Gearing up for the resumption of possession cases - part 227/07/20
CPR PD55C makes temporary rules that will apply between 23 August 2020 and 28 March 2021 in respect of:
- Existing possession claims and new claims issued on or before 2 August 2020;
- Claims issued between 3 August and 22 August 2020
- Claims issued between 23 August 2020 and 28 March 2021
We consider the position for social housing providers in relation to each category below.
Existing possession claims and new claims issued on or before 2 August 2020
Once the stay is lifted on 23 August 2020, cases will not be automatically listed or relisted. Where hearings had already been listed after 23 August 2020 or referred to a judge under the accelerated procedure (in CPR 55.15), these hearings will not go ahead unless a “reactivation notice” is filed and served, or the judge orders otherwise.
There is no ‘template’ or prescribed court form; nor is a court fee payable. However, there is certain content which must be included.
In all cases, the “reactivation notice” must:
- confirm that you wish the cases to be listed, relisted, heard or referred to the judge;
- set out what knowledge you have as to “the effect of the Coronavirus pandemic on the Defendant and their dependants” (unless it is an appeal);
- in a rent arrears claim, attach an updated rent account for the previous two years.
In cases where case management directions have previously been made, the “reactivation notice” must also:
- Attach a copy of the most recent directions together with any new dates for compliance having regard to the stay before 23 August 2020;
- Include either:
- a draft order setting out any additional or alternative directions now sought (including proposing a new hearing date); or
- a statement confirming that no new directions are required and that any hearing date can be met; and
- a statement as to whether the case is suitable for hearing by video or audio link.
Claimants or defendants can file and serve a “reactivation notice”, although in practice it is likely to be a claimant who does so. If a recipient of a “reactivation notice” does not agree with any of the content, they must file and serve a response within 14 days.
If no party files a compliant notice by 4.00 p.m. on 29 January 2021, then the claim will be stayed again and a formal application – albeit not one applying for relief from sanctions – will need to be made to reinstate the claim: this will incur a court fee.
Cases issued between 3 August and 22 August 2020
There is no requirement to file a “reactivation notice” but the Claimant must produce and serve on the Defendant 14 days before the hearing and bring to (or make available for) any hearing two copies of a notice which:
- confirms that the Pre-Action Protocol for Possession Claims by Social Landlords (“PAP”) has been complied;
- details how the claimant has complied with the PAP;
- sets out what knowledge you have as to “the effect of the Coronavirus pandemic on the defendant and their dependants”.
It is likely that the PAP will be amended although, at this time, it remains as it was prior to the start of the pandemic.
An accelerated claim for possession must be accompanied by a notice which sets out what knowledge you have as to “the effect of the Coronavirus pandemic on the Defendant and their dependants”.
Cases issued between 23 August 2020 and 28 March 2021
The same rules as for cases issued on or after 3 August 2020 will apply to cases issued between 23 August 2020 and 28 March 2021 except for one important difference.
Currently, when the time issues a possession claim, CPR 55.5(3) requires the court to fix a hearing, at the time of issue, which is in a window not less than 28 days after issue but not more than eight weeks.
However, once the rules take effect on 23 August 2020 until 28 March 2021, the court will no longer have to:
- provide a hearing date when it issues the claim (it can do so at a later time)
- set a first hearing before eight weeks have elapsed (which it is currently required to do
Accordingly, providers may wish to think about ensuring the more urgent claims yet to be brought are ‘issued’ in the window between 3 and 22 August 2020 if they want to ensure that a listing is provided at the time of issue.
After 23 August 2020, providers should expect considerable delays.
Enforcement of existing possession orders
None of the requirements of CPR PD55C apply to claims where a possession order has already been made but not enforced.
However, the court will doubtless be interested to understand, on any stay application, the effect that the pandemic may have had on the defendant and their dependants. We would advise providers:
- that it is prudent to make such enquiries and consider any Equality Act 2010 issues - e.g. disability arising from mental health - that may have arisen or been exacerbated during the ‘lockdown’;
- to document those in a written ‘proportionality’ assessment;
- to start making those enquiries now.
Applications for new warrants or new dates for existing enforcement of existing warrant can be made from 23 August 2020.
How can Capsticks help?
We remain well placed to continue to help you deal with cases swiftly and are in regular contact with your local courts to keep a finger on the pulse of any differing practices they are adopting.
If you have any queries around what is discussed in this article, or the steps that you can take in any given case, please do not hesitate to speak to Simon Strelitz, or any of your contacts at Capsticks, to find out more about how we can help.