Challenge to eviction process – automatic discharge of a suspended possession order?
Armstrong v Ashfield District Council  EWCA Civ 873 has provided clarity on whether the clock automatically stops on the discharge of a suspended possession order (SPO) when a landlord has already applied for a warrant for a breach of its terms.
The tenant, David Armstrong was the secure tenant of Ashfield District Council (Ashfield).In June 2013, following a trial, a SPO was made. It could not be enforced so long as Mr Armstrong complied with certain terms of his tenancy agreement. Furthermore, it could only be enforced by Ashfield making an application in writing, with any hearing being reserved to the trial judge (if available). The Order was to be discharged on 4 June 2014.
Following further breaches of the tenancy, in October 2013, Ashfield applied to the County Court for a warrant which was issued in accordance with usual court procedure, as an administrative act by the court. The application for the warrant was not made to, or considered by, any judge, as required by the SPO.
An application was made to suspend the warrant. After some months of delay the case came before a Circuit Judge on 25 June 2014 who dismissed Mr Armstrong's objection that Ashfield could not rely on the warrant as it had followed the incorrect procedure. His reasoning was that the judicial scrutiny required by the SPO was being achieved by virtue of the hearing before him.
The judge found the allegations of breach were proved and dismissed Mr Armstrong’s application. Mr Armstrong appealed to the High Court and he argued that at the time the Circuit Judge ordered execution of the warrant, due to the lapse of time, there was no longer an extant Order in place. The High Court dismissed the appeal and the Court of Appeal dismissed a second appeal.
It was held that the provision for automatic discharge did not apply as Mr Armstrong had breached the conditions on which the order had been suspended during the lifetime of the SPO. Ashfield had made a valid application to enforce within that time period. The procedural argument was also dismissed as the Circuit Judge "was plainly entitled to adopt the approach he did" and was entitled to treat as immaterial the failure to follow the prescribed procedure.
It is reassuring to note that courts will not take issue with procedural breaches of orders and that a sensible approach will be taken in relation to SPOs where an application for a warrant was made before the order expired.