When exercising discretion to suspend warrant, judge can take account of nuisance despite fact that possession order made on basis of rent arrears
In proceedings against a secure tenant based on rent arrears, the landlord obtained a suspended possession order. Later a warrant for possession was issued. The tenant applied to suspend the warrant (Housing Act 1985 s85). At the hearing of the application, the landlord sought to adduce evidence of nuisance caused by the tenant. The parties agreed that the issue of whether such evidence could be admitted should be heard as a preliminary point. District Judge Oldham ruled that matters other than rent could not be raised on the application to suspend the warrant for possession. HHJ Bartfield upheld that ruling on appeal.
The landlord appealed successfully. The court, exercising its discretion under section 85, can take into account matters other than those relied on as grounds for making the original possession order – although it is not always right to do so. Whilst not attempting to fetter the discretion of district judges, the Court of Appeal stated that the following points are relevant.
1)The discretion should be used so as to further the policy of Housing Act 1985 Part IV, reinforced by Article 8 ECHR. The policy is only to evict after a serious breach of an obligation, where it is reasonable to do so and where the tenant is proved to have breached any condition of suspension.
2)The overriding objective of the Civil Procedure Rules, especially the need for applications to be dealt with in a summary and proportionate way, means that wider issues may not be able to be dealt with on an application to suspend or vary. They may need to be dealt with in some other way.
3)The tenant should have clear evidence of what is alleged, especially where the allegations were not contained in the original claim.
4)The fact that the landlord had or had not included the allegations as part of the original proceedings is relevant.
5)The discretion to consider other allegations should generally be exercised more readily in respect of matters occurring after commencement of the proceedings.
6)The court should also consider the practicalities of dealing with matters on the execution of a warrant.
7)The fact that the tenant is at the mercy of the court and the responsibilities of a public landlord to its other tenants.
The list is not exhaustive. District judges have to exercise the discretion bearing in mind the importance of the issue to the tenant, at risk of losing his home, and the responsibilities of social landlords to their other tenants. The case was remitted to the county court for reconsideration of the application to suspend the warrant.