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Enforcement of suspended orders - alignment of procedures in the County Court and High Court

Last updated: 30 Aug 2017

Consulting body:
Civil Procedure Rule Committee
Status:
Closed
Period of consultation:
Runs from 28 June 2017 to 30 August 2017
CML action:
Response submitted

The Civil Procedure Rules Committee (CPRC) has issued a consultation on whether amendments to rules and forms are required in light of the CA judgement in Cardiff City Council v Lee (Flowers [2016] EWCA Civ 1034.

The case highlighted a procedural irregularity whereby claimants were not routinely seeking permission to apply for the issue of warrants of possession, writs and warrants of control, writs of execution and warrants of delivery.  

The CPRC are seeking views on excluding the need for seeking permission from the court for orders suspended where the condition is payment of money, on the basis there are already sufficient other protections for the defendant; and on aligning the requirements of the High Court and County Court in respect of the requirement for permission.

UK Finance response

Since the Cardiff County Council v Lee (Flowers) ruling, mortgage lenders have seen county courts taking differing
and sometimes inconsistent views on what the claimant is required to demonstrate in order to grant permission to
enforce possession orders, despite the warrant request forms being amended.

Examples include different requirements being sought around evidence of monetary breach; the time over which the breach should cover; and in some cases, courts are looking at the wider circumstances of whether a lender should enforce, rather than focusing on CPR 83.2(e) which relates specifically to evidencing a breach of the terms of the suspended order.

The application for permission to issue a warrant also incurs payment of court fees, which, as the CPRC notes, will
add further costs, potentially increasing the existing debt of the defendant, and adding to the delay in resolving the
matter.

Anecdotally, some mortgage lenders have advised that borrower defendants can often be confused by the purpose
for the permission, and attend permission hearings to raise points about their circumstances which the permission
hearing cannot deal with.

Given the inconsistency and uncertainty currently being experienced by court users, there is a need for the courts
to provide greater certainty and consistency of approach to enforcement of suspended orders.

We support the view of the CPRC that a distinction should be made between cases where an order is suspended on monetary terms, and those where other conditions are imposed. We also agree that appropriate safeguards for the defendant are already in place, in respect of monetary claims, without the additional need for the claimant to have to seek permission to issue a warrant.

We have expanded on these views in our response to the consultation questions.

See our full response to the consultation below.