As many of you will of course be aware, Sunday 20 September 2020 marked the much anticipated end of the suspension on possession actions following the COVID-19 pandemic, and the start of the new Practice Direction 55C that we reported on back in August (note the commencement of PD55C was extended from 23 August to 20 September 2020). So from today, possession claims can be re-activated in line with the provisions in PD55C, set out in our previous Legal Update from this month.

Since the new PD55C was announced back in August, there has been further guidance published by HMCTS via here and on gov.uk via here, which explains what will happen next, once claims are re-activated, as set out below.

New form of re-activation notice

In addition, HMCTS have published a form of re-activation notice for pre-03 August 2020 claims that need to be re-activated. Note that, whilst this is not a prescribed form of notice so a letter will equally suffice, we would very much encourage you to use this form of notice to avoid any arguments with Court staff over whether what you have served was sufficient to get your claim(s) re-activated.

There is a form of re-activation notice for Claimant parties here. This includes a ‘tick-box’ list of cases that should be given priority. This includes cases of ‘serious rent arears’ which is said to be cases where there is at least 12 months’ rent arrears or (in the case of private landlords) 9 months’ rent arrears if that is at least 25% of the landlord’s income.

There is a further separate form of re-activation notice for Defendant parties found here.

What happens next will depend on whether the possession claim is an accelerated claim (e.g. a claim dealt with on the papers based on a Section 21 notice, with no claim for rent arrears) or a standard claim (e.g. for Section 21 notices where there is a claim for rent arrears, or any other claim for possession where there will need to be a hearing).

‘COVID marked’ cases

Some cases may be ‘COVID-marked’, where either the tenant or landlord has suffered particular hardship as a result of COVID-19. It is expected that these cases will be treated more sensitively (in the case of tenant hardship) or prioritised (in the case of landlord hardship), but watch this space.

Accelerated claims

In theory, there should be no change to the procedure for accelerated claims. Once the claim has been re-activated, the claim should continue from the point that it should have done had it not been stayed. So for example, if the claim had been stayed after it had been issued and the time for the tenant’s defence to be filed has passed, the landlord should be able to request the possession order and the request considered on the papers in the usual way. We are not expecting any changes to the usual procedure for accelerated claims, except for anticipated delays whilst the Court staff deal with the backlog of claims since March 2020.

Standard claims

There is a new process for standard claims. The Court will now fix an initial ‘review date’. This is a date set by the Court, said to be “an important new opportunity for the defendant to obtain free of charge duty scheme advice, and for the claimant and the defendant to reach agreement”; the emphasis being on the parties to try and resolve the possession claim without the need for it to continue further. In reality, it is hard to see how many cases will compromise, particularly rent arrears cases unless the tenant agrees to leave or is able to pay all or a substantial amount of the arrears due.

The landlord will be required to file an electronic bundle for the ‘review’ at least 14 days beforehand. The review is intended to be a short 5 minute appointment with no physical attendance required by either party. The parties (or their advisors) are, however, required to be available to discuss the case and are to notify the Court if they are able to reach a settlement. If they are not, the Judge will consider the papers and, if all is in order, list the claim for the substantive possession hearing 28 days later. If the Judge is not happy with the papers, the claim will either be listed for directions or dismissed on the papers without a substantive hearing.

All parties must attend the substantive hearing in the usual way. This will now be a 15 minute hearing, as opposed to the old ‘block listings’ of possession hearings given a 5 minute allocation within that list. The Judge will decide the claim at the substantive hearing, or list the claim for a directions hearing if the claim is defended or there are any issues with the claim identified at that hearing.

What else to expect?

In short, delays, delays, delays.

Although HMCTS have said that they have set aside 200 additional Deputy District Judges (and Property Tribunal Judges, who can also sit as District Judges) to get through the backlog of possession claims, the new procedure and sheer backlog of cases to be processed by the Courts is undoubtedly going to result in significant delays to possession claims being processed and orders being made.

The new review process will, sadly, create more opportunities for challenge, particularly in view of the even greater expectation on the parties to try and reach settlement. The guidance published also indicates that adjournments will be more readily available where (a) there is no indications that advice has yet been made available to the tenant and (b) the consequences of the possession order may be serious in the context of the pandemic. That could be said to apply to any possession claim, given the lack of availability of legal aid funding and duty advice available, although a new free legal advice scheme is said to be rolled out with these new changes, so that may well change. Further lockdowns (either local or national) will inevitably cause further delays and uncertainties.

Landlords intending to by-pass the expected delays with the County Court bailiffs should note the comments in the latest guidance that such applications “may not be able to be treated as of high priority” in light of current challenges. This means that enforcement of possession orders through the High Court is not necessarily going to be much (or even any) quicker than waiting for the bailiff appointment, in cases where permission to enforce through the High Court is required and granted.

Disclaimer

This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

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