Further to my previous update (available here) on changes to the Civil Procedure Rules paving the way for it, the new Practice Direction 55C (“PD 55C) has now been published and its contents can be found here.
As anticipated PD 55C will come into force on 23 August 2020 marking the end of the current stay on possession proceedings and it will effect claims that are currently in court, but stayed, and also new claims as and when they are brought.
Currently stayed possession claims
As indicated in the Explanatory Notes to the Amendment addressed in my previous update, for stayed claims no case is to be dealt with by the courts until the “reactivation notice” is filed and served by one of the parties. Also, any dates for trials that were listed before 27 March 2020 will be vacated unless the reactivation notice, rent account (as mentioned previously) and also updated draft directions are filed at court at least six weeks before the next hearing. If directions have been previously made then the update can simply be providing the last directions order plus new dates for compliance, taking account of the stay, or a statement confirming whether new dates or directions are actually required. It should also be noted that any new hearing date must be on at least three weeks’ notice to both parties and no sooner.
If provision of the reactivation notice is not made before 4pm on 29 January 2021 then the matter will remain stayed and a simple application to lift the stay (with the required information necessary to reactivate the claim) should lift the stay on it going forward. PD 55C confirms that lack of reactivation before 29 January 2021 will not be sanctioned and so a full application for relief from sanctions should not be required.
Also as anticipated, possession claims will not be required (at least for the duration of PD 55C) to be listed for a first hearing within eight weeks’ of their issue date. This will enable courts to have a little more time to get through the backlog of cases (plus new claims) waiting to be heard.
New possession claims
As expected, for new claims brought on or after 23 August 2020, and also for stayed claims brought on or after 3 August 2020, the reactivation notice will not be required. However, the claimant will be required to demonstrate that the Pre-Action Protocol for Possession Claims by Social Landlords (if applicable) has been complied with and how so by way of a notice to this effect.
All possession claims
In all claims landlords will also need to provide the court with the knowledge they have of how the pandemic has impacted defendants and their dependants. These requirements must be met at least two weeks before the next hearing and served on the defendant. We would also advise filing copies at court this far in advance of hearings too to ensure copies make their way to the judge’s file.
For new accelerated possession claims demonstration of meeting these requirements (by way of the required notice) should be included at the outset with the claim form.
What does all of this mean for landlords?
The changes PD 55C makes are really to buy the courts more time to deal with possession claims and to make sure the courts have all the information they will require up front. In reality questions about defendants’ circumstances, the impact on them and their dependants of the pandemic and whether landlords have engaged to try to reach a solution would have been asked by concerned judges with or without PD 55C being introduced. PD 55C really just enshrines this and sets out clearly what will be required whilst at the same time formalising the steps required to reactivate currently stayed claims.
Of course judges may not previously have had regard to such issues when dealing with possession claims brought on mandatory grounds and PD 55C does not address specifically how the information in the reactivation notice (or provided separately for new claims) will actually be used or considered by the courts, just the framework for making the information readily available to all parties and to judges.
There are further similar questions that remain unanswered. For example what will happen if a landlord states that the defendants’ circumstances are unknown (which they may well be), if a reactivation notice is indeed filed and served but is not compliant, how hearings will be handled if parties or witnesses are shielding and/or unable to use or access audio or video link technology, and what will happen after expiry of PD 55C which is set to be after 28 March 2021.
How these points play out remains to be seen but landlords can be best prepared for getting back into court for possession cases by making the relevant enquiries of defendants, engaging and attempting to engage to reach solutions wherever possible and keeping records of doing so and by having the required information readily available and providing it to defendant and the court at the earliest possibility.
For more information about PD 55C or for help with any questions about ongoing or potential possession claims please don’t hesitate to contact me.
