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On Friday 17 July 2020 there was an update to the rules on the stay of possession claims in response to the coronavirus pandemic.
The new Civil Procedure (Amendment No.4) (Coronavirus) Rules 2020 will be in force from 23 August 2020. These new rules introduce a new Practice Direction 55C into the Civil Procedure Rules from 24 August 2020 onwards.
However, these new rules do not give us a copy of Practice Direction 55C but simply say that it will be in place temporarily and that it will make provision for how possession claims under [Part 55] (including appeals) are to proceed following the expiry of the stay currently provided for by rule 55.29.
The new rules’ explanatory notes though do however give a little more detail. They explain that the new Practice Direction has come into play following work of an emergency working group on possession claims led by senior judiciary, that it will last until 28 March 2021 and that it will be subject to interim reviews.
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The notes state that the following will be included in the new Practice Direction:
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· a requirement for a claimant to inform the court and defendant in writing that they wish to resume stayed proceedings after the expiry of the stay by filing and serving a “reactivation notice”;
· a requirement for the claimant to provide (in the particulars of claim, in the reactivation notice or in advance of the hearing) any relevant information about the defendant’s circumstances (including information on the effect of the pandemic on the defendant and his/her dependants, which will enable the court to have regard to vulnerability, disability, and social security position, and those who are “shielding”);
· the ability for the court to fix a date either on or after issue and to suspend the standard period between issue of a claim form and hearing which usually would be not more than eight weeks (to help with the spreading out of hearings); and
· a requirement for the claimant, so far as is practicable, to produce the full arrears history in advance rather than at the hearing.
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It seems then that the courts have two key foci - maintaining social distancing and considering the potential vulnerability of defendants.
The key question for many landlords will likely be how coronavirus related vulnerability will play into possession claims based on mandatory grounds or based on evidence of incidents with no clear link to the pandemic. This will remain to be seen.
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So, how can landlords best prepare for getting back into court?
Firstly, be sure not to forget to file and serve the reactivation notice and to do this at the earliest opportunity.
Secondly, gather evidence on how you have engaged with tenants in an effort to find a solution before making a claim. The explanatory notes say demonstrating this has been done will be a requirement of claimant and so if landlords can show this has been done before they are even asked that should bolster those claims where reaching a solution has not been possible, despite being attempted.
Thirdly, ask defendants about their circumstances so that as much information as possible can be provided to the court. This should really be dealt with hand in hand with engaging to find a solution as the defendant’s circumstances should inform landlords’ decision-making. Remember that records of this decision making and these conversations should be kept ready to be produced at court if not beforehand.
Finally, be ready for delays. While this new rule does not seem to limit which claims can be brought or when, it does seem to add further requirements and delays and so careful management of cases while we wait for decisions from the courts will be as, if not more, important than ever.
If you have any questions about any ongoing, new or potential possession claims please do not hesitate to get in touch with Zoe.
