Some things that emerged today, ahead of the resumption of possession claims on Monday 21 September.

Gov.uk now has a “Reactivation Notice” form (one for claimants, one for defendants). Note this is not a statutory or prescribed form. There is no set format for a reactivation notice.

The page says “Please do not use these documents before 20 September 2020. There is no need to rush to reactivate – you have until 4pm on 24 January 2021.” Which is not necessarily the case. Any possession claim with a hearing already listed requires a reactivation notice to be filed and served at least 42 days before the hearing – Practice Direction 55C 2.5.

The notice itself says

You are required to set out the knowledge you have as to the effect of the Coronavirus pandemic on the Defendant and their dependants. Please do so in the box below. This is very important. If you have no knowledge you could consider taking reasonable steps to find out before using this Notice.

Which is a nice suggestion, but taking steps to find out is not required by PD 55C. Hence ‘you could consider’.

The form also has boxes to tick if the claimant thinks the claim should be prioritised. These reasons include “at least 12 months’ rent or (in the case of a private landlord) 9 months’ rent if that is at least 25% of the private landlord’s income,” Quite how or whether that proportion of income is to be evidenced is wholly unclear, so I suspect that box might get ticked quite a lot, whether accurate or not.

On the prioritisation of cases, the other big thing that emerged today is the “OVERALL ARRANGEMENTS FOR POSSESSION PROCEEDINGS IN ENGLAND AND WALES”. This is the final version of the Master of the Rolls’ working party conclusions as to how possession proceedings will be conducted, as issued to the courts.

There is a lot in there, some of which we already knew or guessed at, some of which is new. Some edited highlights:

New and existing possession cases that will be given priority in listing are (non-exhaustively)

(a) Cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1985.
(b) Cases with extreme alleged rent arrears accrued, that is, arrears equal to at least (i) 12 months’ rent or (ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source.
(c) Cases involving alleged squatters, illegal occupiers or persons unknown.
(d) Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted).
(e) Cases with allegations of fraud or deception.
(f) Cases with allegations of unlawful subletting.
(g) Cases with allegations of abandonment of the property, non-occupation or death of defendant.
(h) Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.

Possession cases will be dealt with by DJs and DDJs who mainly sit at a particular court centre. An additional 200 DDJ and Property Tribunal Judges have been arranged to assist as required (the Tribunal Judges being able to sit as county court judges after all). Hearings will be primarily physical for substantive hearings, subject to the parties’ agreement. A legal representative for a party may be able to attend by video link if the party is at court, or if the representative is physically present, the party may be able to appear by video.

The procedure (except in accelerated possession claims – see below) will now be that there will be an initial ‘review date’ (for both stayed and new claims).

21 days notice will be given of the review date. Then 14 days before the review date, the Claimant must provide an electronic or paper bundle for the court and a paper bundle for the Defendant (unless an electronic copy is acceptable for the Defendant. The Claimant must also make themselves available on the review date to discuss the case with the Defendant or their adviser or duty adviser (by phone). (Duty scheme advisers apparently will be paid for this work on review dates). At the end of the review date, the court will conduct a 5 minute review (without attendance by the parties) and make further directions or approve any consent orders agreed. The review date may also be the gateway to the new proposed pilot independent facilitated negotiation/mediation scheme.

The Arrangements say:

53. To ensure that compromise is not deterred, local authorities will be expected to take the approach, guided by the Ministry of Housing, that signing a consent order or agreeing an order for possession, in itself, does not mean a tenant or borrower should be found intentionally homeless.

Good luck with that…

Substantive hearings that follow will be 15 minute hearings, with gaps between, and listed at least 28 days after the review date. There will be no block listings. (It looks like listing will be at about 25% of previous block listing capacity).

Accelerated possession claims will generally be on the papers, as before. However:

67. Within the Overall Arrangements, Accelerated Possession Claims are however subject to the following:

(a) Accelerated Possession Claims issued before 3 August 2020 will require a Reactivation Notice as with all other stayed claims.
(b) As a guideline, Accelerated Possession Claims will be dealt with having regard to the priorities listed in the section on Prioritisation above. (How? How will the court know? What would the landlord have to evidence? NL)
(c) Each court centre will refer Accelerated Possession Claims to a Judge at manageable frequency.
(d) Judges will use the time freed up where Substantive (S) Hearing slots are vacated, to deal with Accelerated Possession Claims referred to them for consideration.
(e) Where the parties agree or there is no objection, the Judge to whom an Accelerated Possession Claim has been referred for consideration may direct that a Review (R) Date be listed to enable the Defendant to receive duty scheme advice and assistance, and also (where appropriate) to allow mediation/independent facilitated negotiation under the proposed pilot. This may be particularly appropriate in a case that is Covid-19 Case Marked by the defendant or at the direction of a Judge.

So from this it looks likely that there will be a slowdown in accelerated possession orders too. (‘Manageable frequency’).

On the facilitated negotiation/mediation pilot, the Arrangements say:

Where:

(a) a defendant takes advice on the Review Date ;
(b) the duty scheme adviser forms the professional opinion that the case has a reasonable chance of being compromised but the case is too challenging to be resolved by negotiation on the Review Date itself; and
(c) the claimant and the defendant agree to participate in mediation (negotiation facilitated by an independent professional) within the next 7 days after the Review Date;
the duty scheme adviser may on the Review Date refer cases (up to a set limit from each Review Date) to a new proposed mediation pilot jointly funded by the Ministry of Housing and the Ministry of Justice .

Priority will be given to cases that are Covid-19 Case Marked or otherwise appear to be a direct consequence of the pandemic.

This is very much a ‘we’ll have to see’ kind of thing, but it does require both parties’ agreement.

Oh and ‘covid-19 marked cases’? This is partly the point of re-activation notices, but it goes beyond that:

29. Covid-19 Case Marking serves these ends:

(a) The Marking may highlight settlement suitability.
(b) Marking by the defendant will be available to claimants who have agreed as a matter of policy to give special consideration to such cases.
(c) Marking by the claimant will draw attention to cases where it is the claimant that may be in particular difficulty as a result of the pandemic.
(d) The Marking will be available to the Court to assist with listing (whether to take earlier or later), with case management and with exercising any discretion available in decision making.
(e) The Marking will assist in monitoring.

30. Any defendant or private claimant will be entitled to request that the case is Covid-19 Case Marked. The request can be made at any stage and by any means, but the defendant or private claimant will be required to provide specified information. The party making the request must inform all other parties. The request will result in the Marking unless there is an objection. If there is an objection the Court will decide, on the documents, whether the case should be Covid-19 Case Marked when the file is next before a Judge.

This goes beyond PD 55C and information on ‘covid-19 marking’ will need to be clear and available to both Claimants and Defendants at the start of a claim.

Lots to digest, and an awful lot to see how it plays out in practice. Oh and more to come by Friday:

By Friday 18 September –

The National Residential Landlords Association will publish a “Pre-Action Plan: Managing arrears and avoiding possession claims” by 18 September 2020. This sets out 9 “golden rules” and emphasises that “in unprecedented times … it is incumbent on tenants and landlords to engage with each other, trying all available avenues to reach an agreement before seeking repossession through the courts.” It will also set out 5 steps to take before notice is issued (including under s21 and s8, ground 8).

The Ministry of Housing will publish four sets of Guidance for private landlords, social housing landlords, tenants of private landlords and tenants of social housing landlords. The Guidance encourages advice, discussion and compromise, with court proceedings as a last resort.

HMCTS will publish guidance, with a particular emphasis on the specific availability of advice and the importance of exploring settlement, as follows:

• • within notices of Review Date and Substantive Hearing Date (see below);
  • within “key points” leaflets for claimants and defendants respectively.

So lots more to look forward to, golden rules and all.

Update 17 Sept 2020 – the Listing priorities and the ‘Overall Arrangements have now been published by the Master of the Rolls. But intriguingly in comparison with the ‘final for distribution’ version of 14 September above, there is no mention of the facilitated negotiation/mediation pilot. This is also interesting because in the now published NRLA ‘Golden Rules’ at number 8 is ‘mediate’.