The Court of Appeal has handed down judgment in Cardiff v Lee [2016] EWCA Civ 1034. The case concerns the claiming of possession by a local authority landlord, but the reasoning could also be applied to possession by mortgagees. The landlord failed to apply to the court for permission before seeking  a warrant for possession, as required by CPR r83.2. The tenant submitted that the mandatory language of r.83.2 meant that the court was unable to waive its requirements and exercise its power to cure procedural defects under CPR r3.10. The Court of Appeal dismissed this contention and held that the court was empowered under CPR r3.10 to dispense with the need for a prior permission application and proceed to validate the warrant where the circumstances justified that course. The principle that r.3.10 could not be used to override unambiguous and restrictive conditions of the CPR had to be considered in the light of the facts of the instant case. Rule 3.10 expressly stated that an error of procedure did not invalidate any step in the proceedings unless the court so ordered; that meant that the warrant was voidable and not void. In the present circumstances, the parties would have ended up in the same place even if the local authority had adopted the correct procedure, and extra cost and delay would arise if the court was unable to remedy the matter by using its power under r 3.10.

This case may be of interest to mortgagees with suspended possession orders who use form N325 without obtaining permission under r83.2.