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Newsflash: Consultation in light of Cardiff CC v Lee (Flowers)

Key on tenancy document Print publication

30/06/2017

The Civil Procedure Rules Committee (CPRC) is consulting on whether changes to rules and forms in County Court and High Court procedures for the enforcement of suspended possession orders are required in light of Cardiff CC v Lee (Flowers) [1].  Walker Morris’ Banking Litigation experts Andrew Beck and Justin Coley explain.

The issue

In the 2016 Lee (Flowers) case, the Court of Appeal confirmed that Civil Procedure Rule (CPR) 83.2 requires a landlord to obtain permission from the court before applying for a warrant of possession where a tenant has allegedly breached a suspended possession order (SPO) [2]. Although the case dealt with a landlord and tenant scenario, the legal provisions in question are not restricted to that relationship and, by analogy, it seems that the same ‘additional’ requirement to obtain the court’s permission would apply to a lender looking to obtain a warrant against a borrower in breach of an SPO.

Since the Lee (Flowers) decision, there has been some uncertainty as to exactly how landlords/lenders should apply for warrants of possession in cases of alleged breach of SPO conditions and as to the courts’ approach to enforcement.

Whilst a temporary work around solution was issued by the CPRC, the consultation should consider if this is sufficient and whether the Civil Procedure Rules would benefit from revision.

The consultation

In order to obtain clarity for landlords, tenants, lenders, borrowers, possession practitioners and the courts, the CPRC has commenced a consultation which considers the current conflict between, on the one hand, the requirement for judicial scrutiny of any application to enforce an SPO as an important measure of protection for vulnerable tenants/borrowers; and, on the other, the fact that in making the order for possession in the first place, the court has already determined the claimant’s right to possession. The consultation therefore invites responses to a number of key questions which, in summary, ask:

  • Should there be a requirement for permission in all instances where there is an SPO or should there be a distinction between SPOs where the condition is payment of monies and SPOs where the order is suspended on other terms (such as undertaking to take an action, refraining from anti-social behaviour\nuisance etc)?
  • Should the difference between the requirement for permission in the High Court and County Court remain?
  • What procedural modifications (if any) should be made to the process for application to issue a writ or warrant of possession and do existing procedural requirements in mortgagee and rent possession cases suffice to safeguard occupiers?

The consultation is can be accessed here. All responses should be sent to CPRCconsultation@justice.gov.uk, to be received by no later than 5 pm on Wednesday 30 August 2017.

Walker Morris forms part of the consultation group and will be making a submission.

If you would like any further advice or assistance in connection with this consultation, please do not hesitate to contact Andrew Beck or Justin Coley, who will be very happy to help.

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[1] [2016] EWCA Civ 1034
[2] See Walker Morris’ earlier briefings for more detailed information on the case:  https://www.walkermorris.co.uk/publications/why-lenders-should-note-a-landmark-landlord-and-tenant-decision/; https://www.walkermorris.co.uk/publications/court-appeal-confirms-additional-step-landlords-suspended-possession-cases/

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