Dispute Resolution Update November 2020: Practice Direction 55C and the new procedures for Housing possession claims

When the general stay on possession proceedings came to an end on 20 September 2020, the court system faced increased demand from landlords who wanted to reactivate claims that had been stayed and increased demand from landlords who wanted to bring claims to seek to regain possession, that were unable to do so when the stay was in effect.

In anticipation for this increased demand and the backlog of possession cases, Practice Direction 55C (“PD 55C”) was introduced on 23 August 2020 to provide a temporary modification of Part 55 possession proceedings and set out new procedural steps required. The rules in PD 55C are to have effect for the period between 20 September 2020 until 28 March 2021, known as the “interim period”, and will be subject to review during this time.

The additional measures in PD 55C were implemented to assist the courts with the transition period of reactivating claims and to try to promote best practice and consistency in relation to possession proceedings in the context of the pandemic. The Government want to ensure housing possession proceedings are handled in a sensitive and proportionate manner given the public health implications of Covid-19 and the need to prevent homelessness, whilst also protecting the interests of private landlords.

Although the end of the stay may be welcomed news for landlords who can now resume their existing claims and/or issue new claims for possession, landlords are required to jump through more procedural hoops than before and it will now take longer for them to regain possession. The standard 8-week timescale for hearings will no longer apply while PD 55C is in force and landlords may also face difficulties in enforcing any order for possession while national lockdown measures are in effect.
Under PD 55C, different requirements will apply depending on when the possession claim was first issued.

Claims stayed prior to 3 August 2020

For any stayed claims brought before 3 August 2020, landlords who wish to reinstate proceedings stayed must complete a written “Reactivation Notice”, which they must provide to both the court and the Defendant.

This applies to any claims whose trial date was set prior to 27 March 2020 and any possession hearings that were due to be heard between 27 March and 23 August that were automatically stayed pursuant to Practice Direction 51Z. However, no reactivation notice will be required when a final possession order has been made.
The Reactivation Notice must:

state that the Claimant wishes for the claim to be listed, relisted, heard or referred to a judge;
set out the Claimant’s knowledge of the Defendant tenant’s situation in respect of how the coronavirus pandemic has affected the Defendant and their dependents;
where the claim is based on rent arrears, attach a rent account, showing the rent possession for the previous two years;
for existing claims where case management directions were previously made, attach a copy of the last directions order, draft order setting out additional directions, or, alternatively, a written statement stating that no new directions are required; and
include a written statement as to whether proceedings may be heard by video or audio link.
Once the Reactivation Notice has been filed and served, the Defendant has 14 days to file and serve a response if they disagree with any of the points raised.

Consequences of failing to provide a Reactivation Notice

Unless the Court orders otherwise, the claim will not be listed, heard or referred to a Judge until one of the parties serves a Reactivation Notice not less than 42 days prior to the hearing date. This can be done anytime from 21 September until at least 29 January 2021.

If no reactivation notice has been served by 4pm on 29 January 2021, then the claim will be automatically stayed.

New claims and those stayed on or after 3 August 2020

For possession claims (whether new or stayed) on or after 3 August 2020, the Claimant must now file with the Claim Form a Reactivation Notice, serve the Reactivation Notice on the Defendant not less than 14 days prior to the hearing and bring two copies of the notice to the hearing. Social landlords will also need to confirm they have complied with the Pre-Action Protocol for Possession Claims by Social Landlords. Under the new facility for Covid-19 Case Marking, the Court file will also be marked to highlight any case that is or is claimed to be a direct consequence of Covid-19.

What is Covid-19 Case Marking?

Covid-19 Case Marking is designed to help highlight any settlement suitability, draw attention to cases where one of the parties may be in particular difficulty as a result of the pandemic, assist with listing and case management and assist in monitoring. Either party can request the case is case marked and a request can be made at any stage and by any means, but they will need to inform all parties of their request. The request will result in marking unless there is an objection, and if there is an objection then the court will decide on the documents where the case should be case marked when the file is next before a Judge.

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.
Case Marking by a Claimant will require the following information from the Claimant:

Brief details of the particular hardships faced by the Claimant; and
Whether the Claimant has received assistance under a Covid-19 scheme, including any borrowing by the landlord in respect of the property.
Listing of claims: which cases will take priority?

For all claims, whenever they were issued, the standard 8-week period between issue and the hearing will no longer apply during the interim period and cases will be listed up to around 3 months ahead. The Court has issued guidance that the following cases will be listed with priority:

Cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1982
Cases with extreme alleged rent arrears accrued, that is, arrears equal to at least (i) 12 months’ rent or (ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source;
Cases involving alleged squatters, illegal occupiers or persons unknown;
Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted);
Cases with allegations of fraud or deception;
Cases with allegations of unlawful subletting;
Cases with allegations of abandonment of the property, non-occupation or death of defendant; and
Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.
Subject to the above, priority will also be given to claims issued before the general stay commenced on 27 March 2020.

During the interim period, it is important that the rules set out in PD 55C are followed properly to ensure claims can move forward as efficiently as possible in the circumstances.

The new rules require landlords to be more proactive and provide the court with details regarding the situation of their tenants in light of coronavirus and encourages them to try to engage with tenants to reach solutions prior to bringing claims where possible.

Whether you are a tenant facing possession proceedings or a landlord with queries regarding the new measures set out in PD 55C, please feel free to contact our Dispute Resolution team for specialist advice and assistance (disputeresolution@curzongreen.co.uk).

This update has been prepared based on the information available and the Civil Procedure Rules as at 14 November 2020.