Armstrong v Ashfield District Council

A warrant for possession depends upon an extant possession order. Under section 85 of the Housing Act 1985, a suspended possession order may contain a proleptic discharge provision, but discharge is conditional. If, before the specified date, the landlord alleges breach of the suspension conditions and takes a relevant procedural step to enforce the order, the order is not automatically discharged pending determination of the alleged breach. A court may extend a time limit in a possession order retrospectively under CPR Part 3.1(2)(a), although strong grounds are required. A procedural departure does not invalidate enforcement where the substantive safeguard of judicial determination before eviction has been satisfied.

The respondent landlord obtained a possession order against the appellant secure tenant. The order was suspended on conditions, with provision for its automatic discharge on 4 June 2014. The appellant continued to breach the tenancy conditions, and the respondent applied for a warrant before that date, although it did not follow the procedure specified in the possession order.

A later county court trial found the breaches proved and permitted the warrant to proceed. Patterson J dismissed the appellant’s appeal. The Court of Appeal considered whether the possession order had been discharged before the county court hearing and whether the respondent’s procedural failure invalidated enforcement.

Appeal dismissed. Lord Justice Sales gave the leading judgment. Lord Justices Lindblom and McFarlane agreed.

1. The validity of a warrant for possession depends upon the existence of a valid possession order capable of execution. Under section 82 of the Housing Act 1985, issuing and executing a warrant form part of the process of executing the order.
2. Section 85 of the Housing Act 1985 permits a court to frame a suspended possession order containing a proleptic discharge provision. The House of Lords’ decision in Knowsley Housing Trust v White [2008] UKHL 70; [2009] 1 AC 636 confirmed that statutory flexibility. Such a provision operates on the footing that the suspension conditions are complied with and that neither party takes a relevant step seeking reconsideration before the end of the suspension period.
3. On the proper interpretation of the June 2013 order, the discharge date applied only if the relevant events had not occurred before that date. The respondent’s allegation of breach and application for a warrant therefore prevented automatic discharge. The possession order remained extant, and the county court had jurisdiction to try whether the conditions had been breached.
4. Alternatively, the December 2013 directions necessarily extended the deadline because they contemplated a merits trial after the stated date. The Court of Appeal also had power under CPR Part 52.10, now CPR Part 52.20, to exercise the powers of the courts below. CPR Part 3.1(2)(a) permitted retrospective extension of the time for compliance with the order, but strong grounds were required. Those grounds existed because both parties accepted a later trial, the dispute concerned pre-deadline events, the delay resulted from court resources, and the merits had been fully tried.
5. The failure to follow the precise procedure in paragraph 3 of the order was immaterial. Its substantive purpose was to secure judicial determination of any alleged breach before eviction, and that requirement had been met.

1. Court of Appeal (Civil Division) — dismissed the appeal: [2018] EWCA Civ 873.
2. High Court — Patterson J dismissed the appeal from the county court.
3. County Court — HHJ Pugsley dismissed the application to suspend the warrant after finding the relevant tenancy breaches proved.