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New court arrangements and rules affecting residential possession claims during the coronavirus pandemic

Between 27 March 2020 and 20 September 2020 all possession proceedings were suspended to protect tenants and homeowners from the impact of the coronavirus pandemic. This suspension was lifted on 21 September 2020. There are now, however, new court rules and arrangements in place which landlords need to be aware of.

Reactivation Notice

If a landlord made a possession claim to the court before 3 August 2020, they are required to notify the Court and their tenant that they still intend to seek repossession before the case will proceed, including in section 21 cases. Reactivation notice may be done at any time from 21 September 2020 until at least 29 January 2021. A template Reactivation Notice is available from the Court Service.

In existing claims where case management directions were made before 21 September 2020, a party filing and serving a Reactivation Notice must propose new dates for directions and proposed hearing date, or state that no new directions are required and that an existing hearing date can be met.

Enhanced information

New court rules are now in force which require landlords to set out any information they are aware of in relation to how their tenant, or any dependant of their tenant, has been affected by the coronavirus pandemic. This includes in all existing cases where a Reactivation Notice is served, and in all new claims, including all Accelerated Possession Claims.

Albeit it is not clear whether a failure or refusal to make reasonable enquiries would or could result in the court refusing to make possession orders, District Judges may be unimpressed by claimants who do not make any reasonable enquiries and in such cases landlords may well find their cases at the back of what is already a very long queue and any element of discretion being exercised in favour of tenants.

It is recommended, therefore, that landlords contact their tenants (this can be done by phone or e-mail so as not to lose time in the postal service) to ask whether COVID-19 has had any bearing on their circumstances, so that the landlords can show that they have tried to make enquiries.

Where the claim relates to rent arrears, there is also a new requirement for landlords to provide an updated rent account for the previous two years in advance of the hearing. Where this information is not provided, judges have the ability to adjourn proceedings.

Prioritisation of cases

From 21 September 2020, the courts will now consider possession cases again. The judiciary has agreed to prioritise the most serious cases for action. As a guide, priority will be given to claims issued before the stay commenced in March 2020, and to cases including those involving anti-social behaviour, extreme rent arrears, domestic abuse, fraud and deception, illegal occupiers and squatters or abandonment of a property and unlawful subletting.

Covid-19 Case Marking

Where a landlord is seeking possession as a result of suffering financial difficulty due to the pandemic, the landlord can draw that to the court’s attention by marking the claim ‘COVID-19’. Likewise, where difficulties suffered by a tenant as a result of the pandemic have brought about the situation where possession is being sought, the tenant can mark their challenge ‘COVID-19’.

Covid-19 Case Marking by a Defendant will require the following information from the Defendant:

• brief details of the particular hardship faced by the Defendant;

• whether there were material arrears outstanding before March 2020;

• whether the Defendant has been placed on furlough, and whether the Defendant offered or paid a related proportion of rent or borrowing arrears;

• whether the Defendant has obtained universal credit since March 2020, and whether the Defendant offered or paid a related proportion of rent or borrowing arrears;

• whether the Defendant has been unable to earn by reason of Covid-19;

• whether the Defendant has been shielding;

• what proposals the Defendant has to pay the rent or borrowing arrears.

Covid-19 Case Marking by a Claimant will require the following information from the Claimant:

• brief details of the particular hardship faced by the Claimant;

• whether the Claimant has received assistance under a Covid-19 scheme, including (where a Landlord) with any borrowing by the Landlord in respect of the property.

Listing of hearings

Generally speaking, the Court will not fix a hearing date when it issues the claim form.The former standard period between issue and hearing of 8 weeks does not apply.

Cases (stayed and new) will now ordinarily proceed with a Review (see below) and then (where necessary) a Substantive Hearing (see below) unless there are existing case management directions that provide otherwise. (For Accelerated Possession Claims see separately below.)

Generally, the Substantive Hearing Date will be fixed on the Review Date, although at some court centres the Substantive (S) Hearing Date may be advised in the same communication as the Review Date is advised. On either approach the Substantive Hearing Date should be 28 days after the Review Date.

Review

14 days before the date listed as the Review Date the claimant will be required:

(a) to provide to the Court an electronic bundle (with a paper bundle allowed as an alternative);

(b) to confirm to the Court that a paper bundle had been provided to the defendant (with an electronic copy in addition where the defendant is able to receive that);

(c) to confirm to the Court that the bundle includes all required material, specifically including enhanced information about the defendant now required;

(d) to confirm to the Court that the claimant will be available during the Review Date to discuss the case (by telephone would be sufficient) with the defendant or a duty scheme (or other) adviser.

The Review Date is an important new opportunity for the defendant to obtain free of charge duty scheme advice, and for the claimant and the defendant to reach agreement (with the assistance of the duty adviser).

On the Review Date a very short Review appointment will be listed by the Court. This will be conducted by a Judge on the documents and without attendance by the parties. The Review is for 5 minutes. No court fee will be payable in relation to a Review or any order made on the Review Date.

The Review will be at the end of the sitting day so that if on that day the claimant and the defendant resolve the case, or agree directions, then the Court will be available to make the orders required. This will still be without attendance of the parties; the agreed order should be provided (usually by the duty scheme adviser who has assisted the defendant to resolve the case or agree directions) to the member of staff/ usher attached to the Judge and courtroom throughout the day.

If the case is not resolved by agreement, the Judge will consider the bundle provided by the claimant and the Court file. If the claimant’s documents are in order the case will proceed to a Substantive Hearing 28 days later. If the claimant’s documents are not in order the Court can be expected to dismiss the claim (with liberty to apply for reconsideration at an oral hearing) or may give directions.

Substantive Hearing

Where a Substantive Hearing is listed, all parties must attend. The hearing will be for 15 minutes, with additional time between hearings for Covid-19 safety procedures.

Unless the claimant and the defendant resolve the case, the Court will decide the claim or give further case management directions. Where the issues are complex or the evidence or argument requires, these directions may be towards a fuller substantive hearing with an individual time estimate and listing.

It can be expected that the question of adjournment will be considered, without the need for an application to adjourn, in any case where (a) there is no sign that advice has yet been made available to the defendant and (b) the consequences of the order may be serious in the context of the pandemic.

Accelerated Possession Claims

In accordance with existing rules, in some cases (Accelerated Possession Claims) an order for possession may be made without a hearing by a Judge to whom the papers have been referred for this course to be considered.

Accelerated Possession Claims are now, however, subject to the following:

(a) Accelerated Possession Claims issued before 3 August 2020 will require a Reactivation Notice as with all other stayed claims.

(b) Where the parties agree or there is no objection, the Judge to whom an Accelerated Possession Claim has been referred for consideration may direct that a Review Date be listed to enable the Defendant to receive duty scheme advice and assistance.

(c) If on consideration of an Accelerated Possession Claim referred to the Judge for consideration the Judge directs a Substantive Hearing (giving any appropriate case management directions, and with the parties to attend) that will be listed as a Substantive Hearing unless otherwise directed.

Legal advice and assistance for defendants

Non-means tested free of charge legally aided advice and assistance will be available to the defendant through revised duty scheme arrangements, at two points:

(a) (as a new arrangement) early advice one month (28 days) before the first substantive hearing (i.e. on Review Date), and also;

(b) (as now) advice at the first substantive hearing if there needs to be one (i.e. at Substantive Hearing Date).


Nastassia Khilkevich

Ebrief - 20th October 2020