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:
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:
Case Marking by a Claimant will require the following information from the Claimant:
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:
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.
This update has been prepared based on the information available and the Civil Procedure Rules as at 14 November 2020.