Possession Proceedings in a Post-Stay World: a CPR Update

Thu, 30 Jul 2020

Back in March 2020 the world became a very unusual place.  The government rushed to help us to navigate that world with guidance (and more guidance) which we all tried to keep abreast of as it appeared on an almost daily basis with regard to all manner of things.

In the world of possession proceedings, the first key development for practitioners was MHCLG’s press release of 18th March 2020 which suggested a “complete ban on evictions” and that “no renter in either social or private accommodation will be forced out of their home during this difficult time”.  What followed with the enactment of the Coronavirus Act 2020 fell short of that indication, bringing section 81 and schedule 29 which made a series of amendments to the usual notice periods for various types of tenancy extending the same to three months.  I wrote about the developments at the time[1].

Guidance from MHCLG followed titled ‘Government support available for landlords and renters reflecting the current coronavirus (COVID-19) outbreak’ which summarised what it termed “a package of measures to protect renters” noting, among other things, that the court service would be suspending all ongoing housing possession action initially for 90 days.

CPR Updates to date

What followed was a new Practice Direction (PD) 51Z Stay of Possession Proceedings and Extension of Time Limits effective from 27th March 2020, which I summarised in my article of that date[2].  That PD was updated further on 11th June 2020[3] and stayed all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession for 90 days from 27th March 2020 – thus until 25th June 2020.  This did not apply to claims detailed at paragraphs 2A and 3 in the PD.  The lawfulness, extent and effect of the PD was confirmed by the Court of Appeal in its Judgment in Arkin v Marshall [2020] EWCA Civ 620 on 11th May 2020.

As the 25th June 2020 fast approached, talk turned to whether the stay would be extended; and it was.  Part 55 of the CPR was temporarily amended by the addition of CPR r.55.29[4] which came into force on 25th June 2020 and provides for possession proceedings and enforcement proceedings by way oF warrant or writ of possession to be stayed until 23rd August 2020.  As with PD 51Z, among other things it further provides that a claim could still be brought, though stayed, and time does not run in respect of such stayed proceedings.

Where are we now? 

On 17th July 2020 a new PD 55C was announced which will come into force on 23rd August 2020[5]. Titled ‘Coronavirus: Temporary provision in relation to possession proceedings’, the PD supplements CPR Part 55 temporarily modifying it until 28th March 2021.  This article does not provide a complete summary of the same but a few key points are of note.

The first is the introduction of ‘reactivation’ notices in respect of stayed claims.  Pursuant to paragraph 2.1 stayed claims are not to be listed, relisted, heard or referred to a judge under rule 55.15 until such a notice is filed and served by one of the parties.  This does not apply to a claim brought on or after 3rd August 2020.  The relevance of 3rd August 2020 as the date after which a possession claim may be treated as ‘new’ is unclear.  The requirements of a reactivation notice are set out at paragraph 2.3.  Notably, except in proceedings relating to an appeal, such a notice is to “set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants”.  In cases where the claim is based on arrears of rent – again, save for in respect of an appeal – an updated rent account for the previous two years must be provided with the notice.  There is as yet no amendment to the Pre-Action Protocol for Possession Claims by Social Landlords to take account of increased arrears due to Coronavirus specifically or consideration of the impact of the same, nor any extension to encompass private rented.

Second, the court must give 21 days’ notice to the parties of any hearing listed or relisted in response to a reactivation notice.  This may be helpful in providing time to the parties to get themselves in order.

Third, where case management directions were made before 23rd August 2020 in a stayed claim, pursuant to paragraph 5.1 the party filing and serving the reactivation notice must file and serve with it a copy of the last directions order together with new dates for compliance taking into account the stay and a written statement as to whether or not the case is suitable for hearing by video or audio link.  The latter suggests that the court is at least open to the continuation of some virtual hearings. There should also be either a written statement that no new directions are required and an existing hearing date can be met or a draft order with additional or alternative directions including proposing a new hearing date.  A response must be filed and served by the other side within 14 days of service of the reactivation notice if the other parties do not agree with any matter advanced (see paragraph 5.2).

Fourth, there are a number of circumstances in which the matter will be further stayed.  In short:

  • If a trial date has been set prior to 27th March 2020 it will be vacated and the claim stayed unless paragraphs 2.1, 2.3, 2.4 and 5.1 are complied with;
  • If no reactivation notice is filed and served in a stayed claim by 4pm on 29th January 2021;
  • If no party complies with paragraph 5.1 by 4pm on 29th January 2021.

It is of note that provisions relating to relief from sanctions do not apply; and as such the mechanism for listing such a stay is unclear.

Finally, and interestingly, in respect of both new claims and stayed claims brought on or after 3rd August 2020 the Claimant must bring to the hearing two copies of a notice:

  • Setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants; and
  • Confirming that they have complied with the Pre-Action Protocol for Possession Claims by Social Landlords, where it applies, and detailing how.

The Claimant must also serve on the Defendant, not less than 14 days prior to the hearing, a notice setting out that at the first bullet point above.  If Section II of Part 55 applies the Claimant must file such a notice with the claim form for service.

Conclusion

Beyond there now being additional requirements placed upon parties which practitioners need to be aware of, the PD in requiring a reactivation notice is clearly driving towards obtaining information to help the court with listing the inevitable backlog of cases facing it given the lengthy stay of proceedings.  The purpose of the notices indicating, among other matters, the effect of COVID-19 on Defendants and their dependants is no doubt requested to assist the listing process; the information will otherwise be of limited relevance in mandatory possession cases.  It also appears that there is no minimum standard of information required as to the impact.

 

[1]https://www.no5.com/media/news/to-evict-or-not-to-evict/; https://www.no5.com/media/news/to-evict-or-not-to-evict-an-update/;

[2] https://www.no5.com/media/news/new-pd-51z-for-stay-of-possession-proceedings-and-extension-of-time-limits/

[3] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51z-stay-of-possession-proceedings,-coronavirus

[4] The Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020 (SI 2020/582)

[5] https://www.judiciary.uk/wp-content/uploads/2020/07/CPR-123rd-PD-Update-PD55C-SIGNED.pdf

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