- November 4, 2016
- By Timothy Waitt
- 0 comments
All Change – CPR 83.2 and Cardiff v Lee (Flowers)
The case of Caridff v Lee (Flowers) is being hailed as a key case for landlords and tenants. But it in fact tells us nothing that a good student of the CPR couldn’t tell you.
In a frequently occurring situation a landlord obtained a suspended possession order against the tenant. The landlord said the tenant had breached the order and requested a warrant. The tenant denied breach and requested a stay of execution. They lost – sadly so normal. But then the tenant pointed out something which very few people had noticed – that the court rules had changed in 2014.
In 2014 CPR 83.2 was introduced which applies to all courts and it requires that before a warrant could be obtained in the case of suspended order (note possession or money judgement it matters not) the courts permission was required.
This timely reminder makes the case important anyway. In fact, by the time the case got to the court of appeal this important point had been agreed between landlord and tenant. The court of appeal confirmed the very straightforward words of CPR 83.2.
The issue for the court of appeal was what happened when permission was required to get a warrant to evict but it hadn’t been done. Where did that leave landlord and tenant? The tenant said the landlord had broken the rules and needed to go back to the start and ask permission.
But the landlords said that to start again was an utterly pointless waste of the court’s time. The whole reason for permission to enforce a suspended order was required was to make sure that the order had in fact been broken. In this case, that issue had already been comprehensively decided in the landlord’s favour. Further the court had rejected the tenant’s request for a stay of execution.
How to proceed? The landlord said the court could correct procedural error’s using CPR rule 3.10. This was just such an error and given the background above the court could and should correct it. In this case the court was willing to oblige.
But the court was at pains to point out that it was not erasing the requirement for permission from the rules. The judge said landlords should not assume that the warrant would simply be retrospectively remedied. Even if the court agreed to correct the landlords mistake it could still penalise them in costs for it.
Where this will make a big difference is where tenants have been evicted and are trying to get back in. Previously without “oppression” the court couldn’t even consider merits of letting the tenant. Where permission for the eviction wasn’t obtained tenants will be able to take the case right back to the pre-eviction stage and argue why they should be given extra time. There is c
Clearly landlords must correct any failure to get permission and pre-eviction. Prior to eviction the court will normally remedy the error. But there are likely to be costs consequences and delay. Post-eviction the story will be different and expect to be sent back to the start.
The court should not be tolerating serial offenders though and where this is shown, even pre-eviction stage, expect the court to refuse to remedy the error.
One thing’s for sure – we’ve not heard the last of this.