29/10/2020

Assortimenti – pre action protocols and stay of eviction hearings

A couple of notes of things of interest and concern.

Firstly.

The Civil Justice Council is currently conducting a review of the Pre-action protocols. As part of this review we are seeking preliminary views from interested parties on the purpose and operation of PAPs and what, if any, reforms are needed.

We would be grateful if you took the time to complete this questionnaire. Please note there will be an opportunity to make detailed submissions to the CJC including on any interim report issued by the Council. This survey is designed as a preliminary fact-finding exercise, to gauge the views of litigants, lawyers and the judiciary about the utility and fairness of PAPs.

The survey can be found here.

Secondly, I’ve received a message from a reader enclosing a (suitably anonymised) email from a county court. Which county court shall remain nameless, but it is within the South East. The email was confirming a hearing for an application to stay an imminent warrant of eviction, but went on to say”

Please note that, given the additional notice parties are receiving both from the bailiff and from the additional notice to quit, District Judge (redacted) has stated that if an application is received at short notice and the court does not have space to accommodate it then it may not get heard and the eviction proceed. Therefore please advise your colleagues to arrange to have the application submitted as soon s possible in the future. The application can always be refined later once a hearing has been arranged.

Where to begin?! County court bailiffs used to give about 4 weeks notice of date of eviction previously anyway, and the notice period for a notice seeking possession (not Notice to Quit) is irrelevant to the timeliness of a stay application.

But the big point – the really big point – is that an application for a stay of warrant can be lawfully made at any point up to the execution of the warrant. If the application is issued by the court, then the applicant has a right to have that application heard and decided, before the warrant is executed.

We all know the immense pressures on county court administration and judges at the moment, but court administration cannot be a reason to refuse to hear a validly and lawfully made application.

If a hearing cannot be arranged before the time for the execution of the warrant, the correct course of action has to be to stay the warrant pending a hearing.

There are a whole plethora of reasons why a stay application may be made shortly before the warrant, many good reasons, some less so, but I cannot accept that it is for an individual county court to determine that its own administrative issues take precedence over the applicant’s rights.

[Update: The DCJ covering the area concerned has been in contact, and will be talking to the court concerned to find out how this came about, and to make clear that stay applications before warrant is executed should either be heard urgently, or if not possible, the warrant stayed pending hearing. I thoroughly heartened by the very swift response. ]

Finally, notes on Z & Anor, R (on the application of) v Hackney London Borough Council & Anor; Gateway Housing Association v Personal Representatives of Ali & Anor; Royal Borough of Kingston-Upon-Thames v Moss and other cases will be coming soon. It is just that I have been really, really, really busy, and in need of sleep.

 

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.

8 Comments

  1. Fereydoon Fazl-Lavassani

    Thank you Giles for all the hard work and informative posts.

    Reply
    • Richard Flavin

      I second that sentiment. You are much appreciated by many people Giles.

      Reply
    • Paul Ellis

      Im not sure if anyone else has had experience of these new and waste of everyones time ‘Review Hearings’, but each of ours no one from the court has made the call to us for the review! this isn’t surprising given the mess and ill thought out processes over the last few months. If anyone has experienced this, what are we to do if the court cant even be bothered to conduct these reviews?

      Reply
      • Giles Peaker

        There is no review hearing, which is why the court didn’t call you for one.

        Reply
  2. HR

    Prior to the restart of possession proceedings in September, we were told in a court duty users meeting that the court expected an early application to suspend a warrant and that these had to be made in person, as they were pre-pandemic. They were not prepared to accept emailed applications, even from legal representatives with a fee account, because they didn’t want the applications at the last minute.

    Reply
  3. angularmeerkat

    I notice there is a social landlord PAP but none for private. Do you think that will continue in view of the backlog ?

    Reply
  4. alan armstrong

    Not a Housing Possession matter, but I have had experience of the Court administration overruling the Law. The Environmental Protection Act 1990 allows in certain circumstances for a daily penalty to be levied until compliance with the Abatement Notice, but the Court wouldn’t apply one because their computer system was unable to take account of such things. The Magistrates levied a much higher fine that we expected, possibly to take into account the daily penalty they expected the guilty party to accrue. Unfortunately, the nuisance was never properly abated and so we ended up having to reserve Notices and do it all again.

    Reply
  5. Ben Reeve-Lewis

    I have a long list of anecdotes where judges ignored the law completely Alan, in one case a social housing officer told me of the suspended possession order granted against her tenant on rent arrears of £11,000 and in a mortgage case I defended, where we were a dead duck in procedural terms, the judge physically threw the written skeleton argument in the lawyer’s face and refused to hear the argument and dont get me started on Judge Zimmel’s stopwatch

    Reply

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