What happens when possession proceedings recommence?

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No this is not déjà vu – this is an article in anticipation of the stay on possession proceedings coming to an end.

The stay was introduced in March and extended in June; it had been due to expire at the end of August but was further extended at the last minute. Subject to any more last minute changes or extensions, the stay will expire on 20 September 2020.

The Government had announced it would have a plan in place ready for the stay ending but this time last month, there were very few details known.

This time around, we do have more information as the Master of the Rolls has released The Overall Arrangements – a document setting out the rules, guidance, and information on how possession proceedings will be dealt with in the upcoming months.

This complements the new Practice Direction 55C (see our previous article).

Enhanced Information

Whether your case is a new one or an existing matter which had been stayed, the landlord will need to confirm to the court what knowledge it has about the impact of coronavirus on the tenant and their dependants.

Reactivation Notice

As we already knew, cases which started before 3 August 2020 will not automatically restart. If you want your existing matter to be listed, relisted or referred to a judge, then you will need to serve a Reactivation Notice.

A template notice is available on GOV.UK. If directions had already been given in your claim, then your Reactivation Notice will need to be accompanied by proposed directions. The matter will not be listed for a hearing for at least 21 days.

New Claims

The guidance stresses the need for compromise and to that extent, the court will likely focus on compliance with any pre-action protocol.

In certain circumstances, the court will have very limited discretion to not make a possession order but the guidance suggests that where the tenant has not had the advice they are entitled to, or where a possession order would cause serious consequences in context of the coronavirus, the court will look to adjourn matters.

The previous standard period of eight weeks between issue and hearing date will no longer apply and the court will not be setting a hearing date at the time of issue, as it has done previously.

Covid-19 Case Marking

A file can be marked to highlight that it is a direct consequence of coronavirus. This is designed to highlight which cases are more suitable for settlement, and to assist with listing and the exercise of any discretion.

It can also bring to the court’s attention, cases where the landlord or tenant may be in particular difficulty as a result of the pandemic. Specific information will need to be provided in order for a case to be COVID-19 marked but the judge will have discretion to mark a case of their own volition.

Review Date

Once a new claim has been issued or an existing claim has been reactivated, the court will proceed with a review and set a Review Date.

A revised duty scheme is available to Tenants and will not be means tested. The Review Date will serve as a marker in the possession process, whereby the Tenant can obtain advice and assistance.

The court will send a Notice of Listing with the Review Date on; this must set out certain information for the Tenant including advice on how to access the duty scheme.

14 days before the Review Date, the landlord will need to file an electronic bundle, provide a copy of the bundle to the tenant, confirm that the bundle contains all required documents including any enhanced information, and confirm that the landlord is available during the Review Date to discuss the case with the tenant or the duty scheme adviser.

At the end of the day on the Review Date, the court will then look to make any orders as necessary. This could be approving a resolution to the case that the parties have agreed, or making directions for the claim to proceed. The judge will do this on the papers and in the absence of the parties.

Substantive Hearing

This will be the next hearing in the process and must be at least 28 days’ after the Review Date. All parties must attend this hearing and will be offered a physical hearing which will last 15 minutes.

If the parties cannot resolve the case then the court will decide the claim or give further directions for a fuller and more substantive hearing (for example, where there are complex issues or the matter is contested).

Hearings will not be listed in a block list as has been done previously but rather spaced apart to allow for adherence to distancing measures. The court will be listing up to 3 months ahead and caseloads will be made up of a mixture of new cases and reactivated cases.

Priority will be given to those cases which are most urgent including: those involving anti-social behaviour or domestic violence; extreme rent arrears (12 months’ rent or 9 months’ rent where this equates to more than 25% of a landlord’s income); trespassers etc.

Accelerated proceedings

Where a section 21 has been served, a landlord can issue possession proceedings using the accelerated procedure which removes the need for a hearing and allows the court to make a possession order based on the papers alone.

The need for a Reactivation Notice and enhanced information will apply to accelerated proceedings. However, the court may, of its own volition, order a Review Date to allow the defendant the opportunity to access independent and free legal advice, and may list the matter for a substantive hearing if it feels that this is necessary.

Otherwise it is anticipated that paper applications will be dealt with if cases come out of the substantive list at the last minute.

Evictions

14 days notice of evictions will be required in both the County Court and High Court.  The safety of defendants, occupiers and bailiffs will be carefully considered before evictions are carried out and the Ministry of Housing has announced that it will issue guidance to say that no enforcement of possession orders will take place where local lockdown measures are in place and (other than in the most serious cases) over the Christmas period.

Other general points

  • Only court centres which can facilitate distancing measures will be used so your local court may not be the court which deals with your matter.
  • It is intended that there will be a dedicated possessions email address for each court centre.
  • Where there is a physical hearing, a party or their legal representative can attend by video link (where facilities are in place) provided one of them is at the hearing.
  • Guidance is to be published by the Court Service and the National Residents Landlord Association and it may be prudent for landlords to have regard to the same before commencing or continuing on with possession proceedings.

What this means in practice

The new Practice Direction and Overall Arrangement in effect, introduce a whole new way of dealing with possession claims.  The effectiveness of the new regime, including the percentage of cases which can be resolved at the Review Date, and the number of cases which are referred to mediation, and which of those are successfully resolved at that point will no doubt be monitored.

Parties will need to make sure that they are careful to comply fully with the new requirements, and be prepared for delays in cases being dealt with, as a result of the new procedures, the reduced capacity of the courts (there will be no more block listing) and the backlog of cases that the courts have got to get through.

For more information and advice, contact Sarah Barratt on 0191 211 7923 or email
[email protected]