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A B C D E F G H I J K L M N O P R S T V W Y

Housing and Regeneration

If the cap fits…
Friday 16th February 2018

Introduction

The Court of Appeal made a decision in W Portsmouth & Co Ltd v Lowin [2017] EWCA Civ 2172 at the very end of last year which clarifies some tension between two costs provisions in the Civil Procedure Rules.

Part 36 deals with how costs are awarded when a Part 36 offer for settlement has been in play. CPR 36.17(4)(b) provides that if a claimant beats their own Part 36 offer then costs should be awarded on the indemnity basis.

Part 47 deals with the procedure for assessment of costs and CPR 47.15(5) provides that if proceedings do not go beyond provisional assessment then the maximum amount the court will award to any party as costs of the assessment is £1,500 plus VAT plus any court fees paid by that party.

The tension between these two provisions arises when the following question is posed: can the indemnity award provisions of CPR 36.17(4) dislodge the cap provisions of 47.15(5)?

The Lowin case battled with this all the way to the Court of Appeal and final clarity was reached on 19 December 2017.

The facts

The substantive claim was one for damages as the claimant’s mother had died from mesothelioma, contracted when washing her son’s clothes which had been contaminated by dust fibres via his employment by the defendant. The claimant was awarded damages and then the court turned to the matter of costs.

The claimant had marginally beaten her own part 36 offer on costs, and, following submissions, Costs Judge Master Whelan granted that costs should be assessed on the indemnity basis as per CPR 36.17(4). The claimant claimed £6,091 for the costs of the assessment proceedings.

Application of the cap

The Master then applied the provisional assessment cap, as per CPR 47.15(5), as it applied in this case. Master Whelan did this despite having awarded costs on the indemnity basis. This meant the claimant was only entitled to receive costs of £2,805 which was £1,500 costs plus VAT and the £1,005 court fee. This was significantly less than the £6,091 which she had claimed.

The reason given for the Master’s decision was as follows:


‘Assessment of the claimant’s costs of the assessment can properly be undertaken pursuant to CPR 36.17(4)(c) but this does not, in my judgment, dislodge the effect of CPR 47.15(5) which has the effect of trapping the ‘maximum amount the court would award’ to the receiving party to £1,500 plus VAT plus court fees which in the case was £1,005.’
 

Thus the question was answered in the first instance, but not to the claimant’s satisfaction…

 

High Court appeal

The claimant appealed Master Whelan’s decision on the costs cap in the High Court.

She argued that the Master had erred in law and principle when he capped the summarily assessed costs by reasoning that CPR 36.17(4) does not dislodge the effect of CPR 47.15(5).

The claimant also submitted that the Master had erred in not considering the decision in Broadhurst v Tan [2016] EWCA Civ 94.

In Broadhurst, the Court of Appeal considered the impact of CPR 36.1(4) on fixed costs.

In repsect of this case Master Whelan concluded as follows:
 

‘The decision in Broadhurst v Tan has, in my view, no application as there is a conceptual difference between “fixed costs” and, as here, assessed costs subject to the cap in CPR 47.15(5).’


However Mrs Justice Laing in the High Court reversed Master Whelan’s decision on appeal by applying the Broadhurst principle such that a party awarded indemnity costs after beating a Part 36 offer should be eligible for indemnity costs. Her reasoning behind this was that there are tensions between the indemnity and the cap concepts and she favoured the indemnity concept, concluding that the cap provision prevents an indemnity provision from being fulfilled.

As such the claimant’s argument was accepted and the appeal was allowed.  Thus the question was answered again but this time in a different way; and not to the defendant’s satisfaction…

Court of Appeal

The defendant appealed the decision of Mrs Justice Laing and the question was subsequently heard in the Court of Appeal. The defendant’s key grounds of appeal were that there is no tension between the two provisions and so Broadhurst does not apply. In the alternative the defendant purported that if there was a tension it should be resolved in favour of the cap rather than the indemnity provision.

On 19 December 2017 Lady Justice Asplin considered the grounds of appeal and approved Master Whelan’s original approach by finding Broadhurst to be irrelevant. She reasoned that a cap does not prevent costs being assessed on the indemnity basis, which is different to how a fixed fee would. She also said that a cap does not ‘affect the quantum of the costs which are being assessed under that rule’.

Explaining her decision further, Asplin LJ said:
 

‘[the cap] merely inhibits the amount which can be awarded, the assessment of the party’s costs having taken place on the indemnity basis as required by CPR rule 36.17(4)(b). If the party’s costs assessed on the indemnity basis were less than the cap, the full sum would be awarded…. It follows that, with great respect, I do not consider that the judge was right to conclude…that there is a material conflict between costs assessed on the indemnity basis and costs assessed on that basis subject to a cap.’


Following her judgment, Asplin LJ went on to consider whether there is a tension or conflict between the provisions of the CPR and whether they must be resolved.

Mrs Justice Laing in the High Court found that there was a conflict because the cap potentially derogates from the right to have costs assessed on the indemnity basis.

Asplin LJ disagreed with this conclusion as can be seen by her application of the rules to the Lowin appeal. Asplin LJ considered the drafting of the provisions and their application or disapplication as follows:


‘CPR rule 47.20(4) provides expressly that Part 36 shall apply to the costs of a detailed assessment subject to four express modifications which are irrelevant for these purposes. No mention is made of CPR Part 47.15(5) and it is not modified in any way. It seems to me that if it had been intended that that rule was to be disapplied in the case of an assessment of costs on the indemnity basis under CPR rule 36.17(4)(b) there would have been an express reference to it in either or both of the provisions or in rule 47.20(4). There is nothing in any of those rules to suggest that rule 47.15(5) should be disapplied or modified’.
 

For these reasons, the defendant’s appeal was allowed, unanimously, and the cap was applied. The Court of Appeal restored the decision of the Master.

Finally the question is answered: the indemnity provision from Part 36 does not dislodge the cap provision of Part 47. The limit is a final limit and this does not prevent a party from their right to indemnity costs, it just caps the resulting award from any indemnity assessment.

Commentary

This is an interesting decision and one that may be disappointing for many. An award for indemnity costs can sometimes have more use perceptively than financially. It shows a party being compensated fully for their efforts in having to bring or defend a claim. This perceptive rather than financial advantage is now even more pertinent in light of Lowin as, if the cap provision applies, then the desired financial sum will not be awarded in practice.

RPs will be concerned with keeping costs proportionate in any cases they are involved in. It follows then that when proceedings conclude at provisional assessment, seeking indemnity costs may not be proportionally worth it if the full financial rewards of doing so will not be reached.

Many RPs have difficulties recovering costs from the other side, be that because they are legally aided, of limited means or otherwise.  Therefore in practice, when aiming for proportionality, the perceptive value of a costs award can often be more important than the financial value.

There are of course still advantages to making a Part 36 offer, including receiving interest and costs, and there are still advantages to going for indemnity assessment of those costs. RPs will no doubt want to act reasonably and make reasonable offers and in due course be rewarded for doing so.

As mentioned above, an indemnity costs award is perceived as a win and reflects well on the receiving party regardless of how much money is actually awarded. In any event an award of less that £1,500 is still worth pursuing on the indemnity basis and in some circumstances, where the perception of a costs award is important, so will an award of more.


To read the full Lowin judgment click here.


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Changes for Section 21 notices – an updated form and accompanying leaflet
Thursday 25th January 2018

Notices can be served under section 21 of the Housing Act 1988 to require possession of a property let on an assured shorthold tenancy. The required paperwork has been updated recently and both private and social landlords should be aware of the changes.

Changes to Form N5B

HMCTS have released a new version of Form N5B to be used in relation to accelerated possession proceedings after service of a Section 21 notice.

The new version of the form now requires confirmation by any claimant landlord, be they a private landlord or a registered provider of social housing, that Energy Performance and Gas Safety Certificates have been provided to the tenant.

The updated form also requires confirmation from private landlords that requirements have been met in relation to deposits and provision of the Government’s “How to Rent” leaflet.

Changes to the accompanying leaflet

The Government has made some changes to its “How to Rent” leaflet which must accompany every Section 21 notice served by a private landlord.

If an incorrect version or no leaflet at all is attached to the notice then it may be invalid.

Checklist for Section 21 notices

All claimant landlords must ensure they use the new form N5B for new claims relating to tenancies that commenced on or after 1 October 2015.

Private landlords should ensure they have the up to date version of the “How to Rent” leaflet.

The notice should be served in duplicate with the tenant asked to sign and return the second copy in acknowledgement of receipt.

Don’t forget these notices should only be used in relation to assured shorthold tenancies.

Further guidance

For the up to date “How to Rent” leaflet click here and for the new version of Form N5B click here.

If you would like further advice or help preparing a notice or completing the new form please don’t hesitate to get in touch with Ian Alderson on ian.alderson@brabners.com or 0151 600 3000.

 


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Is possession really nine tenths of the law?
Tuesday 16th January 2018

Harry Hallowes of Hampstead Heath made the news in 2007 because he became the legal owner of land in one of the wealthiest areas of London, without paying for it. Mr Hallowes was evicted from his flat owned by the local council in 1987 and spent the next 20 years living on a small plot of woodland where he used scrap materials to build a makeshift home and essentially used the land as if it were his own.

At the time there was opposition from city dwelling visitors to the Heath who saw Mr Hallowes’ acquisition of his plot as an encroachment onto their cherished public open space. Nevertheless the application was worth it for Mr Hallowes who continued to occupy the land, potentially worth £2 million, and on his death last year benevolently left the land to two homeless charities.

Over ten years later it remains as interesting as it was then to look at how the law views occupation and the impact it can have on ownership.

More individuals and organisations than you might think live or operate from land to which they have no registered claim. They usually believe the land is theirs and use it as if it is which, if done for the requisite time in the requisite way, can make for a strong adverse possession application.

Generally, if an occupier has unauthorised, factual and intentional uninterrupted possession of land for at least ten years, to the exclusion of all others, then they may have a chance of registering, and therefore formalising, their ownership at the Land Registry by making an adverse possession application.

But is it worth it?

Such applications can be time-consuming, complicated and costly. Applicants need to produce as much evidence as possible to show that their occupation meets the prescribed requirements. Applicants’ lawyers need to prepare the relevant documents and check the evidence to ensure applications are not made in vain.

Occupiers may not feel this is necessary if they have been on the land for a very long time without challenge but there is always the chance that another potential owner could challenge their use of, or presence on, the land.

Making an application and registering ownership is securing an asset. This means the land can then be fully and freely used at the will of the owner, so far as the law permits. For example it could be sold on, used as security for a charge or inherited without hindrance by a beneficiary.

Only a successful adverse possession application and subsequent registration of ownership at the Land Registry will fully protect an occupier’s interest in land and future-proof their ownership from challenge.

It is good practice that assets are secured, but this is particularly the case with adversely possessed land. While the upfront costs and time it takes to prepare an application may seem daunting, the benefits officially owning the land will be worth it with costs saved through the avoidance of any future challenges.

 


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The Regulation of Social Housing (Influence of Local Authorities) (England) Regulations 2017
Thursday 16th November 2017

These Regulations were enacted on 15 November 2017 and come into effect on 15 May 2018. They will have a profound impact upon stock transfer associations (though not ALMOs). They have come about as a result of the Government’s general drive towards deregulation and their specific desire to remove RP borrowing from its balance sheet.

In brief, the effect of the Regulations will be to:

  1. Limit the number of Local Authority nominee board members to 24% of the total number of board members.
  2. Remove any requirement that a Local Authority board member be present at a meeting of the board for that meeting to be quorate.
  3. Remove any Local Authority voting rights in its capacity as a shareholding member of the RP (their votes will be allocated pro rata amongst the remaining voting membership).

Whilst the Regulations themselves are refreshingly short and simple, their very brevity does perhaps give rise to certain questions:

  • What impact will these have on stock transfer agreements? The Regulations are stated to override any conflicting contractual requirements but presumably controls within a stock transfer agreement that a Local Authority may have which are not in its capacity as a shareholding member (e.g. consent over the sale of a property) will remain.
  • What about the situation where the Local Authority is not a shareholding member but its nominee board members are? The Regulations only refer to the Local Authority losing its voting rights. There is nothing within the Regulations about the nominee board member losing his or her voting rights. However, it seems a little odd that the nominee does not lose his or her rights but the Local Authority does.
  • The Regulations state that the Local Authority cannot continue to hold any voting rights in its capacity as a shareholding member. However, presumably that does not necessarily mean that it cannot remain as a non-voting shareholder of the RP.

We had hoped that these issues would have been addressed but they haven’t been. The Regulations will require stock transfer associations to review and in all likelihood make amendments to their constitutions to reflect these changes prior to 15 May 2018. Whilst the Regulations will automatically override contradictory constitutions, as a matter of best practice the constitutions ought to be changed themselves to avoid any uncertainty.

Should you have any queries concerning these Regulations or any other governance issues please contact Rupert Gill


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Access for repairs
Thursday 31st August 2017

We have successfully obtained an access injunction at trial over two days on 30th and 31st August 2017 in the County Court at Liverpool on behalf of Liverpool Mutual Homes (“LMH”) against a tenant pursuing a housing disrepair claim but failing to allow access for repairs to be completed.

LMH have been trying to complete repairs since February 2017 and have persistently been refused access by the tenant.

Prior to proceedings being issued:

  • LMH had sent four separate appointment letters, each with a revised timetable of works;
  • LMH’s contractors had attended at the property in accordance with pre-arranged appointments on five separate occasions, only to be denied access each time; and
  • The tenant’s solicitors had failed to respond to correspondence requesting access on six separate occasions.

The denial of access appeared to be based on legal advice that it was not necessary for the tenant to provide access unless and until all works of repair were agreed.

In his judgment, His Honour Judge Gregory rejected an argument advanced by the tenant’s Counsel that where there is any ‘tension’ between a landlord’s statutory and contractual right of access and the Housing Disrepair Pre-action Protocol (“PAP”) or Government Guidance on housing disrepair claims from 2002 (“Guidance”), that the PAP and Guidance took precedence.

The Judge did not accept that a tenant only had a right to provide access where all works of repair were agreed and commented that the PAP envisages situations where the full extent of work would not always be agreed.

The Judge also stated that:

  • LMH had, on numerous occasions, provided a clear and detailed schedule of works that was entirely consistent with the requirements of the PAP, despite the tenant arguing otherwise.
  • So desperate was LMH to have the tenant engage with them that photographs were taken hand delivering letters through the tenant’s door.
  • LMH, who is a social landlord, had acted in a “patient, proportionate and reasonable manner”, such that injunction proceedings were clearly issued as a last resort.

On this basis His Honour Judge Gregory granted a 12 month access injunction against the tenant and ordered her to pay £5,500 to LMH by way of costs.

This is the second injunction with a costs order that we have obtained on behalf of LMH in just over two weeks on similar facts. The tenant in each case was represented by Driscoll Kingston Solicitors and Counsel, David Bennett.


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Disrepair costs: Time for change?
Wednesday 16th August 2017

Introduction
Anyone involved with housing disrepair claims will be interested in Lord Justice Jackson’s further review of civil litigation costs, published in his recent report of July 2017 (“the Report”).

The Report marks LJ Jackson’s second review of civil litigation costs, the first of which was published in January 2010.

These earlier Jackson reforms impacted quite significantly on personal injury litigation, which has resulted, in part, in an increase in housing disrepair claims where there are currently no fixed costs.

Allocation
Litigated cases, including housing disrepair cases, are allocated to “tracks” and each track has its own costs rules.

On the fast track or multi track, the general rule is that the loser pays the winners’ costs.

LJ Jackson states in the Report that this traditional approach of the winner recovering costs from the losing party “is a recipe for runaway costs”. He therefore recommends that all recoverable costs in fast track cases be fixed and that the figures be reviewed every 3 years.

The allocation limit for damages claims has increased over the years but the allocation limits for disrepair claims has repeatedly been missed off the agenda.

LJ Jackson proposes a matrix of fixed costs for all fast track cases and proposes that cases be placed into 4 bands of complexity. The fixed costs are higher the greater the band.

It is proposed that standard housing disrepair claims will fall within band 3 and that “complex” claims, which will be not be common, will fall within band 4.  

The Report proposes that each party will state their proposals for the appropriate banding in the protocol correspondence and that ultimately it will be for the District Judge on allocation to decide the band if it is in dispute.

What will it cost?
Using LJ Jackson’s proposed matrix of fixed costs for housing disrepair claims, the following are examples of the costs that would be recoverable in certain types of cases;

(A) Standard disrepair claim assigned to band 3, where the Claimant obtains an order for specific performance of works and damages of £5,000.00 at one day trial. Recoverable costs will be £10,021.00.

(B) Standard disrepair claim assigned to band 3, where work was completed pre-issue but claimant obtains damages of £5,000.00 at a 1 day trial. Recoverable costs will be £6,661.00.

(C) As in (B) above, but claim settles pre issue. Recoverable costs will be £1,863.00.

The Report recommends that some band 4 cases will allow recovery of counsel’s fees in addition to the matrix of fixed costs, namely for settling a defence or defence and counterclaim (£500.00) and for post issue advice or conference (£1,000.00).

However, if solicitors choose to instruct counsel in respect of other matters (e.g. allocation hearing or pre-issue conference), these fees should not be recoverable in addition to the matrix of fixed costs.

Welcome change?
There will always need to be a balancing exercise between access to justice and proportionality of costs.

The Report comments how housing disrepair cases “seldom qualify for legal aid”. That may be so, but there is currently a surge of claims being brought under conditional fee agreements and the costs of dealing with these is having a significant financial impact on landlords, particularly Registered Providers of social housing (RPs).

I act for many RPs across the Northwest and beyond and in my experience, the current costs of housing disrepair claims are grossly disproportionate. The legal costs being claimed by tenants at the conclusion of a case settled pre-issue is often 3 or 4 times the RPs own legal costs and usually 3 or 4 times the cost of works. Once proceedings are issued the costs inflate even more.

If LJ Jackson’s proposals are implemented by the Government, landlords can expect for cases to be dealt with in a more proportionate manner.

The limit on counsel’s fees would be a welcome change for landlords and will help to put an end to counsel being instructed pre-issue on straightforward cases and seeking to recover the costs from landlords.

The assessment of costs at the conclusion of a housing disrepair claim ought to be a more straightforward task for costs lawyers and the costs associated with the assessment of costs ought therefore to be reduced.

There is of course the worry that claims will be issued prematurely in an attempt to achieve the greatest cost recovery, or that claims will be exaggerated in order to achieve a higher banding on allocation, resulting in higher fixed costs.

There is of course still no provision in the pre-action protocol, or otherwise, for landlords to recover their own costs in cases brought where there is no merit in the case and the matter is disposed of pre-issue.

The changes, if implemented, will at the very least result in cost certainty.

Unanswered questions
There are some unanswered questions in the Report and landlords ought to take the opportunity of responding to any Government consultation in due course.

For instance, it is not clear whether the costs of repairs will be considered when assessing the appropriate banding of the claim.  If so, how will the costs be calculated? For instance, will it be the claimant’s or defendant’s estimate?

The report proposes that where there is a claim for specific performance, that element of the claim should be treated as the equivalent of a claim for £10,000.00 by way of damages.  What if the work is completed mid-litigation? Or what if the damages and specific performance claim are less than the fast track limit?

What next?
It will now fall to the Government to consider the Report and to thereafter set out their own proposals for reform to go to public consultation.

This will enable landlords to have a say in these important changes.

Housing disrepair has not been on the Government agenda for quite some time so I would urge all landlords to take any opportunity that comes to be heard.

To see a copy of the Report click here:
 


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Data Protection Act: Subject access requests
Monday 3rd July 2017

Take note that the Information Commissioner’s Office (ICO) has published an updated code of practice on subject access requests (SARs).

The update comes following recent Court of Appeal judgments in the cases of Dawson-Damer and others v Taylor Wessing LLP [2017] EWCA Civ 74 and Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd and Others [2017] EWCA Civ 121.

The main update relates to the obligations on data controllers in responding to SARs in relation to the "disproportionate effort" exception and SARs made for collateral purposes.

The code can be found on the ICO’s website at: https://ico.org.uk/for-organisations/guide-to-data-protection/principle-6-rights/subject-access-request/
 


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The Housing White Paper 2017 – Build, Build, Build!!
Friday 17th February 2017

What does it say?

  • The Government wants to plan for the right homes in the right places: In the past, Local Authorities have been allowed to calculate where housing needs are highest often resulting in difficult decisions being avoided.  Now the government will aim for a new standard methodology as to where demand is greatest to build.
     
  • Housing Associations have a vital role in plugging the housing deficit.  “In due course” a rent policy for social housing landlords will be announced.  This new rent policy should allow social landlords to borrow against future income.  The 1% rent reduction is in place until 2020. 
     
  • Housing Associations “belong in the private sector”.  Encouraging private sector borrowing, more risk, more joint ventures, more commercial thinking.  And if you don’t start thinking this way, you may find that you are pressurised to merge with another organisation that will.
     
  • There is an expectation that Housing Associations will “make the best use of whatever development capacity they have to meet social need”.  But make sure that your organisation doesn’t over-stretch its resources and find itself in dire straits.    Consider: what will happen in 2020? Would a new government perform a U-Turn on rent policy, with another rent reduction or a rent freeze?  Landlords need to be prudent and weigh up the risk.  Development work needs to be robustly stress tested to ensure your organisation knows its breaking point and allows some financial headroom.
     
  • There is also a microscope on Housing Associations’ efficiency and the need to improve performance.  This, the White Paper states, may be through merger.  The Government has made clear that its preference is to have a far reduced number of Housing Associations.  If you decide to build, you better be ready for the challenge both financially and in governance terms.
     
  • April 2017: the Government will introduce lifetime ISAs to allow people to save.  This will allow a 25% bonus on up to £4,000 saving per year.  These savings can be put towards a house or withdrawn at the age of 60.  Housing Associations should be looking at various tenures and target those who take advantage of this scheme. 
     
  • Help to Buy: a further £8.6 billion for the scheme to 2021
     
  • Starter Homes: for those with an income of under £80,000 (£90,000 in London). Previous larger schemes requiring 20% of new developments over a certain size to be starter homes have been shelved and will be replaced by an “expectation” in the National Planning Policy Framework that housing sites will deliver a minimum of 10% affordable home ownership units.
     
  • Extension of Right to Buy Discounts: the pilot with five housing associations was, according to the White Paper, a success and will now be expanded to a regional pilot and it is estimated this will allow a further 3,000 tenants to exercise their RTB.  Depending on the geographical area, this may have a negative impact on Housing Associations.  Again, we recommend stress testing. 
     
  • An additional £1.4 Billion for the Affordable Homes Programme.  The restrictions on funding have been relaxed so builders can build a range of properties including affordable rent. 

Conclusion

The White Paper doesn’t set out many ‘new’ ideas, but I can’t help thinking that this is an exciting time.  There is a lot of grant available, especially if you have land and are willing and able to develop.  And as long as you have a robust financial plan in place and the headroom to develop now seems to be the time to do this. 

The health warning is the same as ever, don’t over stretch, have a plan, have exit strategies in place, stress test your business model and ensure this is right for your organisation. 

The consultation on this paper is open until 23:45 on 2nd May 2017.  


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Court’s permission now required prior to seeking a warrant
Tuesday 25th October 2016

Stop Press:  This warrants further reading!

The Court of Appeal has handed down a significant judgment in the case of Cardiff City Council –v- Lee [2016] EWC Civ 1034.

The Court was tasked with determining whether Civil Procedure Rule 83.2 requires a landlord to first of all seek the court’s permission before applying for a warrant of possession upon a breach of a suspended possession order.

The common position until now appears to have been that permission was not required and upon breach of a suspended possession order (unlike breach of a postponed possession order), landlords simply needed to seek an eviction by way of application for bailiff’s warrant on court form N325. 

In this case the tenant had breached a Suspended Possession Order relating to anti-social behaviour.  The landlord applied for a warrant using the standard form N325 and the tenant applied for a stay of the warrant.

The relevant parts of CPR 83.2 that the Court considered are as follows:

83.2(3) a relevant writ or warrant must not be issued without the permission of the court where –

(e) 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 been fulfilled;

(4) An application for permission may be made in accordance with part 23 and must –

(a) identify the judgment or order to which the application relates;

(b) if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed.

The court decided the rules do apply when obtaining a warrant for breach of a Suspended Possession Order.

The Court said that the purpose of CPR 83.2 was “to provide a layer of judicial protection for a tenant whom the landlord wants to evict” and constituted an important protection for tenants, such that “It is not to be taken lightly. Social landlords must ensure that from now on their systems are such that [mistakes] will not be made in future”.

This rule was only inserted into the Civil Procedure Rules in 2014 and the Court of Appeal commented that the insertion of it “addresses what might reasonably have been considered to be a weakness of the system, namely that there was no judicial scrutiny of the landlord's case that the conditions had been breached”.

The Court commented that the Civil Procedure Rule committee may need to consider whether an amendment should be made to form N325 to refer to the need to seek permission in cases of Suspended Possession Orders.

What does this mean for landlords?

This decision has the following consequences for landlords:

  • It is now necessary to seek the court’s permission prior to seeking a warrant.
     
  • This applies to all breaches of Suspended Possession Orders (including in relation to rent and anti-social behaviour).  It does not however apply to an outright possession order.
     
  • The court has made it clear that landlords should ensure that their systems are such as to avoid procedural mistakes moving forward. The judgment is clear that an application is necessary so a misunderstanding or ignorance of the procedure is not now likely to be deemed a genuine mistake. 
     
  • It is possible for applications to be made without notice but only time will tell whether the court expects this to be the norm or not.
     
  • There may now be little difference between a postponed possession order (which has always required an application back to court prior to the execution of a warrant) and a suspended possession order.
     
  • Applying for a warrant by using form N325 and not seeking the court’s permission will result in an invalid warrant and could result in a tenant applying to have the warrant set aside.
     
  • There could be cost sanctions for a landlord who applies for a warrant without first of all seeking the court’s permission.
     
  • The cost of seeking a warrant in these circumstances is now going to increase as landlords will have to prepare an application notice and pay the fee (currently £255.00) and potentially attend a hearing to have the application heard (although a request can be made for the matter to be dealt with on paper).
     
  • It is likely to take even longer to obtain a warrant and the waiting times are already in the region of six weeks.

Please contact us if you have any questions or would like to see a copy of the judgment. 


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Join the Housing and Regeneration team for the Wirral Coastal Walk
Friday 20th May 2016


The Housing and Regeneration team at Brabners are taking part in the Wirral Coastal Walk on Sunday 12 June in aid of our 2016 chosen charity Crisis.
 
Crisis is a national charity that works to end homelessness by delivering life-changing services and campaigning for change. Homelessness is devastating, leaving people vulnerable and isolated. We believe everyone deserves a place to call home and the chance to live a fulfilled and active life.
 
“As we are dealing with housing matters in our daily job it’s valuable to be able to take part in an event like this and give something back in return” says Alistair Fletcher, head of the Housing and Regeneration team. 
 
Why not join us in this worthy cause?
 
Along with friends and family taking part with the team, why not join us for a fun day out whilst supporting this worthy cause at the same time? 
 
The walk is a total of 15 miles from Seacombe Ferry to the Wirral Country Park with great views and 4 and 10 mile completion points for those that want to do a shorter route.
 
If would like to join us, or indeed bring along a team from your organisation, please contact:
Natalya Killen on 0151 600 3052 or by email to natalya.killen@brabners.com
 
Donations to Crisis, can be made by visiting our JustGiving page.
 

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