Bristol CC v Hassan (CA)
- Date: 23/05/2006
Citation: [2006] EWCA Civ 656
Full Name: Bristol City Council v Hassan & Anor, Bristol City Council v Glastonbury [2006] EWCA Civ 656
Related Barristers: Genevieve Screeche-Powell
THE FATE OF SUSPENDED POSSESSION ORDERS – FORM N28 WHAT HAPPENS NEXT?
With fortuitous timing, the Court of Appeal has now had the opportunity to provide much needed guidance on the question of the appropriate form of suspended order to make in possession claims. The Bristol appeals raise substantive points of law and practice of interest to all housing practitioners, and will have reverberations in county courts up and down the country.
The urgent need for clarification came about as a consequence of the Harlow v Hall decision. It considered the legal consequences of the current Form N28. N28 is the form of Order currently used in county courts nationwide for suspending a possession order on repayment terms. It specifies a date on which the tenant is obliged to give up possession in the first paragraph of the order. The Court of Appeal held that the effect of this was to terminate the tenancy as of the date fixed in paragraph 1 of the Order (typically 28 days from the making of the Order). This put paid to the previous understanding that the tenancy ended on the date the terms were breached, and thereafter, the former tenant’s continued occupation in the property is referable to that of a “tolerated trespasser”, who enjoyed none of the rights associated with a secure tenancy. That understanding was derived from Thompson v Elmbridge and Burrows v Brent, but in both those cases, the Court was concerned with a different type of Order.
Following Harlow v Hall, most county court judges took the view that the Housing Act 1985 required them to fix a date for possession in the Order, and continued to used Form N28. The DCA responded with an interim solution, the policy of which was to keep the tenancy “alive” until there was a breach, pending publication of a new form of order from the Working Committee. The interim solution operates as guidance. It was adopted by some, but not all, county courts.
In recognition of the magnitude of the problem and its far-reaching consequences, the Bristol appeals were expedited. The judgement of the court was that the statutory scheme of the Housing Act 1985 did not require a court to fix a date for possession when making a suspended possession order. The District Judges were not obliged to use Form N28, which is not prescribed by CPR Part 55. They had fettered their discretion in doing so. The interim solution was a lawful alternative.
The Court of Appeal went on to consider alternative forms of Order. It rejected the draft order advocated by the Appellants. The effect of that order would have been to introduce yet another hearing into the equation, with all the attendant time, delay and costs that would have entailed, not to mention the impact on other court users. The Appellants proposed that once the Order was made, a landlord would be required, on notice to the tenant, seek a further court hearing that actually fixed the date for possession once the tenant defaulted.
The Court of Appeal proposed a “middle ground” to avoid the need for this additional hearing, other than in exceptional circumstances, but which allowed for the tenancy to continue until the Order was breached. An Order could be made suspending the possession order on terms but without, at that stage, fixing a date for possession. The tenancy would continue. If the tenant breached the terms, the landlord should notify the tenant of its intention to write to the court asking it to fix a date for possession. The effect of fixing the date would be to bring the secure tenancy to an end. A hearing would only be ordered in compelling circumstances. The Court of Appeal also suggested the Rules Committee may want to consider the desirability of altering CCR 26 r17 (2) to enable a landlord to make a combined application to fix a date for possession and make an application for a warrant.
However, it is apparent from the judgement that the court can use Form N28 if it wishes to do so. Form N28 is the form to use when the judge wishes to make a suspended order that fixes a date for possession there and then. This might be appropriate for the tenant whose conduct might not warrant an outright order, but is in need of a “wake-up call”.
The judgment, at least for now, resolves the debate of whether a court is required to fix a date for possession when making an order. The fixing of a date is something itself that can be postponed to another occasion. In the Bristol appeals, the Court of Appeal was concerned with the statutory scheme under the Housing Act 1985. It is difficult to see how a different analysis could be applied to assured tenancies under the Housing Act 1988. No doubt it is only a matter of time before the Court is asked to resolve that very question.
The judgment also raises some interesting procedural points regarding the status of the forms listed in Schedule 1 of CPR PD4. N28 is not the only form which appears in CPR Part 4 but is not identified as being required by CPR Part 55. The effect of this judgment is that any form in CPR Part 4 which does not appear as a prescribed form in the relevant part of the CPR does not have to be used by the courts. The Judges therefore have a very wide discretion to depart from the forms identified in CPR Part 4. Time will tell to what extent they will be willing to do so.