New interim process announced for enforcing suspended orders for possession

December 2016

New interim process announced for enforcing suspended orders for possession

In November 2016 we published an update regarding the Court of Appeal decision in Cardiff County Council v Lee (Flowers). Summarising this decision; the Court of Appeal stated that Civil Procedure Rule (CPR) 83.2(3)(e) required the court’s permission to be obtained before a warrant of possession could be issued where the possession order was made on suspended terms and the claimant believed those terms had been breached.  As a result, claimants could no longer continue with the enforcement process they had been following because the court’s permission was needed first.

The Civil Procedure Rule Committee (CPRC) have now considered the matter and decided to consult in the New Year on the current rules in the CPR and generally on safeguards available to tenants and occupiers.  In addition, the following interim measures have been put in place:

  • a new court form N325A, has been produced, which is to be used when claimants are requesting the issue of a warrant of possession where the order for possession was suspended on payment terms and the claimant contends that those suspended payment terms have been breached; or
  • when requesting the re-issue of a warrant previously suspended by the court on payment terms, claimants are now required to use an amended version of the existing court form (N445).

Both of these forms contain a requirement that “a statement of the payments due and made under the [suspended] judgment or order [of possession] is attached”.

Notably, claimants are no longer required (following the Court of Appeal CCC v Lee case) to consider preparing a standalone court application in form N244 to seek the court’s permission to enforce a breached possession order suspended on payment terms.  However, the interim measures brought about following the CPRC’s intervention will mean that:

  • it is still necessary to provide evidence of the payments due under the suspended order (as opposed to against the Contractual Monthly Instalment) and the payments made;
  • the request for permission to issue a warrant and the evidence in support will not be able to be made through the Possession Claims Online (PCOL) portal; and
  • it will no longer be necessary to incur the additional court fee that a standalone N244 application attracts, rather, just the pre-existing court fee for requesting the issue of a warrant of possession.

District Judges at each county court will consider the requests for permission to issue a warrant and in deciding those requests will, no doubt, consider the statement attached to the court form - to ensure that it provides sufficient evidence of breach of the payment terms of the suspended possession order. If it does, it is expected that an order granting permission to issue a warrant will be drawn by the court.

However, if the statement is not considered sufficient to evidence the payments due and made under the suspended judgment or order of possession, then the court may refuse the request completely (such that another request would have to be made with better evidence); or the matter may be listed for a hearing, where the claimant will be expected to provide better evidence. As both of those outcomes will result in further costs, claimants seeking to enforce possession orders suspended on payment terms may wish to seek immediate advice and guidance from their legal representative.