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Possession Claims – The New Normal?

Today, 21st September 2020, was supposed to be the big day for landlords and tenants.  The various stays that have been applied to possession proceedings since March, in the light of the Covid-19 pandemic, formally come to an end.

However and predictably, this has not meant an immediate resumption of block lists and crowded waiting rooms, enhanced by the backlog and exacerbated by the inability of so many to meet rental or mortgage repayment commitments in the current circumstances.

On 17th September 2020, Sir Terence Etherton (Master of the Rolls) issued a statement in which he said “The challenges faced by the courts as a result of the COVID-19 pandemic are well known. Possession cases are also likely to have an effect on litigants which will engage with the wider consequences of the COVID-19 pandemic on individuals, families and businesses”.

He attached two documents – Guidance Notes on Priority for judges, and a description of the new ‘Overall Arrangements’ – to reflect the outcomes of the working group he had set up.

Judges are ultimately responsible for their lists, and have been guided as to which cases should be treated as a priority.  These include anti-social behaviour cases, extreme rent arrears (12 months’ rent, or 9 months when a private landlord significantly depends on the income), and cases involving squatters, domestic violence, fraud, illegal subletting and abandonment.  Where property has been provided as temporary accommodation by a local authority and is said to require reallocation, this may also be treated as a priority.

Repeatedly in the Overall Arrangements, parties are urged to seek to resolve the position consensually, which they would be obliged to consider anyway under familiar principles.

Since CPR55C came into force, any stayed cases issued before 3rd August can only be restarted by either party filing a ‘Reactivation Notice’ for which a prescribed form was recently provided.  The Overall Arrangements state that “If a Reactivation Notice has been provided to the Court by a party before 21 September 2020 the Courts can be expected to put it to one side and not deal with it before 21 September 2020; then, on or after 21 September 2020 (as resources allow) the Court will process the filing of it unless requested not to do so by the party who provided it”.  The Court, then, is in no hurry.  No case will be listed until at least 21 days after the Court received a Reactivation Notice.  Accelerated claims which have been stayed also require a Notice.

Where a Reactivation Notice has been filed, the Court is required to ‘mark’ any case that is said to arise as a consequence of the virus.  Any Defendant or private landlord Claimant can ask that a file be marked provided that they give certain prescribed information and the other side has the chance to object.  The marking of a case will affect its perceived priority.

Parties will be offered a conventional ‘physical’ hearing, unless ‘contingency arrangements’ apply or the claims engage the accelerated scheme that would not necessarily give rise to a hearing in any event.

Only Courts which can exercise social distancing measures – keeping participants and staff a suitable distance apart – can be used.  Local health authorities will be consulted and enhanced cleaning procedures will be operated.

Parties can agree that a hearing should take place by phone or video.  Intriguingly, if a party or his/her representative is at Court, a representative may then appear to represent him by video, and a party may appear by video or phone, where facilities permit.

Any Defendants struggling with the Defence Form need only provide a short statement setting out their circumstances and why they say an order should not be made.

Unlike before, the Court will not fix a date as soon as the claim issued, and the former typical eight weeks before listing is no longer relevant.  There are no ‘block lists’.

The guidance states that “Cases (stayed and new) will ordinarily proceed with a Review and then (where necessary) a Substantive Hearing”.  The Court, then, will list first an unattended review date and then a substantive hearing date, fixed at the review, and it is likely that the Court will list hearings three months before they take place.  Further delays, then, will inevitably continue to accrue.  The first reviews, of the most urgent cases, will not take place before 19th October, and the first substantive hearings 16th November.

One of the concerns behind this guidance was undoubtedly that simply resuming hearings, or listing the majority of cases remotely, would compromise the availability of the duty advice scheme whereby Defendants are provided free advice and representation.  Provision is made to ensure that free advice will continue to be available both in advance of the first hearing and, as now, at the substantive hearing itself.  The Legal Aid Agency is required to make sure that there are no gaps, nationally, in this scheme.

Guidance is also provided in relation to evictions, with no really significant changes.  However evictees must be given at least 14 days with a clear indication of their right to apply for a suspension.  County Courts will be reluctant to transfer to the High Court for enforcement.  Where local lockdowns are in place, no eviction can take place and none (except the most serious) will take place over the Christmas period.

The Overall Arrangements provide an example listing timetable, again mindful of the fact that there will be no block lists.  Assuming no more than three cases an hour and standard sitting times, the Court would expect to hear ten substantive hearings in a day, and then consider as many reviews administratively.


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