Possession proceedings after the stay

On 21 September 2020 the stay will be lifted and as housing practitioners we will enter a brave new world of possession proceedings, with an ever changing procedural landscape.

On Thursday 24 September 2020, the Doughty Street Housing and Social Welfare team will provide a webinar on new and reactivated possession cases, discussing the impact of Covid-19 on potential defences, the new 'Overall Arrangements' governing listings and PD 55C, with a particular focus on potential tactics for Defendants. Do sign up here to join us.

In the meantime, here are the main procedural headlines (up to date as at 20 September 2020):

Claims brought before 3 August - Reactivation notices

• For possession claims that were brought before 3 August 2020 and stayed, one of the parties will have to file and serve a 'reactivation notice' before the case will be listed or heard. There are pro forma reactivation notices, one for Claimants and one for Defendants, available here.
• The requirement to file a reactivation notice does not, however, apply where a 'final possession order' had already been made. It remains to be seen what a 'final possession order' means. Is it an order that is not being appealed? Or is it any possession order that is not suspended or otherwise conditional? The position is, at present, unclear.
• Reactivation notices should not have been filed already, but if a party has filed a reactivation notice before the stay was lifted, the Courts are expected to 'put it to one side' to be dealt with on or after 21 September 2020.
• The general rule is that the court must give at least 21 days' notice to the parties of any hearing listed or re-listed after a reactivation notice is filed.

Claims brought on or after 3 August - Covid-19 notices

• For all claims brought on or after 3 August 2020, the Claimant must bring to the hearing two copies of a notice which, amongst other things, sets out the knowledge the Claimant has of the effect of the coronavirus pandemic on the Defendant and their dependents. 
• There is no pro forma notice currently available for this purpose, but the wording used in the reactivation notices could provide a useful template. 
• As commentators have observed, there is no associated legal duty to make inquiries as to the effect of the pandemic on tenants and no apparent sanction for failing to provide any information. Nevertheless, it may be that a court will adjourn a case and direct inquiries be made if the notice provided contains no useful information.

Listing

• The Overall Arrangements set out the listing priorities for courts, including prioritising ASB cases, cases with 'extreme alleged rent arrears accrued', cases involving squatters or illegal occupiers, domestic violence cases, cases with fraud or deception and so forth. There is an indication that further prioritisation guidance may be published - so watch this space.
• All cases (stayed and new) will ordinarily proceed to a Review (the 'R-date') and then, where necessary, a Substantive hearing (the 'S-hearing'). 
• Unless there are existing case management directions providing otherwise, the first date to be listed will be the R-date. The S-hearing should be listed 28 days after the R-date.
• The R-date is not a hearing and the parties are not to attend court. It is, instead, an opportunity for the Defendant to obtain free duty scheme advice remotely. It is also an opportunity, where possible, for the parties to reach an agreement. A judge will be available to the parties to make orders if the parties resolve the case or agree directions.
• If the case is not resolved on the R-date, the judge will consider the bundle provided by the Claimant and the court file. The Claimant is required, 14 days before the R-date, to provide the Court with an electronic bundle. If the documents are not in order, the judge may dismiss the claim or give directions.
• Where an S-hearing is listed, all parties must attend. The presumption is that S-hearings will be in person.
• S-hearings will be for 15 minutes and the Court can either decide the claim or give further case management directions. The S-hearing is essentially the same as the first possession hearing practitioners are used to, except that it is longer.
• There is a hint in the wording of the Overall Arrangements that courts may be more reluctant to adjourn proceedings than they were pre-pandemic and may try to decide claims at the first S-hearing whenever possible. I will discuss this concerning feature of the Overall Arrangements further, and potential tactics to resist premature decisions, at the webinar on Thursday.
  
  [Note - a different procedure applies to Accelerated Possession claims].

Evictions

• At least 14 days' notice of eviction is now required in both the County Court and High Court.
• No enforcement of possession orders will proceed where local lockdown measures are in place to protect public health or, other than in the most serious cases, over the Christmas period.

Facilitated negotiation

For those of you who have kept abreast of the constant updates in this area, you may have noticed that the final version of the Overall Arrangements no longer contains any mention of 'Facilitated Negotiation', despite this appearing in an earlier version which became publicly available. My understanding is that the Facilitated Negotiation pilot, which will seek to encourage parties to settle matters between the R-date and prior to the S-hearing, is still going ahead. We will, however, have to wait for more fully developed documentation setting out this scheme to be finalised and published. 

The above is a whistle-stop tour of the new procedural arrangements. 

Do join the DSC Housing Team on Thursday 24 September 2020 for a more thorough-going discussion of what this all means in practice for Defendant housing practitioners.