Issuing warrants for possession- the implications of Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034

On Thursday 27th October 2016, Becket Chambers hosted a seminar spanning a wide range of civil topics covering recent case law and updates. The aim of the seminar was to bring together Local authority lawyers, civil practitioners and other professionals. One of the cases discussed at length during the course of the seminar was the recent matter of Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034.

The brief facts of the case are that in March 2013 Cardiff County Council issued possession proceedings against its tenant, Mr Lee on the basis of anti-social behaviour. Some six months later, Cardiff County Council were awarded a suspended possession order against Mr Lee. The possession order was suspended for a period of two years provided that Mr Lee refrained from committing anti-social behaviour.

As is often the case in scenarios of anti-social behaviour, further incidents of such behaviour were reported in breach of the suspended possession order against Mr Lee. The Council filed a Form N325 and issued a request for a warrant for possession. An application was made by Mr Lee for the Court to stay the warrant and a hearing date was fixed. At the hearing, the District Judge dismissed Mr Lee’s application. Mr Lee appealed this decision.

On appeal, the Circuit Judge considered Civil Procedure Rule 83.2(e) and whether Cardiff County Council had to apply for permission from the Court before issuing the warrant. The Court found that the Council had not followed the correct procedure as it had failed to obtain permission but this was subsequently excused by the Court by virtue of Civil Procedure Rule 3.10 and the wide discretion this affords the Court.

Once more, Mr Lee appealed the decision made by the Court, this time to the Court of Appeal. Largely, the matter in this particular case was whether the Court should exercise its discretion under Civil Procedure Rule 3.10 in the specific circumstances.

However, unintentionally this particular case has also highlighted the onus on landlords (including Local Authorities) when a suspended possession order is allegedly breached by a tenant.In the judgment for Cardiff County Council, Lady Justice Arden was unequivocal about the correct procedure that landlords should be following in such scenarios.

“I reiterate that CPR 83.2 constitutes an important protection for tenants. It is not to be taken lightly. Social landlords must ensure that from now on their systems are such that the same mistake will not be made in future”.

Whilst not new law, the judgment in this case has left no shadow of doubt that landlords (whether social landlords or private) must formally apply for permission before obtaining a warrant. At the seminar, it was debated amongst the Local Authority lawyers and other legal professionals present as to how this matter could be dealt with. It was suggested that at the stage of obtaining the suspended possession order, the Judge is asked to dispense with the need for the landlord formally obtaining permission before a warrant is sought. However, after much discussion and careful consideration of Rule 83.2(4) and the need for supporting evidence of the breach, it is clear that this is not a viable option.

There are clearly severe disadvantages now faced by landlords following the case of Cardiff County Council including not only time delays but also additional costs.Furthermore, it is also very unlikely that the landlord will ever recover costsdue to the nature of the circumstances. However, they can take solace in the fact that the application using form N244 will incur a relatively small fee of £100. Additionally, permission applications may be made without notice and without the need for a hearing. But what remains clear is that the Court have now secured the extra protection of a tenant that CPR 83.2 provides and put landlords on notice that any failure to comply will be taken very seriously.

If you are interested in attending any further seminars hosted by Becket Chambers, please feel free to contact the clerking team at to discuss upcoming events.