). Where the breach of the terms of suspension is a failure to pay money, the prospects of recovery of this outlay are likely to be remote and thus represent an additional and potentially irrecoverable financial burden on the party seeking to enforce their right to possession. Almost invariably these fees are added to the existing judgment debt thereby increasing the financial burden on the defendants, many of whom are amongst the most vulnerable in society and least able to pay.

The requirement for a permission stage, with concomitant costs and delay may act as a disincentive to landlords to agree to suspend orders and encourage them to seek an immediate possession order.

An assertion of failure to make monetary payments is easily demonstrable, whereas determination of whether a party has failed to comply with other conditions such as refraining from nuisance behaviour is likely to require a full hearing.

A defendant in respect of whom a warrant is issued may apply to the court either for suspension of the warrant on terms, or by way of challenge to the claimant’s assertion that the terms of the suspension have not been fulfilled. There is a fee to make such an application to court, but the fee remission scheme is in place for those unable to meet the fees.

The majority view of the CPRC members is that a distinction should be made between cases where an order is suspended on monetary terms and those where other conditions are imposed. Where an order is suspended on purely monetary terms it is not considered that the claimant’s having to seek permission is necessary to provide real protection for a defendant.

Conversely the committee’s view is that in respect of any order suspended on terms other than monetary payment, the requirement for an application for permission to issue a warrant is appropriate and should be preserved.

Issue of possession claims, orders made and evictions executed, County Court 2015

 Mortgage claims  Landlord claims (social and private claims) Total
 Claims issued 19,852  153,691*  173,543
 Possession orders made 14,015  118,467  132,482
 Immediate Order for  7,984 (57%)  71,365 (60%)  79,349
 Possession (% of orders made)  60%
 Suspended order for possession (% of possession orders made)  6,031 (43%) 47,096 (40%) 53,127 (40%)
 Possession warrants issued (multiple warrants may be issued per claim)  23,220 77,618 100,838
 Possession warrants executed by County Court Bailiffs  5,592 36,508 42,100

*of the 153,691 private and social landlord possession claims made, 38,402 were accelerated possession claims, 20,712 were private landlord possession claims, and 94,577 were social landlord possession claims.

Private and social landlord possessions (County Court)

Of the total of 118,461 possession orders made, 31,651 are accelerated possession orders. Reducing the total number of landlord possession orders by the accelerated possession orders leaves 86,810 possession orders and the number suspended 47,096. Suspended orders as a percentage of the number of orders excluding accelerated possession orders is 54%.

Possession claims and orders in the High Court

Data for the High Court is not as comprehensive. In 2015, 1,248 writs of possession were issued and 52,004 writs of control.

Get involved

For more information on how to get involved with this consultation, please contact Lindsay Felstead in our Housing team.