With Possession Claims having been stayed for many months and that stay having ended on 20 September 2020, the courts will now face an unprecedented backlog but there are many questions regarding how these claims will be dealt with procedurally. Rebecca Keeves analyses “The Overall Arrangements” document produced by the Master of the Rolls (as Head of Civil Justice) Working Group on Possession Proceedings and provides a succinct and easy to use guide to the current procedure.
This article will address the following sub-topics:
- Cases already commenced.
- New cases.
- Additional requirements for the Claimant.
- The Review Date.
- The Substantive Hearing.
- Accelerated possession claims.
- Advice for defendants.
- Mortgage cases.
The strategy set out in The Overall Arrangements document (“the document”) is aimed at reducing the volume of claims by enabling earlier advice and increasing settlement, taking account of the effect of the pandemic on all parties, and maintaining confidence in the fairness of outcomes.
CASES ALREADY STAYED
Parties are warned against restarting proceedings without first making efforts to settle the matter.
- Claims brought before 03 August 2020
The court will not take any action on claims issued before 03 August 2020. A party MUST file a “Reactivation Notice” confirming that it is intended for the case to proceed. Such notices can be filed at the court between 21 September 2020 and 29 January 2021. Links for the forms as a claimant and as a defendant are available at the end of this article. If the Reactivation Notice was filed before 21 September 2020 it will still be dealt with but not until that date.
If case management directions were made before 21 September 2020, new dates must be proposed for directions and a hearing date must be proposed with the Reactivation Notice. Although the document refers to “proposed hearing date”, as opposed to dates, it is more likely to be appropriate to provide a “first open date after” or a window.
If no new directions are required, then that must be stated.
The form is very clear about how and where to detail each of these matters.
- Claims brought after 03 August 2020
Oddly, the document doesn’t specifically refer to these claims. From an overall reading it is presumed that the absence of specific provisions means they will be listed for the review date without the need for a Reactivation Notice.
- Possession claims already obtained – evictions
Notice of eviction of at least 14 days is required for both County Court and High Court matters. A new form now provides for clear information to the defendant on the date of the proposed eviction and the right to apply to the court for suspension or postponement, and available routes to advice.
Parties are encouraged to recognise that applications to transfer to the High Court may not be treated as high priority.
The safety of all involved will be considered by the HCEOs and bailiffs in each specific case. The Ministry of Justice has issued guidance to the effect that no enforcement of possession orders will take place where there are local lockdown measures in place and, other than in the most serious cases, over the Christmas period (which unhelpfully is not defined but is largely the informal stance previously taken in any event).
Parties are urged to make significant efforts to reach an agreement and, of course, remember that the notice period is currently extended to 6 months in almost all cases. The document reminds parties of the application of the pre-action protocol.
ADDITIONAL REQUIREMENTS FOR THE CLAIMANT
The claimant must set out what is known about the effect of the pandemic on the defendant and any dependents. This is in all cases, including those being reactivated, new claims, and accelerated claims. It is also likely that a new rent statement will be required for a period of 2 years.
The court will be marking cases that appear to be as a direct consequence of Covid-19: marking may highlight settlement suitability; marking by the defendant will be available to claimants who have agreed as a matter of policy to give special consideration to such cases; marking by the claimant will draw attention to the fact the claimant may be in difficulties as a result of the pandemic; and marking will be available to the court to assist with listing, case management and exercising discretion, marking will assist in monitoring.
Private claimants or defendants are entitled to request the case be so marked. Notice must be given to the other parties of such a request and specific information will be required. The file will be so marked unless there is an objection. If there is an objection a judge will decide.
A guideline prioritisation list has been produced in the below order for cases involving:
- Anti-social behaviour.
- Extreme rent arrears (equal to 12 months’ rent, or 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income).
- Squatters, unlawful occupants, persons unknown.
- Domestic violence where possession is alleged to be important for particular reasons as set out in the claim form.
- Unlawful subletting.
- Abandonment of the property, non-occupation or death of defendant.
- Accommodation previously allocated as temporary accommodation by an authority and where that property is specifically needed for reallocation.
This list is being kept under review. Subject to the above, priority will be given to claims issued pre-March 2020.
The court will not fix a date when the claim form is issued and the former standard of listing within 8 weeks does not apply. There will be no block lists. The court will give at least 21 days’ notice in respect of cases that were stayed.
All cases will usually begin with a Review Date and then a Substantive Hearing (except accelerated – see below). The substantive Hearing should be 28 days after the review date. The Substantive Hearing date will either be stated at the review hearing or will be notified in the notice of the Review Date.
The orders will be different and care should be taken to ensure they are read carefully.
The aim is to have the court centres allocate the same number of court rooms and days per week as pre-March 2020. There may be additional locations arranged. However, only those centres able to conduct hearings in a socially distanced way will be used.
Every courtroom dealing with possession matters will have a member of staff attached to it throughout the day.
It is intended that each centre will have a designated possessions email address. No reference is made to where and when these will be available but presumably they will be on each centre’s .gov page in the usual way.
Where the client is at court, it is acceptable to have the legal representative appear via video link, where the facilities are available; if the legal representative is at court the client may attend in person or via video link or by telephone. As an aside, it may be wise to avoid requiring video link as additional facilities being required may result to a further delay in your matter being listed.
The preference will be for the matters to be dealt with by full-time District Judges of Deputy District Judges who sit extensively at that centre in order to deal efficiently with the new arrangements, the potential pandemic-related issues, and to promote consistency and shared judicial knowledge.
THE REVIEW DATE
14 days before the review hearing, the claimant MUST:
- File an electronic bundle (paper bundle apparently allowed as an alternative but it will likely be frowned upon);
- Confirm to the Court that a paper bundle has been provided to the defendant, with an electronic copy in addition if the defendant has the facilities to receive the same;
- Confirm to the Court that the bundle includes all required material, specifically the enhanced information about the defendant;
- Confirm to the Court that the claimant will be available during the review hearing to discuss the case.
Advice will be available to defendants through the duty scheme and it will be hoped that an agreement can be reached.
The hearing part will be at the end of the sitting day so that in the event an agreement is reached as to the conclusion of the case or directions the Court will be available to make the order. This is without the attendance of the parties. The hearing will last 5 minutes and there will be no hearing fee.
If no agreement is reached, the Judge will consider the bundle and the file. If the documents are in order the matter will proceed to a substantive hearing.
Importantly, if the Judge considers the documents are not in order, the expectation is that the claim will be dismissed, with liberty to apply for reconsideration at an oral hearing, but the Judge may make directions.
THE SUBSTANTIVE HEARING
Physical hearings will be offered for the Substantive Hearing, subject to three exceptions:
- If contingency arrangements need to be introduced.
- The existing provisions for Accelerated Possession Claims.
- Where the parties agree, and the court approves, a hearing to be via telephone or video link.
All parties must attend. The hearing will be listed for 15 minutes and time will be allocated to the changeover between cases.
In the absence of an agreement, the Court will decide the matter or give further directions.
The Court will likely consider the need for an adjournment, regardless of an application having been made, where there is no sign that advice has been made available to the defence and the consequences of the order may be serious in the context of the pandemic.
ACCELERATED POSSESSION CLAIMS
These can still be dealt with on paper but accelerated claims are subject to the following:
- If issued before 03 August 2020 a reactivation notice is required.
- The priority list (above).
- Each court centre will refer these claims to a judge at a manageable frequency.
- Judges will use the time freed up where substantive hearing slots are vacated to deal with these claims.
- Where the parties agree or there is no objection, the Judge may direct that a review date be listed to enable the defendant to receive advice.
- The Court may list for a substantive hearing which will be subject to the provisions above.
ADVICE FOR DEFENDANTS
Free advice will be available to all through the revised duty scheme arrangements at two points in time:
- Early advice. This will be available 28 days before ethe first substantive hearing, on what will be known as the Review Date;
- Advice at the first Substantive Hearing.
All relevant schemes have been adjusted to enable flexibility.
These are subject to regulatory or voluntary schemes, and most claims are postponed to 30 October 2020. The FCA has published further guidance and Rebecca can be contacted if advice is required.