Ascent Welcomes Proposed Changes To CPR 83.2

The Civil Procedure Rule Committee (CPRC) has been 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]. 

In Cardiff v Lee 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. That agreement 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. 

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 under the CPR provisions. These state that a warrant must not be issued without the permission of the court in any of the circumstances specified in such circumstances. 

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 the CPR rules. Failure to obtain the court’s permission to issue the warrant is a procedural irregularity, which makes the warrant voidable rather than void. 

Following the above Judgment, last year, the CPRC sought the views on permission requirements in respect of suspended orders. In other words, should there be a requirement for permission in all instances of breach, or should there be a difference between the types of suspension order leading to the requirement for permission. The consultation ended on 30 August 2017. 

The consultation outcome has now been considered by the Civil Procedure Rule Committee at its meeting over the summer.

Shilpi Jairath, Senior Associate at Ascent, said: “We are advised that, overall, the view has been taken that the requirement for permission to issue a writ or warrant in respect of any suspended order where the breach of the terms of suspension was by way of a failure to pay money, should be dispensed with. 

“As such, it has been agreed to redraft the CPR Rule 83.2(3) (e). In effect, the position will be restored back to that which was widely understood to be the process before the judgment in Cardiff v Lee. The proposed amendments are currently before the Parliament although it is anticipated that the rule change will be effective from 1st October 2018. 

“Further communication is expected from the CPRC in the coming weeks once the changes have been formally approved. This should also clarify the position on the relevant court forms and make clear what the positon is in relation to historic orders and whether there are any transitional arrangements. As yet, these aspects are not completely clear and we will closely monitor the situation.

“This is a welcome change and good news for the lenders as the proposed amendments will save on both time and costs.”