The stay on possession proceedings which was imposed originally by CPR PD 51Z and thereafter embodied within CPR 55.29, expired on 20 September 2020.
Since then, claimants have been able to either reactivate their claims if still ongoing and brought prior to 3 August 2020. Other claimants have been gradually receiving dates for hearings. The courts have been prioritising cases involving anti-social behaviour, domestic violence, and rent arrears in excess of 12 months.
The conspicuous exception to this has been mortgage lenders, who are subject to FCA regulation. The FCA’s amended Guidance for mortgage lenders came into force on 16 September 2020 and remains in force until varied or revoked, however, mortgage repossession and enforcement action has been halted since 23 March 2020 until 31st October 2020.
As this key date looms, this round-up of the position will be of interest to practitioners who have recently resumed, or are seeking to imminently resume, possession action in the courts.
HM Courts and Tribunals Service have published a set of forms and guidance notes which are intended to assist the parties to possession claims. The forms include a reactivation notice, which is required by CPR PD 55C for all claims brought prior to 3 August 2020 in which there has been no final possession order made thus far (paragraphs 2.1 and 2.2).
There is a reactivation notice template for both a claimant and a defendant. These are largely similar in content. For possession claims based on arrears of rent, the claimant must produce an updated rent account alongside the reactivation notice – as per CPR PD 55C paragraph 2.4.
It is highly unlikely that there will be particularly widespread use of reactivation notices by defendants. In a cover note to the Defendant, the court’s correspondence begins, “You are receiving this pack because the Claimant has applied to Court to evict you”. This is pre-emptive, in that the suggested cover note is intended to accompany the claim form and response pack, at the time when they are served on the defendant.
Template Notices of Hearing have also been produced, which align with the ‘Overall Arrangements’ published by the Master of the Rolls on 17 September 2020. There are three such templates, being the Notice of Review Hearing, a Notice of Possession Hearing and a Notice of Hearing of an Application to Suspend a Warrant of Possession.
For all possession claims, the first stage at court is a Review (‘R’) hearing. There is a possible exception to this for accelerated s21 Housing Act 1988 possession claims, which may be handled solely on paper, or may proceed directly to a Substantive (‘S’) hearing.
R hearings are to take place, with 5-minute time estimates, on paper with attendance not required from either party. They will be listed towards the end of a court’s sitting day. A template notice can be found here. The Claimant is expected to be available or contactable by the court, should the judge wish to obtain their input. It is expected that the court would make contact with the Claimant’s representative by telephone, if at all. The intention of R hearings is to ascertain whether agreement might be reached between the parties, and to permit the defendant an opportunity to obtain free legal advice.
14 days prior to the R hearing, the Claimant must file and serve its bundle. For all claims which were brought on or after 3 August 2020, the bundle must include the notices required by CPR PD 55C paragraph 6.1. These are a notice confirming (where applicable) compliance with the Pre-Action Protocol for Possession Claims by Social Landlords, and a ‘Coronavirus notice’, namely a notice which sets out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.
For reactivated claims, the Coronavirus notice must be filed alongside – or, if using the template, within – the reactivation notice.
S hearings, a template Notice for which is found here, are expected to be listed for a date at least 28 days following the R hearing, with time estimates of 15 minutes. These are to be attended by both parties in the familiar way for typical possession hearings.
The papers must all be in order and the court will consider adjournments for cases which require longer time estimates, incomplete files due to documentary deficiencies, or where defendants have been unable to obtain legal advice.
For claims brought on or after 3 August 2020 to which the Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property applies, 2 copies of the N123 checklist must be brought to the hearing. 2 copies of the Coronavirus notice must also be produced for all claims brought on or after this date, as well as 2 copies of the notice confirming compliance (where applicable) with the Pre-Action Protocol for Possession Claims by Social Landlords.
It remains to be seen whether particular judicial practices shall become normalised although not codified within the rules. What also remains unknown is the degree to which judges shall scrutinise the claimant’s compliance with the requirements under the CPR. It is unarguable, however, that the route to obtaining a possession order now contains additional procedural requirements, since the outbreak of the Covid-19 pandemic and the adoption of the Overall Arrangements.
In other news, County Court and High Court Bailiffs have received correspondence from the Lord Chancellor regarding the position relating to evictions. The agreement from the bailiffs’ organisations, which is apparently unanimous, is that bailiffs will not conduct any enforcement action in areas which are subject to current ‘High’ (Tier 2) or ‘Very High’ (Tier 3) Covid-19 Local Alert Levels. The legal basis for such a practice remains unclear and it is thought it may be susceptible to a challenge. Further, based on the Lord Chancellor’s correspondence, it is expected that there will be no evictions carried out between 11 December 2020 and 11 January 2021.