18/07/2020

Mystery directions

In the evening of Friday 17 July, The Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 appeared, having apparently been laid earlier that day. These will come into force on 23 August 2020.

What the Rules do is amend the Civil Procedure Rules to add a new Practice Direction 55C, to come into effect at the end of the CPR 55.29 stay on 24 August 2020.

2. In Part 55 of the Civil Procedure Rules 1998(1)—

(a) at the beginning of the list of contents insert—

“Coronavirus – temporary provision Rule 34.7A”; and

(b) before rule 55.1 insert—

“Coronavirus – temporary provision

55.—(1) Practice Direction 55C makes provision for how claims under this Part (including appeals) are to proceed following the expiry of the stay provided for by rule 55.29.

(2) This Part has effect subject to Practice Direction 55C for the period specified, and in the manner specified, in Practice Direction 55C.”.

What we don’t know yet is what Practice Direction 55C will say and do…

There are, however, some clues in the explanatory notes to the Rules. These suggest that PD 55C will last until 28 March 2021, with interim reviews, and that it is the result of the deliberations of the emergency working group on possession claims.

Work on considering what arrangements and procedures are required, and how best to manage possession cases after the lifting of the stay on possession proceedings on 23 August 2020, has been undertaken, in particular by an emergency working group since 1 June. The group is led by senior judiciary and includes representatives of government departments and agencies, legal representatives and members from the advice sector, and has considered how best to address matters affecting litigants and the courts after lifting of the stay on possession proceedings is lifted.

What PD 55C will include is said to be:

– a requirement for a claimant to inform the court who wishes to resume stayed proceedings to inform the court and defendant in writing of this after the expiry of the stay in a “reactivation notice”;
− requiring the claimant to provide (in the particulars of claim reactivation notice or for the hearing as appropriate) any relevant information about the defendant’s circumstances to include 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”;
− to allow the court to fix a date either on or after issue (so that hearings may be appropriately spread out and avoiding “bunching”.
− to suspend the standard period between issue of a claim form and hearing which usually would be not more than eight weeks, again to spread out hearings appropriately in particular having regard to court capacity;
− to require a claimant so far as practicable to produce the full arrears history in advance rather than at the hearing.

So, the main effect of this is to allow the courts to delay and spread out hearings – presumably to enable social distancing.

The ‘reactivation notice’ requirement may well catch out a lot of landlords who will be waiting for claims to re-start, but it is the requirement to provide relevant information about the defendant’s circumstances that raises a lot of questions. This is apparently to enable the court to have regard to defendant’s vulnerabilty etc. but how could that work (or have any point) with mandatory possession grounds (via section 21 or under Ground 8, for example) where those factors can have no effect on whether the court makes a possession order or indeed the terms of that order (save for the up to six weeks period by which the date of possession can be delayed). Would this apply to, for example, restarting a possession claim under the accelerated possession procedure? If so, what is the point?

Just to make things even less clear, under the Impact Assessment section, the explanatory notes say

The temporary arrangements for possession proceedings will have an impact on landlords who have been unable to pursue proceedings for eviction and will be required to demonstrate that they have engaged with their tenants in an effort to find a solution before making a claim.

But that sounds more like a pre-action protocol than a practice direction on resuming possession claims. There was a pre action protocol promised, but of that too there has been no sighting.

We will just have to wait and see what comes.

This not a measure that will reduce the number of possession claims, or do anything about what is feared to be a substantial increase in possession claims as a result of the financial impact of the pandemic on tenants. It does, however, quite possibly mean that those possession claims will take longer.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. Anon

    Is the reactivation notice to be in a prescribed form?

    Reply

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