Tough times ahead: Recommencing possessions Part I

As of 21^st September 2020, the courts can begin hearing possession cases following the lifting of the stay introduced to prevent evictions in the height of the Covid-19 pandemic. This article summarises the new arrangements for proceedings, in particular, reactivation notices, Covid-19 marking of files, prioritisation, listing and arrangements for hearings.

We will be providing a separate article covering in detail the new two-part hearing system: Review Hearings and Substantive Hearings, and electronic bundle requirements.

The Master of the Rolls has released a document explaining the arrangements for recommencing proceedings following the introduction of Practice Direction 55C (‘PD55C’) (see Katrina Mather’s article on this) and the lifting of the Covid-19 possession claim stay (The Overall Arrangements document (‘the OAs’)). The OAs identified the challenges facing the court system and users. The combination of a backlog of cases, likely increased demand for possession orders (as more people struggle to afford their rent) and reduced physical court capacity (due to social distancing), will place unprecedented pressure on a system that was already under significant strain. The aim of the OAs was to help that by (a) reducing demand by facilitating settlement (b) ensuring consideration is given to the effects of the pandemic on all parties and (c) maintaining confidence in fairness. Below we discuss the most important parts of the OAs.

Reactivation Notices

In August 2020, the concept of a reactivation notice was introduced by PD55C. Possession claims brought before 3 August 2020 will not be listed, re-listed or referred to a Judge until a party files and serves a reactivation notice confirming that they wish the case to proceed. Although, if a possession order or warrant for possession was obtained before 27 March 2020, a reactivation notice is not required. Our colleague, Morayo Fagborun Bennett has, with Laura Tweedy produced a detailed note on reactivation notices. A copy of this note is here.

PD55C set out what needed to be in the notice, such as a rent schedule for the last 2 years to be enclosed for rent arrears cases and any pre-existing case management directions to be appended. However, it provided no information as to form, apart from notice needing to be in writing. HMCTS have, very recently and helpfully, published a standard form reactivation notice. While it is not compulsory to use the standard form, it seems there is little to be gained from re-inventing the wheel. The form is available here.

Covid-19 ‘marking’

With the introduction of a new Covid-19 case-marking scheme, parties may request that the court file in their matter, note that their case is a direct or indirect the result of Covid-19. This marking system is intended to assist the court with listing and “monitoring”. It will also, potentially, provide an imperative on the parties to settle, the implication being that if the case is Covid-19 marked it may be harder to obtain possession through the court.

Where a Defendant wishes for the file to be marked in this way, they must set out:

Brief details of the hardship they face;
Whether there were any significant arrears outstanding pre-March 2020;
Whether they have been on furlough or been offered or paid a related proportion of rent or borrowing arrears;
Whether they have been in receipt of Universal Credit since March 2020 and whether they have been offered or paid a related proportion of rent or borrowing arrears;
Whether they have been unable to earn because of Covid-19;
Whether they have been shielding; and
Any proposals to pay the any arrears.

If the Claimant wishes for the file to be marked they must state:

The particular hardship they face; and
Whether they have received any Covid-19 related financial assistance.

The request can be made at any stage but must provide the details specified above and all parties must be informed. If there is an objection to the marking, a Judge will decide the matter on the papers.

Prioritisation

Following the introduction of PD55C and the issue of listing and re-listing possession claims, many clients have asked whether or not there will be any prioritisation of particular categories of case. The OAs has provided the answer. All of the following cases (in no particular order) will be considered a priority:

Cases with allegations of anti-social behaviour, including Ground 7A in Schedule 2 to the HA 1988 and s. 84A to the HA 1985.
Cases with extreme rent arrears equal to at least:
- 12 months’ rent; or
- 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source.
Cases involving squatters, illegal occupiers or persons unknown.
Where domestic violence means possession of the property is important.
Cases involving allegations of fraud or deception.
Cases with allegations of unlawful subletting.
Cases with allegations of abandonment of the property, non-occupation or death of the Defendant.
Cases concerning property that was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.

The court will consider these matters, as well as the impact on the parties, and the impact on parties in other cases, when deciding the speed at which a case will proceed.

The standard form reactivation notice has the above factors listed and allows the party serving it to simply tick the appropriate box. It is notable that the form does not contain a statement of truth (which is not surprising given use of the form is not compulsory and there is no requirement for a reactivation notice to have a statement of truth) and there is no basis (until the matter gets before the court some weeks/months later) on which the veracity of the form can be considered.

It is not yet clear how other circumstances which warrant priority, but are not spelled out in the OAs, will be considered by a Judge. It is, however, clear that priority must also be given to claims issued before the stay commenced in March 2020. It is likely that further guidance on prioritisation will be provided in due course, including additional circumstances warranting priority.

The new two-part hearings for possession claims

From 21st September, all new and reactivated possession claims will first be listed for a “Review Hearing” and then where necessary, a “Substantive Hearing”. A very significant electronic bundle will be required to be filed before the Review Hearing. If that is not in order, it seems the court can dismiss the claim. Our follow up article (to be published shortly) will provide detailed guidance on the new two-part system and the bundle requirements.

Listing possession claims

PD55C removed the obligation on the court to fix a hearing when a case is issued and the OAs has clarified that, in general, no date will be fixed. Additionally, the former standard period of 8 weeks between issue and hearing no longer applies. So ‘how do we get before a Judge?’ we hear you cry.

Well, from today, the court office will be listing cases and notification will, in the usual way, be sent to the parties. Of course, the correct reactivation notice will need to have been served. To give you a flavour of this incredibly burdensome task on the court office, the following, among other tasks, will now take place:

Claims lodged but not issued, due to the stay, will now be issued;
Issued claims not served, will now be served;
Receiving reactivation notices and applying to the correct court file;
Listing for review, reactivated and new claims;
Listing for substantive hearing, reactivated and new claims;

Sadly, at the Review Hearing, parties will still not get before a Judge, that will only happen at the 15 minute Substantive Hearing. More on this next week.

The guidance states that listing dates will be start to be “provided” after the stay is lifted. That statement tantalisingly suggests that that the court office may have already been processing cases and making arrangements for hearings and are simply waiting to send notices of hearings. Maybe that is overly optimistic.

Cases of a similar type of claimant (social landlords, private landlords etc) will be listed on the same day or part of a day. This will be very handy for the lawyers involved who will, in all likelihood given the backlog, be dealing with more than one possession claim in a day.

Listing will initially be undertaken for 3 months ahead with the balance of reactivated and new claims being held in reserve and listed on a weekly rolling basis.

It is important to note that a minimum of 21 days notice of a hearing is required when listed or relisted in response to a reactivation notice. Given the requirements of the reactivation notices and that many grounds for possession require 6 months notice before proceedings can be issued, it looks like nothing is going to happen particularly quickly. Morayo and Laura have also produced a note on the notice periods required to serve notices to start the possession procedure and that note can be obtained here.

It is intended that there should be a dedicated possession email address at each court centre to facilitate information and document flow. How this is monitored and will work in practice is yet to be seen.

Date for your diary: 6 October 2020, being the earliest date for evictions and that is only where Claimants have already obtained a warrant following an existing possession order and allowed 14 days written notice to the tenants. However, bailiffs are not to enforce possession orders where there are local lock down measures in place. What amounts to a local lockdown is not spelled out, and this must be worrying for landlords where, at the time of writing, most of the country has an increasing R rate and looks set to have some sort of lock down measures imposed. We await bailiff guidance from the Ministry of Housing.

Arrangements for hearings

Substantive hearings will be heard in person, unless the parties agree that the hearing should be held by telephone or video. It seems likely that in many cases this will be agreed. Hearings will only be held at court centres that are able to operate social distancing. Parties and their lawyers do not all need to be in the same room: legal representatives may appear for a party by video link and parties may attend by video link or telephone; this envisages that some hearings would be conducted in hybrid fashion with some people physically present and some joining remotely.

The intention is to have cases heard by full time DJs, and DDJs who sit extensively at a particular court centre, so that difficult pandemic related issues can be dealt with consistently and knowledge can be shared between Judges. A specific training programme is being prepared by the Judicial College for all judges who will be hearing possession cases under these new provisions.

Additional salient points to note

There have been significant adjustments to legal-aid:
- Earlier provision is available;
- Remote provision is available to allow more flexibility;
- Geographical gaps have been removed;
- It will cover some Accelerated Possession claims, unlike before;
- Non means tested, free of charge, legally aided advice and assistance will be available through a revised duty scheme.
The OAs make clear that “the Claimant is now required to set out what knowledge the claimant has as to the effect of the pandemic on the defendant and dependants. This includes in all existing cases where a Reactivation Notice is served, and in all new claims, including all Accelerated Possession Claims”. Prior to the OAs there was some debate whether this was mandatory – it is.
Local authorities are not to automatically find intentional homelessness where Defendants have agreed to possession orders. While this will allow many cases to be agreed, where before there would have been a contested hearing, which will in turn ease the burden on the court, it will create additional burden on local authorities, who may be required to provide temporary accommodation while investigating homelessness in these cases.
It is important to note that the OAs do not create any new legislation giving the court additional powers not to order possession. The limits imposed by statute remain – for example in many cases the court has very little discretion, must order possession and the only discretion available is to give up to 6 weeks before the order for possession takes effect and only then in exceptional circumstances (s89 Housing Act 1980).
The usual bailiff amnesty over Christmas has been given some weight by OAs explicitly stating that repossessions will not take place over the Christmas period.

This content 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 Chambers or by Chambers as a whole.

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