Possession Proceedings Update During Covid-19

14 May 2021 | Alex McMahon

On 04th May 2020 I posted a blog about tenants’ rights during the pandemic. Since then there have been a number of significant developments as we have all adapted our daily lives to adjust to the threat posed by the pandemic. For renters and landlords this has been a difficult period, as many have struggled to cover their rent and have fallen into arrears.

The initial response

At the start of the outbreak the Government announced an intention to protect tenants during the coronavirus pandemic. They did this by implementing the following measures:

  • All possession hearings (i.e. cases that had been issued and were before the Court) were ‘stayed’ for 90 days from 26th March 2020;
  • New notices served from 26th March 2020 have to specify a minimum notice period of 3 months from the date the notice is served. This will remain the case until 30th September 2020. The prescribed notices have been amended to reflect this change.

The Court issued a new ‘Practice Direction 51Z’ which suspended all ongoing housing possession actions. No hearing could progress to a stage where a tenant/occupant could be evicted. This applied to occupation in the private and public sector, including licenses (but not all licences) and mortgagee cases. As noted, the measures were put in place for an initial period of 90 days, up to the end of June 2020.

There have been two key legal cases in the Court of Appeal in response to these changes. In Arkin v Marshall (2020) EWCA Civ 620 the Court was asked to decide (a) whether the stay was lawful, and if so (b) whether in the absence of agreement between the parties, judges can lift the stay in individual cases thereby requiring the parties to comply with case management directions. The Court of Appeal decided:

  • The stay is lawful.
  • Parties could (and should, if possible) continue to comply with directions during the stay, and there was no reason why parties should not be able to voluntarily agree changes to directions during the stay and thereafter look to adjust any post-stay case management timetable. Such agreements could still be approved by the Court in an order during the stay, and this would not amount to a lifting of the stay.
  • Non-compliance with directions would still be a default by the non-compliant party, but no application for enforcement could be made during the stay. The Court may consider the circumstances of the default once the stay is lifted, for instance in determining whether any sanctions are appropriate.
  • The Courts retained the power to the lift the stay under CPR 3.1, but it was difficult to see any circumstances where this would be appropriate given the purpose of the stay.

On 27th May 2020 the Court of Appeal was asked to consider in London Borough of Hackney v Okoro (2020) EWCA Civ 681 the issue of whether appeals of possession orders or Part 55 proceedings are also caught by the stay. It decided that they were. Where possession proceedings were initially “brought” under CPR Part 55, and are not caught by one of the exceptions set out in CPR PD 51Z Para.2A, then the automatic stay imposed by the practice direction takes effect. This applies to first instance proceedings, as well as to appeals and other applications to set aside possession orders. The Court decided, however, that PD51Z has no effect on an ongoing appeal to the Supreme Court.

Extension to the stay

On 05th June 2020 the Government announced an extension to the stay for a further period of 2 months, due to end on 23rd August 2020. They did this by amending the Civil Procedure Rules to include a new rule, Rule 55.29, which deals expressly with the extension to the stay to possession proceedings during the coronavirus. This means that any new claims sent to the Court before 23rd August 2020 will by immediately stayed, and will not be able to continue until after the stay has ended.

The Government has announced that there will be no further extension to the stay, so this will end on 23rd August 2020.

What happens after 23rd August 2020?

A new Practice Direction 55C will come into force on 23rd August 2020 to give new rules relating to possession claims that have been stayed because of the pandemic. The new Practice Direction supplements Part 55 of the CPR. The amendments are only a temporary modification of the rules and will last until 28th March 2021.

For claims started before 3rd August 2020 a ‘reactivation notice’ must be filed by one of the parties in order for the possession claim to resume. There are separate requirements for claims started on or after 03rd August 2020. The reactivation notice is intended to provide the Court with the necessary information to case manage the case – and the party filing this will ask for the case to be listed, relisted, heard or referred to a judge. Where no reactivation notice is filed, the Court will not take any action – no new hearings will be listed and no existing hearings will go ahead. The reactivation notice does not need to be in any prescribed form but does need to set out certain information, including (if filed by the Claimant – which in reality is likely to be the majority of the cases) what is known about the effect of the pandemic on the Defendant and their dependants.

The requirement to file a reactivation notice also applies to claims where case management directions were made prior to 23rd August 2020, or where a trial date was set prior to 27thMarch 2020. There are additional requirements as to what should be included with the reactivation notice in these cases.

If no reactivation notice if filed by 4pm on 29th January 2021 the claim is stayed automatically.

For claims started on or after 03rd August 2020 the rules are different, and in these cases the Claimant must inform the Court as part of the claim what they know about the impact of the pandemic on the Defendant and their dependants. Claimants are required to file a notice containing this information with the claim form, and must bring to the hearing two copies of a notice setting this information out (such notice must also be served on the Defendant not less than 14 days prior to the hearing). Social landlords will also need to serve notice confirming whether (and how) they have complied with the Pre-Action Protocol for Possession Claims by Social Landlords, and must bring two copies of the notice to the hearing.

What does this mean for me?

The Courts will undoubtedly be inundated in the coming weeks and months, and it remains to be seen how quickly they will be able to process requests to resume proceedings. It seems very unlikely that business will be able to resume to pre-lockdown levels, and the way in which possession claims are processed and heard (i.e. block lists of 5 or 10 minute hearings) will have to change.

If you are unsure about how these changes affect your particular case it is sensible to seek advice from a solicitor. If you have received a notice threatening possession from your landlord, or a reactivation notice for an existing claim for possession, or any order or notice from the Court, you should take advice at an early stage.

We have seen a rise in enquiries from individuals who have been unlawfully evicted from their homes by their landlords. If you think this may have happened to you, you should take advice quickly to see if you can bring a claim (which in some cases could include an injunction to be allowed back into your home).

As possession claims resume, there will be an increased pressure on already overburdened local authorities to accommodate and help individuals and families faced with homelessness. This pressure is likely to mean that unlawful decisions will be made. Legal aid is available for housing possession matters, unlawful evictions and homelessness, subject to a means and merits assessment. Osbornes has a specialist team of solicitors who will be able to advise you in your case under our legal aid housing contract.

To speak with Alex McMahon, Associate Solicitor in the Housing and Social Care team, or another member of the team please contact us 020 7485 8811 or complete an online enquiry form.

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