After the mystery of the Rules laid last Friday, we now had the text of Practice Direction 55C, which will come into effect on 23 August 2020 at the end of the Part 55.29 stay of possession proceedings. The text can be read here.
The key elements are.
- This PD applies until 28 March 2021 (with reviews during that period).
- It affects both ‘stayed claims’ (brought on or before 22 August 2020) and ‘new claims’ (brought on or after 23 August 2020) but in different ways.
For stayed claims, the following applies.
For stayed claims brought before 3 August 2020, where no possession order had been made before the stay:
2.1 unless the court directs otherwise, no stayed claim is to be—
(a) listed;
(b) relisted;
(c) heard; or
(d) referred to a judge under rule 55.15,
until one of the parties files and serves a written notice (a “reactivation notice”) confirming that they wish the case to be listed, relisted, heard or referred.
(…)
2.3 A reactivation notice must—
(a) confirm that the party filing and serving it wishes the case to be listed, relisted, heard or referred; and
(b) except in proceedings relating to an appeal, set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.
2.4 Except in proceedings relating to an appeal, where a reactivation notice is filed and served by the Claimant and the claim is based on arrears of rent, the Claimant must provide with the notice an updated rent account for the previous two years.
Any trial date set before the stay came into force on 27 March 2020 is vacated and the claim stayed unless a reactivation notice, updated rent account and updated draft directions (see below) are filed and served not less than 42 days before the hearing.
What if no reactivation notice is filed? If no such notice is filed by 4 pm on 29 January 2021, the claim is stayed automatically (2.6). But this further stay is not a sanction for breach, so any subsequent application to lift the stay does not have to meet the CPR 3.9 conditions for relief from sanctions (2.7).
Under 5.1, for a stayed claim where case management directions had been made before 23 August 2020, any party filing and serving a reactivation notice must also file and serve:
(a) a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 23 August 2020; and
(b) either—
(i) a draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or
(ii) a statement in writing that no new directions are required and that an existing hearing date can be met; and
(c) a statement in writing whether the case is suitable for hearing by video or audio link.
Any reply by the other party must be within 14 days of service of the reactivation notice (5.2).
Again, if 5.1 has not been complied with by 29 January 2021, the claim will be automatically stayed (5.3) and again, this is not a sanction for breach (5.4).
Any relisted hearing must be on at least 21 days notice to the parties (3.1)
4.1 removes the 8 week period for listing a first hearing in CPR 55.5. So the court can list a first hearing however long after the issue of a possession claim (stayed or new) it fancies or needs to.
For new claims (on or after 23 August 2020) and for stayed claims brought on or after 3 August 2020, the following applies:
6.1 In any claim (whether a new claim or a stayed claim) brought on or after 3 August 2020, the Claimant must—
(a) bring to the hearing two copies of a notice—
(i) in a claim to which the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirming that the Claimant has complied with that Pre-Action Protocol and detailing how the Claimant has done so; and
(ii) in all claims, setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants; and
(b) 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.
Oh and for new or post 3 August 2020 claims to which Part II CPR 55 applies – ie Accelerated Possession Claims (6.2) :
In any claim (whether a new claim or a stayed claim) brought on or after 3 August 2020 to which Section II of Part 55 applies 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.
Comment
What to make of this?
First, it has to be said that this is basically concerned with case management and case listing by the court. My guess is that it has been acknowledged that for a substantial possession claim case load, remote hearings will not be appropriate, for reasons of technology and economics, and also because a duty scheme would have been impossible. But at the same time, the old practice of block listing possession claims for 10 minute (or less) first hearings will be practically impossible for the currently foreseeable future, as the court estate is not up to enabling social distancing for the numbers involved. The practice direction is first and foremost about removing scheduling limits (the CPR 55.5 eight weeks) and providing the court with information about how hearings might be held (is it suitable for video or phone, is the tenant shielding so in court hearing not suitable) and so on.
That this is the primary basis for the PD is illustrated by the requirement for the party filing and serving a reactivation notice (largely the landlord) to provide information as to what is known about the effect of the coronavirus on the tenant and dependants, even in accelerated possession claims (where there is not generally a hearing). That information can have no actual effect at all in section 21 claims, or in ground 8 arrears claims where the ‘effect of the coronavirus’ on the tenant can have absolutely no effect on the court making an outright possession order at all. (At the very best, in such cases, I suppose it could be information considered in deciding whether to extend the date when the order takes effect to the maximum of 6 weeks from the date of the order, but this is not stated in the PD).
The information provided in the reactivation notice may, conceivably (although not mentioned in the PD) be information to which a court might have regard on a possession claim on discretionary grounds. But even then, the PD only asks that the party filing and serving the reactivation notice provides ‘what knowledge they have’ of the effect of coronavirus on the tenant. That knowledge might well, of course, be ‘none known’. There is no obligation to make inquiries.
Which reminds me, there was much talk of a general pre-action protocol on possession claims that would encompass private sector as well as social sector. There is, as yet, no sign of this and no mention in the PD.
Then there are the oddities.
Why is a possession claim made on or after 3 August 2020 effectively treated as a ‘new claim’ when the stay extends to 22 August, and the PD doesn’t come into effect until 23 August? This way confusion lies. How can the PD require claims filed on or after 3 August to include specified information when the PD isn’t yet in effect?
What is meant by “the effect of the Coronavirus pandemic on the Defendant and their dependants.” What sort of knowledge or information would this encompass?
What happens if a landlord just says ‘unknown’. Does that comply with 2.3(b)? It would seem to.
What happens if a reactivation notice that is not fully compliant is filed and served? Is the stay lifted? Is there any sanction? Who knows.
And lastly, the 29 January 2021 thing? As far as I can see this leaves the possession claim hanging, with the risk to the tenant that the claim could be restored on application by the landlord at any point thereafter, because there is no ‘relief from sanction’ test so a simple application should do it.
What this is absolutely not is a means to address the impact of the pandemic, the lockdown and the economic consequences on renters. At best, it will mean delay in possession claims for court management reasons, and hopefully access to housing possession duty scheme assistance for tenants.
In a response in parliament to the Shadow Housing Secretary on 20 July 2020, the Housing Minister Christopher Pincher said
“My Rt Hon friend the Lord Chancellor I think is about to introduce a measure that will make it very difficult for those landlords who do not bring forward good cause in bringing their application to court by describing what the effect on their tenants is going to be of an eviction then the courts will be able to adjourn them”
The Housing Minister was, shall we say, muddled at best. At worst, well…