Possession Proceedings & Notice periods from 21 September 2020 Marina Sergides & Liz Davies, Garden Court Chambers 16 September 2020 @gardencourtlaw
It’s been a long road… • On 27.3.2020 general stay until 25.6.2020 (brought about by way of Practice Direction 51Z). Stay extended on 5.6.2020 to 23.8.2020 and then again to 20.9.20. • Working Group appointed by Master of the Rolls (as Head of Civil Justice), with cross sector membership. Representative bodies, Judiciary, Court Service and Gov agencies. • Aim: (a) reducing volume in the system by (1) enabling earlier advice and (2) increasing settlement and (b) considering the impact of the pandemic on the parties. • There is an accrued demand on the system from the stay, forthcoming major demand caused by the economic consequences of the pandemic and reduced physical court capacity due to social distancing. Court closures, although not a ‘relevant’ reason expressed, have clearly exacerbated the • problem. @gardencourtlaw
It’s life Jim but not how we know it. The Overall arrangements: • The response is to difficulties identified: Change the notice periods (see Liz D paper) • • Introduce PD 55C (not part of the WG) • Case management and listing changes (The “Overall Arrangements”, part of WG, now published). • Other than PD 55C (in force until 28.3.2021) and r.83A, no other changes to the CPR rules. The overall arrangements that will be discussed are entirely listing matters. @gardencourtlaw
Continue… • There will be no change to primary legislation, so all changes have had to occur within the the limits imposed by law. No indication that Ground 8 or s21 will be suspended. CPR 3 doing a lot of the ‘heavy lifting’. • There has been some increased funding by the MoJ and MHCLG, esp Facilitated Negotiation (to be discussed further below). • Changes to the HPCDS contracts to now provide for Duty Advice (DA) at Court on two occasions: RD and SH. @gardencourtlaw
Stayed Claims: PD 55C and Reactivation Notices • All proceeding are stayed until 20.9.20 (r.55.29). All claims brought before 19.9.2020 are ‘stayed claims’ (para 1.3). • PD 55C in force from 23.8.2020 but relates to a period beginning 20.9.20 and ends on 28.3.2021. It applies to all possession claims including accelerated possession proceedings. • Cases started before 3.8.2020 will not be listed/referred to a Judge unless ‘Reactivation Notice’ (RN) served (para 2.2). That is ‘all’ stayed claims (including appeals). BUT RN needed where: (a) claim brought after 3.8.20 or (b) final possession order has been made (i.e LL at warrant stage). • As writing, a RN has now been published (https://www.gov.uk/government/publications/reactivation-notice-for-property-possession) • (i) that the party filing and serving it wishes the case to be listed, relisted or heard (para 2.3) and; • (ii) what knowledge the serving party has as to the effect of the Coronavirus pandemic on the tenant and their dependants (para 2.3). @gardencourtlaw
Continue… (iii) Unless proceedings relate to an appeal, if claim relates to rent arrears, it must provide an update rent account for previous two years (para 2.4). (iv) Where there were previous directions, party must also file and serve copy of last directions order and new dates for compliance and any new directions or that no new directions are required and hearing date can be met (para 5.1). • If other party does not agree with the proposed directions, they can serve a response within 14 days (para 5.2). To give effect to para 5.2, the Court will/should not approve any directions within 14 days of receiving the RN. • Either party can serve a RN(LL or T) but it must be ‘filed and served’ (para 2.1). @gardencourtlaw
Continue… • Court must give ‘at least’ 21 days notice to parties of “any hearing” in response to RN (para 3.1). • What is “the hearing” that is listed and referred to in the PD? Starting point is that it will be a RD (see para 36, 37 and 38 of OA) • • However, where directions are agreed, this could be ‘hearing’ consistent with the directions (para 38 of OA) @gardencourtlaw
Potential issues • Is an RD always the ‘hearing’ listed after 21 days? • What happens when the parties do not agree directions (para 5 PD 55c)? What is the “hearing” that is listed 21 days after the RN is issued (para 3.1) in these circumstances? Are they to be referred to a RD (paragraph 36 of the OA)? If so, that goes against the purposes of the RD (para 52 OA) which is not to resolve cases. Is it any hearing the parties ask for? (para 2.1 of PD 55C sets out options. The • difficulty with this is: (a) the RN itself does not ask the parties to specify what hearing they want and (b) para 36 to 39 of the OA require the case to be listed at a RN unless directions state otherwise. • Arguably, it isn’t sensible to list is as SH because the parties would have already overcome the obstacles set out in r.55.8 applies. • Perhaps the rules are purposely broad and flexible. @gardencourtlaw
Continue.. Is a RN Served after 23.8.2020 valid? • PD 55C is in force from 23.8.2020 and generally claims issued before 3.8.2020 require RN. The OA seen as of 14.9.20 made it clear that Courts will, by 21 September, issue RNs lodged but not issued because of the stay. The OA as of 15.9.20 did not adopt this wording. In summary, it is understood that a RN served before 20.9.20 cannot be valid as it is a step taken in the proceedings. BUT: Ct will do nothing on it until Monday 21 September when the stay is lifted. • Directions before the stay, Dawn Meats (UK) [2018] EWCA Civ 2212 Authority that a stay applies to all steps in proceedings. During the duration of a stay, no steps in the action, by either side, are required or permitted, and when the stay is lifted or upon its expiry, the position as between the parties should be the same as it was at the moment that it was imposed. When the current stay is lifted, are the parties not back in the position they were the moment the stay was imposed – do the directions not merely start from the point that they were frozen? Or, as PD 55C requires, are the parties to try and agree fresh directions. In practice, this is an issue likely to resolve itself. @gardencourtlaw
What do Landlords have to bring to “a hearing”? • In any claim brought after 3.8.2020 , C to bring to the hearing and 14 days before the hearing (para 6.1.(b)), two copies of notice: (a) confirming complied with PAP (were applicable) and how (para 6.1 (a) (i)); and (b) set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants (para 6.1 (a) (ii)) • These ‘notices’ have not been seen. Without a prescribed checklist form, not clear how this would be provided. It is understood that ‘template documents’ will be out by 18 September 2020. • In any claim brought after 3.8.2020 in respect of Acceleration Possession Proceedings (Section II of Part 55), C must file with the Claim form a notice setting out what knowledge that party and their dependents has been affected by Covid (para 6.2). There is a new N5B Form (since 11.9.2020) but this doesn’t ask for information about covid. Again, it is understood that the new ‘template documents’ will be out by 18 September but what about N5B claims issued before this time (and stayed)?. @gardencourtlaw
Priority listing • ASB • Extreme alleged rent arrears accrued ( (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) • Squatters, illegal occupiers or persons unknown • 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). • Allegations of fraud or deception. • Allegations of unlawful subletting. • 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’. • Other circumstances may warrant priority, and further amplification of this guideline may be published. • Subject to the above, priority will be given to claims issued before the stay in March 2020. @gardencourtlaw
Covid -19 Marked • Court will give a case a ‘Covid - 19’ marking if receives such info: - Covid -19 info required when a RN is served (PD 55C para 2.3) – existing claims. - Covid – 19 info is required in “notice” when a new claim is brought or a claim after 3.8.2020 either - Any tenant (at any stage and by any means) can request that the claim is ‘Covid - 19 marked’. Not entirely clear how this will work in practice or what will prompt a Defendant to provide this information other than the information given to D upon receipt of the RD. • The current Defence forms do not refer to ‘covid - 19’ info from D, neither does PD 55C. • The RN for tenants allows for this information – but not all tenants will want to serve a RN. A tenant may be asked for this info by the DA at the RD but recorded where? • • A tenant may be asked by the Judge at the SH but it will then be too late for Facilitated Negotiation. • D will be told (upon receiving RN) that they can make a short statement about their circumstances if they are unable to draft a defence. @gardencourtlaw
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