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Consultation on changes to the Civil Procedure Rules for enforcement of suspended possession orders

Robert Brown considers a consultation exercise being carried out by the Civil Procedure Rules Committee.

Secure tenants have considerable protection from eviction under Housing Act 1985, s.85. When a court is making an order for possession against a secure tenant, or at any time before the execution of the order, the court may (if the order is based on one or more of the main grounds for possession) stay or suspend execution of the order, or postpone the date of possession for such period(s) as the court thinks fit. Where the court does so, it will usually attach conditions requiring payment of any rent arrears and other conditions as the court thinks fit. Similar protection is provided to assured tenants by Housing Act 1988, s.9.

From 6 April 2014, the enforcement of possession orders in the county court has been governed by CPR 83. Under CPR 83.2(3)(e), a warrant of possession must not be issued without the permission of the court 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 …”.

In Cardiff CC v Lee [2016] EWCA Civ 1034; [2017] 1 WLR 1751; [2016] HLR 45, the claimant local authority had sought to enforce a suspended possession order. The authority conceded before the Court of Appeal that where a landlord wishes to enforce a suspended possession order because the tenant has breached the terms of the order, the landlord is required by CPR 83.2(3)(e) to apply for the court’s permission before a warrant of possession is issued. The Court of Appeal considered in Lee that this concession was correct. (There has been some discussion whether the Court of Appeal’s view is correct; see the commentary by Stephanie Lovegrove in JHL 2017, 20(1), 16-19). The Court of Appeal went on to say that CPR 83.2(3)(e) provided an important protection for tenants and should not be taken lightly. Social landlords were entreated to ensure that they had systems in place to take account of this requirement.

The Civil Procedure Rules Committee has now issued a consultation exercise, Enforcement of suspended possession orders – alignment of procedures in the County Court and High Court.

According to the consultation document

“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.”

The consultation poses nine questions arising out of the decision in Lee, including whether the proposed distinction between monetary conditions and other conditions should be implemented in the CPR. The consultation is open until 30 August 2017 and the consultation document is available here.