CPRC consultation on enforcement of suspended orders: alignment of procedures in the County Court and High Court. Law Society response

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1 CPRC consultation on enforcement of suspended orders: alignment of procedures in the County Court and High Court Law Society response August 2017

2 Response document CIVIL PROCEDURE RULE COMMITTEE CONSULTATION Enforcement of suspended orders alignment of procedures in the County Court and High Court 28 June August 2017 The Civil Procedure Rule Committee would welcome responses to the following questions set out in this consultation paper. Please your completed form to or send it to Jane Wright, Post Point 3.42, Ministry of Justice, 102 Petty France, London SW1H 9AJ About you Full name: Mary Fapojuwo Job title or Job capacity in which you are responding (eg member of the public etc): Policy Assistant If other please specify: Company name/organisation (if applicable): The Law Society Postal address and postcode: 113 Chancery Lane, London, WC2A 1PL address: If you would like an acknowledgement of receipt (other than the automatic response sent on receipt of a response sent by ) please tick this box. If you are a representative of a group, please tell us the name of the group and give a summary of the people or organisations that you represent: The Law Society of England and Wales ("The Society") is the professional body for the solicitors' profession in England and Wales, representing over 170,000 registered legal practitioners. The Society represents the profession to parliament, government and regulatory bodies and has a public interest in the reform of the law. We welcome the opportunity to respond to this consultation, which was been prepared on the Society's behalf by members of our specialist Housing Law Committee. The Committee is made up of both landlord and tenant representatives working in both England and Wales. Date: 29 August 2017

3 Response to Questions Permission requirement in respect of suspended orders Question 1: Do you think that additional safeguards (namely a requirement for an application with supporting evidence and judicial oversight) should apply in all cases where a suspended order is made and the claimant wishes to enforce the order? Suspended orders can result in loss of a home or other important assets. In the interests of fairness, claimants should be required to satisfy the court that a defendant has breached the terms of an order before they can benefit from enforcement. Requiring permission to issue a warrant would therefore provide a useful safeguard for defendants in the County Court. Although we agree with the view that where the court has ruled that a claimant has a right to a remedy (for example possession), claimants should be able to enforce that right as easily as possible, this must be carefully balanced with the needs of defendants, some of whom will be highly vulnerable. A mandatory permission stage for all suspended orders will help deter landlords and other claimants from seeking to execute an order out of impatience. However additional judicial scrutiny must not deter claimants from agreeing suspended orders. We do not believe that judicial scrutiny is only effective in the form of a full hearing. For some suspended orders, for example those suspended on condition of payment, a full hearing to satisfy the permission criteria may simply result in unnecessary delays.

4 Question 2: Should certain types of case be excluded from the additional safeguard (e.g. possession orders suspended on condition of payment of rent or mortgage instalments and arrears, return of goods orders etc.). If so, which types of cases do you think should be excluded and why? Although we agree with the view of the Civil Procedure Rule Committee that it will be 'easily demonstrable' when a defendant has breached the conditions of an order suspended purely on monetary terms, we do not agree that these case should be excluded from the permission stage as such cases can involve highly vulnerable defendants. Rather than creating a two-tier route for enforcement, it may be more beneficial to introduce a rebuttable presumption that permission will be needed before a claimant can request issue of a warrant. The trial judge should be given the discretion, when making the suspended order, to decide at that stage whether permission will be needed or can be dispensed with. The order should reflect that decision and the consequences communicated to the parties. Alternatively, if the CPRC concludes that a distinction should be made between orders suspended on condition of payment, we suggest that permission should be decided on the papers. Removing the need for a full hearing would allow defendants to retain the intended benefits of Rule 83.2 and benefit from judicial oversight, whilst limiting the additional financial burden on claimants. A paper application should also provide swifter resolution for claimants and prove less onerous on court resources.

5 Question 3: If you do not think that a permission stage for issue of a writ or warrant is required in respect of possession orders suspended on terms as to payment of monies, do you think the rules should require that evidence of the breach of those terms must be included with the request to issue? We do not agree that the permission stage should be dispensed with for any cases. There will be some claimants who will seek to issue a warrant as of right, even where a defendant has not breached the terms of an order. To safeguard against such practice, we support the suggestion that the rules should be changed to require claimants to provide evidence of the breach of the terms of the suspended order to justify a request to issue a warrant. This will ensure that the court's wishes are upheld and defendants are not denied the time to resolve the dispute. We do not believe that requiring evidence will prove onerous for claimants. Question 4: If you do not think that a permission stage for issue of a writ or warrant is required in respect of orders (other than possession order) suspended on terms as to payment of monies, do you think the certification required on the request form is sufficient or should further assurances that a breach has been committed be provided by the claimant? We do not believe that certification alone should be enough to satisfy the court that a breach of the terms of an order has been committed. For the reasons mentioned above at question 3, we would suggest that further assurances, showing the defendant's failure to make the necessary payments, be filed along with the request form.

6 Question 5: Should the request for an issue of a warrant or writ include certification by the claimant as to whether permission is required to issue and/or if permission is required to include certification that an order for permission has been made and the date of that order? Please give your reasons. We do not believe certification alone is sufficient. It is not difficult to imagine instances where a lay claimant may be unaware that permission to issue a warrant will be needed. However, if the CPRC concludes that certification would be a useful indicator to the court, we agree that including a requirement for details of the order for permission is a necessary and useful way to highlight this stage in proceedings to claimants. We recommend that claimants should also be required to provide additional information, such as the order claim number, as well as the date the order was made. Question 6: Should an order giving permission be filed with the request to issue a writ or warrant? We believe that this will act as an important safeguard to satisfy the court that a breach of the suspended order has occurred and that the breach has been recognised by the court. This will mean that, at the stage of issuing a warrant or writ, the court can be reassured that the claimant has a right to the remedy sought, and that the defendant has committed the grievance complained of.

7 In addition, a requirement to file the order for permission will also highlight the need to seek permission to claimants, particularly as this will come as a significant change to practice (as demonstrated by Cardiff v Lee). Question 7: Do you think that the rules for issue of warrants in the County Court and writs in the High Court should be aligned in respect of permission requirements? Please give your reasons. As highlighted in the consultation document, most cases in which a suspended order is made are heard at County Court level. We have seen no evidence to suggest that the current variation in procedure between the County Court and High Court causes sufficient concern or confusion in practice to necessitate a change. However, if the CPRC concludes that it would be useful to align practice in the two courts, we suggest this should be to: require permission for all suspended orders, including on monetary terms, or make it a requirement that a tice of Eviction must be served for all High Court writs and County Court warrants. This will ensure that all occupants have the opportunity to apply for relief.

8 Applications for permission Question 8: Should the rule be modified to make it clear that where permission to issue the relevant writ or warrant is required, an application for permission to issue a relevant writ must be made by way of application under Part 23? Given the scale of misunderstanding and confusion on this issue, we agree that the rule should be modified to make it clear that an application must be made under Part 23 as that would provide certainty for court users and help avoid confusion, and delays in the court process. Other safeguards for tenants and occupiers - Mortgagee and Rent Possession cases Question 9: Do you think the current provisions which require a mortgagee to serve notice at the mortgaged property at least 14 days before the date on which eviction is scheduled to take place and, in the case of both mortgagees and tenants, the visit of the bailiff and use of N54 where appropriate provide sufficient protection to the defendant or other occupiers and allow them sufficient opportunity to make an appropriate application to court should they wish to do so? We do not agree that 14 days provides sufficient protection to tenants of mortgagors as this may be their first notification of the proceedings. Tenancies are binding on mortgagees where the tenancy was granted before the mortgage, or, if granted after the mortgage, where the mortgagee has

9 previously recognised the tenant as such. We therefore suggest that this notice period is extended to 28 days. On receipt of the notice of execution, some tenants will attempt firstly to understand their predicament, and then to find a suitable and speedy resolution, by contacting the mortgagee directly. This takes place outside of the court, but does not stop time running on a notice. Where informal attempts to reach a resolution are unsuccessful, tenants may find they have very little time to obtain and digest legal advice and navigate the court process to seek to suspend execution of the warrant. This situation is even more time sensitive for those tenants who may seek to make use of the fee remission scheme. By extending the notification period, tenants would be given enough time to make sense of a difficult situation, begin their search for alternative accommodation, and access legal advice in order to navigate the court. This extended time may also save court resources as some tenants will inevitably secure alternative accommodation and therefore will not seek to suspend the execution of the warrant for possession. Money used for such an application can also be better put towards securing accommodation. In some cases at least, this may mean that mortgagees secure possession quicker than where possession is suspended for a further two months. Other comments you wish to make: The CPRC may wish to consider the benefits of streamlining the enforcement process by combining the application for permission with the application to issue a warrant. We believe this will help clarify the process of obtaining a warrant and ensure due process is followed, thereby minimising confusion and delays as well as limiting the financial strain on parties. Thank you for responding