The Master of the Rolls, Sir Terence Etherton, has established a cross-sector working group to address concerns about the consequences of the current stay on housing possession claims ending.
The working group will be chaired by Mr Justice Knowles, the chair of the Civil Justice Council’s Access to Justice Sub Committee.
The concerns around housing possession claims were expressed by consultees who took part in the Civil Justice Council’s rapid review examining the impact of the changes mandated by COVID-19 on the operation of the civil justice system. The review was conducted by the Legal Education Foundation and the report was published today (5 June).
Respondents to the consultation addressing housing cases did note the suitability of remote hearings for case management hearings in cases where both sides were represented, and homelessness appeals on a point of law under s.204 Housing Act 1996, provided that the appellant was able to attend remotely and hear proceedings.
“However, there was broad consensus amongst respondents with expertise in housing law that injunction hearings or indeed any hearing in which there are factual issues and/or a need for in-person evidence where the attendance of the defendant is necessary, are generally not suitable for remote hearing,” the report said, although it added that respondents acknowledged that there would be exceptions, where defendants could not, or preferred not to, travel to the court and had had the opportunity to get advice and/or representation beforehand.
Possession hearings were felt to raise numerous difficulties, and respondents argued strongly that these were unsuitable for remote determination. “Many respondents with expertise in housing law, particularly those with experience of working on the housing court duty desk, emphasised the inherent unsuitability of remote hearings as a mechanism for dealing with possession cases.”
One primary reason for this related to the over-representation of vulnerable defendants in this area of law.
Respondents also emphasised that many defendants in possession proceedings were unlikely to be able to access the technology needed to participate in remote hearings, or provide instructions to solicitors where they were represented, the report said.
It added that issues were also raised regarding the availability of legal advice - many respondents noted that not-for-profit and legal aid funded agencies had experienced particular difficulties in transitioning to remote provision. “As a consequence of the combination of these factors, respondents expressed the view that possession hearings, if conducted remotely, would threaten effective participation and undermine trust in the justice system.”
A number of suggestions to enable hearings to resume were made. These included strengthening the pre-action protocol, to require landlords and lenders to demonstrate that they have taken proactive steps to secure legal advice for tenants and generalist advice to assist with the resolution of any underlying issues with accessing welfare benefits. It was felt that this could be particularly effective where social landlords were involved, the report said.
“If such a pre-action protocol was created, this would require an expansion in the availability of legal advice to meet demand. This advice could be funded by the Ministry for Housing, Communities and Local Government, in recognition of the impact of their policy in creating the 'bubble' of possession cases that the court service is required to deal with.”
Respondents also suggested the temporary relaxation of Housing Act 1988 Ground 8, which offers mandatory grounds for possession in the event of tenants accruing two-months’ notice (if paying monthly) to reflect the circumstances created by the pandemic and protect public health.
More generally, the review also found:
- 71.5% of the 871 lawyers who took part described their experience of remote hearings as positive or very positive.
- The findings suggested tentative support for reserving remote hearings for matters where the outcome is likely to be less contested, where the hearing is interlocutory in nature and for hearings where both parties are represented.
- The majority of respondents nevertheless felt that remote hearings were worse than hearings in person overall and less effective in terms of facilitating participation, seen as a critical component of procedural justice.
- Lawyers found remote hearings to be more tiring to participate in than physical hearings, particularly those that proceeded by video.
- Remote hearings were not necessarily cheaper to participate in, “which may be counter to assumptions about relative costs being lower”.
- Almost half of all hearings experienced technical difficulties. In 44.7% of hearing, respondents reported that there were problems with the technology used. More technical problems were experienced during fully video hearings than fully audio hearings.
- Measures mandated by the pandemic had reduced the availability and accessibility of legal advice, with the impact of reductions in advice disproportionately affecting those on low incomes. A number of respondents raised concerns that the economic climate created by the pandemic had caused legal need to rise, with implications for pressure on the civil justice system in the short to medium term.
- The high rate of adjournments brought about by the pandemic was raised repeatedly as a concern by professional court users.
- Problems experienced by lay users and litigants in person reported in the study were likely to be amplified if remote hearings were expanded at scale to deal with matters more likely to involve vulnerable parties and litigants in person (such as housing and debt).
- Responses from large commercial firms advocated for the expanded use of remote hearings in commercial litigation, with limited exceptions relating to cases where foreign language interpretation was required. “There was clear willingness and enthusiasm from commercial firms to reimagine what a 'Rolls-Royce' service looks like in commercial litigation, with predicted benefits for the economy and the environment.”
- In other areas of law, respondents recommended maximising the use of remote hearings in preliminary matters, interlocutory hearings and trials without evidence, particularly where both sides were represented. The majority of costs disputes were also felt to be suitable for remote determination. Respondents also emphasised the important role of continuing to list trials in encouraging parties to settle.
Commenting on the report, Sir Terence Etherton MR said: “The report is the result of an astonishing effort by all involved to produce such an informative report in a very short period of time, there were well over 1,000 responses to the review. The report provides a valuable snapshot of the effect of the pandemic on civil court users relatively soon after the pandemic began. I hope it will form a useful basis for further research and review in due course."
Dr Natalie Byrom, Director of Research at the Legal Education Foundation, said: “The Civil Justice Council’s commitment to use the report as basis for informing further research and review is very welcome.
“The report highlights systemic deficiencies in the information that is currently available on the operation of the civil justice system. The findings underscore the vital need to invest in robust systems for capturing data in order to review the operation of the civil justice system and build the evidence base for effective practice. Improving the data that is collected is vital to make the voices of litigants in person and lay users of the justice system heard.”