Andy Lane explains and provides an overview of the post-23 August 2020 landscape for residential possession claims.
There has been a lot written over the last few weeks about what will happen when the possession claim stay is lifted. It will be recalled that the stay was imposed in response to the pandemic on 27 March 2020 for an initial period of 90 days in the form of Practice Direction 51Z (and we held a webinar covering this and other issues) before being extended for a further 8-week period with effect from 25 June 2020, expiring on 23 August 2020 (by way of CPR r. 55.29).
On 5 June 2020 the Secretary of State for Housing, Communities & Local Government, Robert Jenrick MP, announced the ending of the stay on the August date and since then a (temporary) Practice Direction 55C, which explains what will happen post-stay, has been published and will come into force on 23 August 2020 (and continue until 28 March 2021).
Possession claims remain stayed until 23 August 2020, unless:
(b) Case management directions are agreed by the parties: CPR r. 55.29(2)(c).
From that date careful regard must be had to two provisions in particular – the aforementioned Practice Direction 55C and the (temporary) notice provisions to be found in Schedule 29 of the Coronavirus Act 2020. To summarise some of the main points (though the whole practice direction should be read):
1. The statutory provisions set out in Schedule 29 and providing for an extension of the usual periods required in possession notices to 3 months, such as the notice seeking possession or notice requiring possession, continue to apply until 30 September 2020. Kuljit Bhogal and I have previously written about these provisions.
Post-2 August 2020 claims
2. PD55C has no application to any possession claim brought on or after 3 August 2020, and from 23 August 2020 such claims will be able to proceed as 'normal', except that paras. 4.1, 6.1 and 6.2 do apply as explained at 3. and 10. below.
3. In all possession claims - stayed, post-3 August and new - the Claimant must bring to the hearing two copies of a notice (served on the Defendant at least 14-days prior to the hearing):
- in a claim to which the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirming that the Claimant has complied with that Protocol and how the Claimant has done so; and
- in all claims, setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants: paras. 6.1-6.2.
4. A reactivation notice confirming that the party (presumably the Claimant) wishes the case to be listed, re-listed, heard or referred will have to be filed and served under the PD55C provisions – unless a final possession order has been made or the claim was issued on or after 3 August 2020 - before a case can proceed, even where a case has already been listed for a hearing/trial on a date post-23 August 2020. If not done by 29 January 2021 the claim will be automatically stayed (though an application can simply be made to lift the stay) – there is a similar provision at paras. 5.3-5.4 where the case management provisions have not been complied with (see 8. below): para. 2.
5. Except in proceedings relating to an appeal, the reactivation notice should also set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants: para. 2.3(b).
6. The court must, unless it directs otherwise, give at least 21 days' notice to the parties of any hearing listed or re-listed in response to a reactivation notice: para. 3.1.
7. Except in appeal proceedings, where a reactivation notice is filed and served by the Claimant and the claim is based on arrears of rent, the Claimant must provide with the notice an updated rent account statement for the previous two years: para. 2.4.
8. For those stayed claims where case management directions were made before 23 August 2020, a party filing and serving a reactivation notice must also file and serve with it a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 23 August 2020. In addition they must serve either a draft order setting out additional or alternative directions (including proposing a new hearing date) which are required, or a statement in writing that no new directions are required and that an existing hearing date can be met, and a statement in writing whether the case is suitable for hearing by video or audio link. If the other parties do not agree with any of this they must file and serve a response within 14 days of service of the reactivation notice: paras. 5.1 and 5.2.
9. Unless the court orders otherwise, any trial date which had been set prior to 27 March 2020 will be vacated and the case stayed unless a party complies with the reactivation notice and case management provisions not less than 42 days prior to the hearing date: para. 2.5.
Listing of first hearing
10. The usual issue provisions to be found at CPR r. 55.5 are modified so that the first hearing date will not necessarily be provided on the issue of the claim form and the standard 8-week period for such a listing is dis-applied: para. 4.1.
It follows from the above that there is extra work and consideration to be undertaken by claimant landlords in particular, even after the stay has been listed, and a real possibility, for obvious reasons, of delayed hearings and administrative error. It must also be remembered that remote hearings will continue for the foreseeable future alongside a steadily increasing number of in-person attendances.