In Cardiff County Council v Lee (Flowers) (2016) EWCA Civ 1034, the Landlord had applied for a Possession Order of the Defendant’s flat on the grounds of breach of Tenancy and nuisance. The Court made the Possession Order, but suspended it for 2 years on the terms that the Defendant would not breach his Tenancy and/or cause any further nuisance.
Following breaches of the suspended Possession Order, the Claimant applied for a Warrant of Possession. The Court issued the Warrant for Possession and the Defendant applied to stay the execution of it. At first instance, the District Judge dismissed the Application having agreed with the Claimant that the Defendant had breached the terms of the suspended Order and that the Warrant for Possession was correctly issued. The Defendant further appealed and contended that the Claimant had breached Civil Procedure Rule 83.2 by failing to apply to the Court for permission to issue the Warrant. Civil Procedure Rule 83.2 states “any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled”. The Claimant conceded that CPR Rule 83.2 applied to suspended Possession Orders and that they ought to have sought permission. The Claimant did however attempt to rectify their error using Civil Procedure Rule 3.10 to excuse their failure to seek permission before applying for a Warrant. The Court of Appeal agreed.
Whilst the Claimant was able to remedy their mistake, this clearly added an extra cost and delay.
Landlords must obtain permission from the Court prior to requesting a Warrant of Possession against a suspended Possession Order (not needed for outright Orders for Possession).
Landlords should ensure that their Application for permission is made timely following any breach so that any delays in obtaining that permission can be budgeted accordingly together with the costs thereof. In order to keep costs down, the Application should request that the matter be dealt with “without a hearing” however it is understood that in Cardiff where this case was heard that those Applications are being listed for hearings.
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