It’s alive!

Steps to follow in Possession Claims from 20 September 2020

Regular (unfortunate) readers will know that in recent months, I have covered some of the wide range of measures that have been introduced in response to Covid 19, which include the staying of possession proceedings.

The stay, which was first introduced back in March 2020, was due to be lifted on 23 August 2020, but in a last minute change of plan, this was delayed until 20 September 2020. Currently, any possession claim that was issued pre 27 March 2020 or issued since that date, has been stayed. From 20 September 2020, claims can be progressed, but the onus will be on the Parties so resurrect the claim, and having done so, new hoops have been introduced for Parties to jump through.

A new Practice Direction 55C has been introduced to the Civil Procedure Rules 1998 (which govern civil proceedings in England & Wales) that provides for temporary modification of Part 55 (which deals with repossession proceedings) during the period beginning 20 September 2020 and ending on 28 March 2021 ("the interim period").

Just to make things interesting, PD55C imposes different requirements depending on when a claim was issued, and also won't be troubling the judges in the "well drafted and easy to understand Rules" competition.

2 key definitions set out in PD 55C, and which need to be kept in mind when reading this article, are

• "Stayed Claim" means a claim which has been issued on or before 19 September 2020 (including an appeal from a decision in such a claim); and
• "New Claim" means a claim brought after 19 September 2020.

Claims issued before 3 August 2020

PD55C provides that unless the Court directs otherwise (the Court is going to be busy enough dealing with matters where the parties want to progress matters, so I suspect it is unlikely the Court is going to make any directions of its own volition), no Stayed Claim is to be listed relisted, heard or referred to a Judge, unless one of the parties files and serves a "reactivation notice" which confirms that they want the claim to be listed relisted, heard or referred.

There is a caveat to the above, however, which is that the requirement for a reactivation notice to be filed does not apply to Stayed Claims issued on or after 3 August 2020, or Stayed Claims in which a final possession order has been made.

The reactivation notice (which must be filed in relation to all other Stayed Claims) must record:-

• that the party wants the claim to be listed relisted, heard or referred.
• if filed by the Claimant, provide any relevant information about the Defendant's circumstances, including, if known, the effects that Covid-19 had had on the Defendant or any dependents;
• if the possession claim relates to rent arrears, an updated rent account for the previous two years must be filed

If by 4.00pm on 29 January 2021 no reactivation notice has been filed and served in relation to a Stayed Claim, that claim will be automatically stayed.

PD55C also sets out steps that need to be followed when dealing with stayed claims issued before 3 August 2020 in case management directions were made before 20 September 2020.

In such cases, a party filing and serving a reactivation notice must file and serve with it

• a copy of the last directions order, together with proposed new dates for compliance with the directions taking account of the stay before 20 September 2020;

and either

• a draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or
• a statement in writing that no new directions are required and that an existing hearing date can be met;

and

• a statement in writing whether the case is suitable for hearing by video or audio link.

If the other party/ies to the claim do not agree with any of the matters set in the reactivation notice or documents accompanying it, they are required to file and a response within 14 days of service of the reactivation notice.

As with those cases where no case management directions have been made, if no party to a claim to which the above applies has complied with these requirements by 4.00pm on 29 January 2021, the claim will be automatically stayed.

Claims issued on or after 3 August 2020

No reactivation notice is required to be filed in relation to any claim issued after 3 August 2020.

Instead, when the relevant claim is a Stayed Claim issued on or after 3 August, or a New Claim, the Claimant must

• bring to the final hearing 2 copies of a notice that
• in claims where the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirms that the Claimant has complied with that Pre-Action Protocol and provides details of how the Claimant has done so; and
• in all claims, sets out what knowledge that party has, if any, as to the effect of the Coronavirus pandemic on the Defendant and their dependants;

and

• serve on the Defendant not less than 14 days prior to the hearing the notices referred to in sub-paragraph (a) setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.

Finally, where a claim is being pursued on the basis of a section 21 notice (an accelerated possession claim), the Claimant must file with the claim form for service with it a notice setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.

As PD55C does not require the filing of an activation notice in relation to any claim issued after 3 August 2020, nor contains any provisions providing for an automatic stay on 29 January 2021 for such claims, it is anticipated that the Court will actively manage these cases itself. However, given the backlog of claims going back to March 2020, it is unlikely that post 3 August 2020 claims are going to get much attention any time in the near future.

If you have any queries arising from this article, or would like to suggest a topic for a future article, please contact Chris Drinkall on 01482 337367 or moc.s1732303792tillo1732303792r@lla1732303792knird1732303792.rehp1732303792otsir1732303792hc1732303792 Chris can also be followed on Twitter at @drinkall_chris and on LinkedIn.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.