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New consultation will launch on the Suspended Possession Order procedure

The Civil Procedure Rules Committee is planning to launch a consultation around the requirement for court permission to issue a warrant.

This comes after the introduction of a new procedure late last year, which has since been carried out inconsistently by country court hearing centres.   

The case of Cardiff City Council v Lee (Flowers) was decided in October last year. This case highlighted a requirement to obtain court permission before a warrant for possession can be applied for to enforce a suspended court order.  

The impact of this case was considered by the Civil Procedure Rules Committee on 9 December 2016. The outcome was that a new warrant request form was introduced.

Lenders were required to use this form and send a statement of payments due and received so that the court could see that the terms of the suspended order had been breached before the warrant was issued.

The new procedure has now been in place a number of months. There is a lack of consistency in the approaches being adopted by the various county court hearing centres throughout England and Wales. For instance, some county court hearing centres are listing hearings to consider whether permission should be granted to enforce suspended possession orders. This is adding time and cost to the enforcement processes.

The Civil Procedure Rules Committee is planning to issue a consultation on the effect of the Lee decision and whether the rule which requires permission to be obtained should be modified.

The Rules Committee have suggested that in mortgage cases where a possession order suspended on the payment of monies, there is no evidence that the court's permission adds extra protection to the customer. In view of this the Committee believe a distinction could be made in situations where a customer is in breach of their payment obligations, as opposed to the situation where there has been a breach of the mortgage terms or in a landlord and tenant case, a breach of the tenancy.

The draft consultation papers suggest that the Committee is planning to ask for representations about whether the requirement for court permission to issue a warrant where the possession order is suspended should be limited to non-financial order conditions and whether the existing procedure of sending an arrears statement with the warrant request is still required or whether, as an alternative, the lender gives a certificate that the terms of the suspended order have been breached when applying for a warrant.

The consultation has not yet been published in full and once we have full details we will provide further updates.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions

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