Housing Update: Automatic discharge of SPO’s
The Court of Appeal has considered the interpretation of a clause in a suspended possession order that provides for automatic discharge after a prescribed period of time in the case of Armstrong v Ashfield District Council [2018] EWCA Civ 873.
Briefly, the facts were as follows – Armstrong (A) held a secure tenancy and was subject to possession proceedings resulting in a possession order suspended on terms that A complied with the terms of his tenancy agreement. There was a clause providing that the Order would automatically be discharged after 1 year which read “Paragraphs 1-3 inclusive of this order shall be discharged on 3 June 2014”. The allegations of breach of the tenancy terms continued and a warrant was applied for before the year anniversary of the making of the SPO. However, the matter did not come to be tried until after that date.
In the first instance, the trial judge ordered execution of the warrant and A appealed. His argument was that the trial judge lacked jurisdiction as the trial date was after the automatic discharge date. The High Court dismissed his appeal and A appealed to the Court of Appeal.
The Court of Appeal held that the issuing of the warrant request within the period specified in the possession order was part of the process of executing a possession order and accordingly, the SPO had not automatically terminated on the date. The detailed reasons are as follows.
The Court held that the SPO was made by applying the discretion pursuant to s.85 Housing Act 1985: Knowsley Housing Trust v White [2008]:
“In my view, on a fair reading of section 85, it is open to the court to include a proleptic discharge provision in a suspended order for possession. The section should be construed, as far as permissible, to confer as much flexibility as possible on the court, and in such a way as to minimise future uncertainty and need for further applications. The section permits a proleptic discharge provision, in my view, not least because the court can always revisit the provision, effectively at the suit of the landlord, as already mentioned, if the terms of the suspension are not complied with. The wording of section 85(4), particularly if read with the practicalities in mind, does not preclude the court from effectively committing itself in advance to discharging a suspended order, provided that (a) certain conditions are complied with, and (b) neither the landlord (by applying for a warrant of possession) nor the tenant (by applying under section 85(2)) seeks, in the meantime, reconsideration of the terms of the discharge provision.”
Accordingly, the discharge provision in the SPO had to be read as predicated on the tenant complying with the terms of the SPO, and/or the tenant not having applied to discharge or vary the order.
The Court went on to find that even if this was wrong, it was implicit in the court’s directions order listing for trial after the automatic discharge date, that the date in the 4 June 2013 order had been extended. Also, it held that the court had the power under CPR 3.1(2)(a) to extend time, even after the time limit had expired.
The appeal was dismissed.
