Raghav Trivedi provides an outline of practice and procedure in light of the resumption of Part 55 CPR possession cases.
Amidst the latest news of supposed doom and gloom by the government, there has been a significant (and if you are a landlord, a somewhat positive) development: by way of a statement from the Master of the Rolls, Sir Terence Etherton, on 17th September 2020, the stay on Part 55 CPR possession claims (and enforcement proceedings) under PD51Z CPR has now been lifted (as of 20th September 2020).
However, the legal practitioner must bear in mind the different legal, procedural and practical requirements that have now been put in place.
On 17th September 2020, the Master of the Rolls issued a document titled “Possession Proceeding Listing Priorities in the County Court.” This makes clear that the decision of whether or not a case is a priority is a matter for the Judge and that listing is a judicial function. It provides guidance on what types of possession cases would be considered a priority (subject to any update and having regard to the impact on the Claimant and Defendant in the case and also on Claimants and Defendants in other cases), namely:-
- Cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1985;
- Cases with extreme alleged rent arrears accrued, that is, arrears equal to at least (i) 12 months’ rent, or (ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source;
- Cases involving alleged squatters, illegal occupiers or persons unknown;
- Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted);
- Cases with allegations of fraud or deception;
- Cases with allegations of unlawful subletting;
- Cases with allegations of abandonment of the property, non-occupation or death of Defendant;
- Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation;’ and
- Subject to the above, priority would generally be given to claims issued before the stay commenced in March 2020.
The Overall Arrangements
As a useful starting point in understanding the various changes and procedural, legal and practical requirements, the Master of the Rolls Working Group on Possession Proceedings has produced a document titled “Overall Arrangements for Possession Proceedings in England and Wales” dated 17th September 2020.
In essence, the Overall Arrangements are directed to reducing volume (and increasing efficiency) in the Court system by encouraging early advice, compromise and settlement in the first instance; taking account of the effect of the pandemic on the parties; and maintaining confidence in the fairness of outcomes.
Re-Starting Stayed Claims brought before 3rd August 2020: Reactivation Notices
The Overall Arrangements make clear that possession claims brought before 3rd August 2020 will not, unless the Court directs otherwise, be listed, re-listed, heard or referred to a Judge until a party files and serves a “Reactivation Notice” confirming that they wish the case to proceed. This can be done at any time between 21st September 2020 until at least 29th January 2021 (and if provided prior to 21st September 2020 the Courts may deal with it on or after 21st September 2020 unless requested not to do so by the party that provided it).
The legal practitioner is referred to PD55C CPR which fleshes out the requirements for a Reactivation Notice (during the interim period that PD55C CPR is in place, namely 20th September 2020 to 28th March 2021):-
- A stayed claim is defined as one brought on or before 19th September 2020 (including an appeal from a decision in such a claim). In short, the requirement for a Reactivation Notice does not apply to stayed claims brought on or after 3rd August 2020 or in which a final order for possession has been made;
- The Reactivation Notice must confirm that the party filing and serving it wishes the case to be listed, re-listed, heard or referred and (except in proceedings relating to an appeal) must set out what knowledge that party has as to the effect of the pandemic on the Defendant and their dependents;
- If the claim is based on arrears of rent then (outside of proceedings relating to an appeal), the Reactivation Notice must be supported by an updated rent account for the previous two years;
- Where case management directions have been made in a stayed claim as defined above (before 20th September 2020), a party filing and serving a Reactivation Notice must propose new dates for compliance with directions taking account of the stay and a proposed new hearing date, or state in writing that no new directions are required and that an existing hearing date can be met (in addition to filing and serving the last directions order and any draft order setting out additional or alternative directions). This is in addition to a statement in writing confirming whether the case is suitable for a remote hearing (if the above is not complied with by 4pm 29th January 2021, the claim will be automatically stayed but this is not a sanction and therefore an application to lift the stay is not an application for relief from sanctions);
- If the other side does not agree with the proposed approach to case management directions as set out above, they must file and serve a response within 14 days of service of the Reactivation Notice;
- Unless the Court orders otherwise, any trial date set prior to 27th March 2020 (the date on which PD51Z CPR came into force) shall be vacated and the case stayed unless a party complies with the above not less than 42 days prior to the hearing date (this not being a sanction for breach and an application to lift the stay not being an application for relief from sanctions);
- If by 4pm on 29th January 2021, no Reactivation Notice has been filed and served in relation to a stayed claim as defined above, that claim will be automatically stayed (this again not being a sanction for breach and an application to lift the stay not being an application for relief from sanctions); and
- The Court will, unless it directs otherwise, give at least 21 days’ notice to the parties of any hearing listed or re-listed in response to a Reactivation Notice. A link to a template Reactivation Notice with guidance is set out at the bottom of this article.
New Claims, and Stayed Claims brought after 3rd August 2020
Again, reference has to be made to PD55C CPR for new claims, defined as a claim brought after 19th September 2020 and those stayed claims which are brought after 3rd August 2020. In those cases, the Claimant must bring to the hearing two copies of (and serve on the Defendant at least 14 days prior to the hearing) notices confirming (where applicable) that the Pre-Action Protocol for Possession Claims by Social Landlords has been complied with (and how), and (in all cases) setting out what knowledge the Claimant has as to the effect of the pandemic on the Defendant and their dependents. This latter notice is also required to be filed with a claim form in relation to claims under Section II of Part 55 (i.e accelerated possession claims of property let on an assured shorthold tenancy).
Generally, the Overall Arrangements make clear that where a pre-action protocol applies it should be complied with, and compliance will be expected to be shown.
Regulations both in England and Wales provide (extended) notice periods before most new claims may be commenced. The link to the relevant guidance on the appropriate notice period (dependent on the type of tenancy and ground for possession) is set out at the bottom of this article. In most instances, the notice period for private residential landlords under a Section 8 or Section 21 notice served in England from 29th August 2020 to at least 31st March 2021 has now been extended to 6 months. This was previously 3 months for notices served from 26th March 2020 to 28th August 2020.
It is also important for the legal practitioner to be aware of the various forms of guidance of best practice (pre and post issue) developed by a number of organisations and associations, available for the benefit of landlords, tenants, mortgagors and mortgagees. This is set out in the Overall Arrangements at paragraphs 12 to 14, and some of the links to such guidance are provided at the bottom of this article. Particular emphasis has been placed on the importance of attempting compromise and settlement and possession claims are seen as a last resort.
The Overall Arrangements state that the starting point for substantive hearings is for the parties to be offered a physical hearing subject to introducing any contingency arrangements, the existing provisions for accelerated possession claims and where the parties agree to a remote hearing.
The aim for Court centres is to allocate the same number of courtrooms and days per week to possession proceedings as was in place before March 2020 (including any additional premises), with appropriate COVID-19 related measures in place. Judges will work together with an Usher and a member of staff attached to a particular courtroom throughout the day. The aim for the opening months is to use District Judges and Deputy District Judges who sit extensively at a particular Court centre, to assist in dealing with the new arrangements, the difficult pandemic related issues that may arise in the cases and to promote consistency and shared judicial knowledge.
There will be in place a dedicated possessions email address at each Court centre to facilitate information and document flow. Parties and legal representatives can also appear by video link if facilities allow (if one or the other is at the Court centre).
Generally speaking the Court will not fix a date when it issues the claim form, the standard period of 8 weeks between issue and the hearing date will not apply and there will no longer be a block list.
The Claimant and the Defendant can request for their case to be COVID-19 case marked at any stage of the proceedings and by any means. However specified information will have to be given to the Courts (set out at footnotes 1 and 2 in the Overall Arrangements, see link at the bottom of this article). In essence this information relates to the hardship faced by the Claimant and the Defendant as a result of COVID-19 as having an impact on the case at hand. This approach of case marking serves the purpose of highlighting settlement suitability, assisting those Claimants who have agreed as a matter of policy to give special consideration to those cases affected by COVID-19, drawing attention to difficulties experienced by the Claimant and assisting the Courts with listing, case management and the exercise of discretion at a hearing.
The party making a request for marking must inform the other parties and unless an objection is raised, once a Court is informed of the same, a case will be COVID-19 marked accordingly. Objections will be dealt with on the papers by the Court to decide if the case should be marked when the file is next before a Judge. Indeed a Judge can, on the request of a party, direct at any stage that the case is to be COVID-19 case marked.
Thereafter, the Overall Arrangements envisage the following procedure to take place:-
- A Review Date:-
- On this date, the Defendant will be in a position to receive free legal advice under the duty scheme arrangements (flexibly – face to face, video or by phone), and the Claimant will be required to file and serve an electronic and paper bundle of the relevant documents for the case at least 14 days prior, and be available to discuss the case with the Defendant and duty advisor (by telephone if necessary);
- The aim is to assist the parties to resolve the dispute and if resolution is reached or directions agreed, any agreed order can be passed to the Judge via the Usher or Court staff who will consider the same (without attendance of the parties); and
- The Review Date appointment will be conducted by the Judge on the documents without attendance of the parties (for around 5 minutes). If not resolved by agreement and the papers are in order, the case will proceed to the Substantive Hearing Date. If the documents are not in order, the Court may dismiss the claim or set forth directions (with liberty to apply for reconsideration at an oral hearing).
- A Substantive Hearing Date:
- Fixed on the Review Date generally (some Courts may advise of the Substantive Hearing Date on the same communication as the Review Date);
- The Substantive Hearing Date should be 28 days after the Review Date, and will have a 15 minute time estimate. Parties must attend;
- The Court may decide the claim, issue further directions or list for a fuller substantive hearing with an individual time estimate based on the complexity of the matter;
- If it seems that the Defendant has not received advice and the consequences of any order are serious in the context of the pandemic, the Court will consider an adjournment;
- The Defendant will be in a position (if required) to receive free legal advice under the duty scheme arrangements on this date (flexibly – face to face, video or by phone); and
- In relation to accelerated possession claims (given that these are usually dealt with on the papers), the Judge will consider if a Review Date or a Substantive Hearing Date is required.
It is important that legal practitioners take the time to familiarise themselves with the new legal landscape for possession claims going forwards. The Overall Arrangements warn of a Judge’s ability to dismiss the case on the Review Date if the papers are not in order (which could be a procedural error). However, whilst it seems that the impact of COVID-19 will be at the forefront of the Court’s mind from the outset, this may not be the case at the end of the process. The Overall Arrangements state that one must bear in mind that the Court’s discretion is limited by statute and that there may be cases where the Court may have little or no discretion to take into account the effects of the pandemic on a Defendant. Therefore, this all may be a positive development for a landlord, but still a worrisome time for a vulnerable tenant.
https://www.judiciary.uk/announcements/resumption-of-possession-cases/ (Master of the Rolls’ Statement)
https://www.judiciary.uk/wp-content/uploads/2020/09/Possession-Proceedings-Overall-Arrangements-Version-1.0-17.09.20.pdf (The Overall Arrangements including COVID-19 case marking required information at footnotes 1 and 2)
https://www.gov.uk/government/publications/reactivation-notice-for-property-possession (Reactivation Notice Templates, Guidance Notes and Other Notices)
https://www.gov.uk/government/publications/understanding-the-possession-action-process-guidance-for-landlords-and-tenants (Guidance for Private and Social Landlord and Tenants including Relevant Notice Periods)
https://www.fca.org.uk/publication/finalised-guidance/mortgages-coronavirus-additional-guidance-for-firms.pdf (Guidance for Mortgagors and Mortgagees)