Cardiff County Council v Lee (Flowers)

Where a possession order makes entitlement to possession conditional on fulfilment of a condition, Civil Procedure Rules 1998 r 83.2 requires permission before a warrant is issued and provides judicial scrutiny. That protection is important, but failure to seek permission may be a procedural error capable of cure under r 3.10 where the landlord used an application clearly connected with the required application. The court may validate the warrant after hearing the tenant’s challenge, provided the discretion is exercised on the merits and consistently with the overriding objective. Relief is unlikely where the landlord knowingly bypassed the protection or lacked entitlement to possession. General r 3.10 cannot override an express prohibition in a specific rule.

The appellant tenant held a secure tenancy from the respondent local authority. A possession order was made and suspended on terms requiring compliance with the tenancy conditions. After an alleged breach, the council used form N325 under CPR 83.26 and obtained a warrant without first applying for permission under CPR 83.2.

A District Judge dismissed the tenant’s application to stay the warrant. His Honour Judge Bidder QC dismissed the tenant’s appeal on 18 January 2016, holding that permission was required but that the procedural defect could be remedied. The central issue before the Court of Appeal was whether the warrant could be validated under CPR 3.10 despite the failure to obtain prior permission.

1. Appeal dismissed. The council had used the wrong procedural route, but the Court of Appeal held that the defect could be cured in the unusual circumstances of the case.
2. CPR 83.2 applied. Where a possession order makes the remedy conditional on fulfilment of a condition and fulfilment is alleged, permission is required before a warrant is issued. The rule provides an important layer of judicial protection, particularly because the issue of a warrant had previously been treated in Southwark LBC v Brice as an administrative rather than judicial process.
3. Under CPR 3.10, an error of procedure does not invalidate a step unless the court so orders, and the court may remedy the error. The council had made an application by filing form N325. Although it was the wrong application, it was clearly connected with the permission application that should have been made. This was therefore not a case of failing to make any application at all. The warrant was voidable, not void.
4. The general principle in Vinos v Marks and Spencer PLC [2000] 3 All ER 784 remained applicable: general procedural language cannot override an express prohibition in a specific rule. CPR 83.2 contained no equivalent express prohibition. Steele v Mooney [2005] EWCA Civ 96 supported a broad, commonsense approach to “error of procedure”, with the discretion controlled by the overriding objective.
5. The court had heard the tenant’s challenge, found that the tenancy conditions had been breached, and concluded that the council would have obtained the same result had it followed the correct procedure. It was therefore appropriate to validate the warrant under CPR 3.10. The discretion must be exercised on the merits. A landlord who knowingly bypassed CPR 83.2, or who knew that it was not entitled to possession, would face a materially different outcome and might also face a costs sanction.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 1034, the appeal was dismissed on 19 October 2016.
• Cardiff Civil and Family Justice Centre: His Honour Judge Bidder QC dismissed the tenant’s appeal on 18 January 2016.
• District Judge Scannell: The tenant’s application to stay the warrant was dismissed on 4 November 2015. The judge found a breach of the tenancy and held that the warrant had been appropriately issued under CPR 83.26.