First date warrant can be issued
 EWCA Civ 423
A warrant cannot be issued before the date on which it is ordered that possession be given up. However, in this case, although the warrant was premature and therefore a nullity the CA nonetheless upheld the prison sentence against the defendant. It did so because he had refused to comply with the possession order and had told the judge that he had no intention of complying with the order. That was a contempt that justified the imprisonment.
Permission to issue warrant
Court’s powers to validate
 EWCA Civ 1034
Following default in compliance with a suspended order for possession, the proper approach is to apply for permission to issue a warrant by application under CPR 83.2. The court can validate any error of procedure under CPR 3.10. The decision relates to a landlord seeking re-possession but it also applies to lenders.
A tenant (T) breached the terms of his secure tenancy of a flat. The landlord (L) obtained a suspended order for possession which T also breached. L filed a N325 Request for a Warrant of Possession of Land (which does not require the court’s permission to issue). The court issued the warrant, which T applied to stay, arguing that it was not open to L simply to file an N325 Request under CPR 83.26, but should instead have issued an application under CPR 83.2. At first instance the Court dismissed T’s application, finding that the warrant had been correctly issued under CPR 83.26. T appealed.
Decision on first appeal
The HHJ Bidder QC dismissed the appeal. He held that CPR 83.2(3) applied, which required the court’s permission to issue a warrant under paragraph (e) 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 not been fulfilled”. However, here he dispensed with the need for a prior application for permission to issue a warrant and dismissed the appeal. L appealed to the Court of Appeal.
(1) Whether the correct procedure for the enforcement of a suspended order for possession was by means of a N325 Request under CPR 83.26, or by an application under CPR 83.2. (2) Whether the court can remedy the use of the wrong procedure by using its case management powers under CPR 3.10.
Decision on the second appeal
The Court of Appeal dismissed the appeal. The Court held that CPR 83.2 contains an important protection for tenants, so that in the case of conditional orders for possession landlords have to establish that the condition entitling them to possession has been fulfilled before the tenant becomes embroiled in an eviction from his home. The N325 Request for a Warrant of Possession of Land was the wrong form of application; it was clearly connected with, and in error for, the correct form which was an application for permission under CPR 83.2(3).
It followed that this was a case which was within the court’s discretion under CPR 3.10 to cure the defect. An error of procedure does not invalidate any step in the proceedings unless the court so orders. This meant that the issue of the warrant was not invalid unless the court so ordered i.e. the warrant was voidable but not void, as the judge below had held. The court had remedied the error by hearing T’s application to discharge the warrant, and by dismissing it, validating the warrant despite the error of procedure. Although ordinarily an application should have been made under CPR 23, the court can dispense with an application under CPR 23.3(2)(b). L would have ended up in the same position if it had followed the right procedure.
The correct form to use where there is a suspended order for possession and the landlord is asking for permission to issue the warrant is Form 325A
Permission to issue writ
 EWHC 2110 (QB)
A landlord had given the tenant sufficient notice of the proceedings under CPR 83.13 in circumstances where he had written to the tenant before making an application for a writ of possession.
T, a tenant, was granted by the landlord, L, an assured shorthand tenancy of a property for a fixed term of 6 months. A further 6-month AST was then agreed also for 6 months. Subsequently, L served notice on T under s.21 Housing Act 1988. Later, following the issue and service of proceedings, a District Judge made an order for possession requiring T to give up possession and refused permission to appeal.
T then sought permission to appeal from the Circuit Judge, which was refused on the papers and further refused at an oral hearing.
In the meantime, an organisation for High Court Enforcement Officers, was instructed by L to undertake enforcement of the order and the HCEO issued an application seeking permission to transfer the case to the High Court for enforcement purposes pursuant to s42(2) County Courts Act 1984.
In that application notice, a director of the HCEO referred to having provided notice to the tenant. That notice was in two letters, one of which was sent to T before the application, stating that notice of the application for leave under s42 of the Act was being sought, “for permission to issue a writ of possession following permission from the Court Court” and suggesting T seek independent legal advice.
The HCEO then issued a without notice application in the QBD for an order under CPR 83.13(8) permitting the issue of a writ of possession to enforce the possession order which was granted on the same day by Master McCloud. A few days later the writ was executed and T and his family were evicted from the premises. A few days after that T applied to Master McCloud on a “without notice” basis asking that she set aside her order of 8 July. The Master stayed any further enforcement pending an “on notice” hearing of the tenant’s application, which came before Master Yoxall.
Master Yoxall dismissed T’s application. The Master held that what was required under present practice is not “actual notice of a hearing of the application to apply for permission”, but notice of the “proceedings afoot in relation to making an application to apply for permission to issue a writ of possession”. T then appealed to the High Court.
Decision on appeal
The High Court dismissed the appeal. The court held that the test for deciding whether permission to issue a writ of possession should be granted following an order for possession is whether “every person in actual possession of the whole or any part of the land…has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled” (CPR 83.13). The “notice of proceedings” does not necessarily require either the service of the formal notice of application for permission or even a more informal intimation by letter or other communication that the application will be heard on a particular day at a particular time. Either would be sufficient, but neither is required.
The High Court gave the following 'guidance' as to what may be sufficient in particular circumstances:
- Where there is a sole occupant who has full knowledge of the possession. proceedings, a reminder of the terms of the court order and a request to deliver up possession should be sufficient.
- Where the sole defendant has played no part in the possession proceedings, a letter containing information about the terms of the court order and a request to deliver up possession should ensure sufficient notice has been given.
- Where there are occupants other than the defendant to the possession proceedings, then a letter in similar terms to that sent by the HCEO in the instant case addressed to those occupants or ‘the occupants’ is required.
In the instant case, the Court held that Master Yoxall was right to dismiss the appellant’s application and to determine the appellant had been given sufficient notice for the purposes of CPR 83.13(8).
Enforcing old possession orders
 EWCA Civ 326
If a landlord has a possession order that it can no longer enforce, because the order is worded so as to prevent enforcement when arrears and costs have been paid off, is it entitled to issue a fresh possession claim? Held: Yes.
L had obtained a suspended possession order in 2001. Soon afterwards T failed to pay her rent and arrears as ordered.
In 2004 T paid off all her arrears and costs but L wanted to evict her due to her anti-social behaviour. The significance of paying off her arrears and costs becomes apparent from looking at paragraph 3 of the suspended possession order that was made in 2001:
"You must pay the claimant the total amount of £1,169.15 by instalments of £2.65 per week in addition to the current rent. The current rent is £84 per week… When you have paid the total amount mentioned the claimant will not be able to take any steps to evict you as a result of this order."(emphasis added).
The effect of the order for possession was that T remained in her flat thereafter as a trespasser. However, the wording of the order also prevented L from enforcing the order for possession. L sought to overcome this problem by issuing fresh possession proceedings, based on the fact that she was a trespasser. T argued that this was impermissible given the wording of the possession order and the fact that she had paid off all her arrears and costs.
The Court of Appeal characterised T's argument as meaning that she had become a perpetual tolerated trespasser; that "although in occupation as a trespasser she is, in law, irremovable" (para 40). Not surprisingly the Court dismissed this argument and drew attention to the way that T had misunderstood what L was doing. It was not seeking to enforce the 2001 possession order. It was merely asserting in fresh proceedings its right to possession on the basis that it held the freehold and T was a trespasser (para 41).
It might be thought that this case gives any landlord the right to issue a fresh possession claim against any person who has breached a suspended possession order. If the landlord could do this then it would be able to circumvent the defendant's ability to apply under either the Housing Act 1985 or 1988 (sections 85(2) and 9(2) respectively) to suspend execution of the warrant. However, the Court noted that there would be a "powerful reason" to prevent an attempt by a landlord to circumvent the statutory protection that applies to orders made under the Housing Acts by issuing fresh proceedings against trespassers (para 38). What made T's case different was the fact that the order that had been obtained under the Housing Act was no longer enforceable.
It should be noted that the wording of Form N28 (suspended possession order) that was used in this case changed later in 2001 with the deletion of the words that are italicised above. So the problem posed in this case may not arise that frequently.
However, a similar issue is likely to arise with landlords who have failed to enforce possession orders within six years. This lapse of time means that the court's permission to enforce is required (CCR Ord 26 r5). In these circumstances this type of situation could arise because the court's permission to enforce after six years will not readily be obtained (Patel v Singh  All ER 227, CA). In these circumstances the landlord should seek the court's permission to enforce and if permission is refused then it may issue fresh proceedings on the basis that the defendant is a trespasser.
This case and others illustrates the problems that can be created if possession orders are allowed to endure for several years. This may happen in a number of ways such as when (a) suspended possession orders are made when the circumstances require outright orders (b) landlords do not enforce promptly breaches of suspended orders or (c) judges suspend warrants in inappropriate circumstances.
(This case report was kindly provided by Jon Holbrook, barrister at 2-3 Gray's Inn Square)