Possession proceedings

The Stay

Practice Direction 51Z originally stayed all possession proceedings, residential and commercial, under Part 55 (except against unnamed trespassers), for a period of 90 days from 27 March 2020.

The stay was then extended until 23 August, as set out in CPR 55.29, which replaced PD51Z.

The stay was then further extended to 20 September 2020 by the Civil Procedure (Amendment No5) (Coronavirus) Rules 2020, which amended CPR 55.29 with the new date. (see below as amended).

 

Stay of possession proceedings, coronavirus

55.29(1) Subject to paragraph (2), all possession proceedings brought under this Part and all enforcement proceedings by way of writ or warrant of possession that are—

(a) stayed immediately prior to this rule coming into force; or

(b) brought after this rule comes into force and on or before 19 September 2020,

are stayed until 20 September 2020.

(2) Paragraph (1) does not apply to—

(a) a claim against trespassers to which rule 55.6 applies;

(b) proceedings under Section III of this Part;

(c) an application for case management directions that are agreed by all the parties; or

(d) a claim for injunctive relief.

(3) Paragraph (1) does not prevent the bringing of a claim notwithstanding that it may be stayed.

(4) For the purposes of the application of any rule to any proceedings that are stayed by paragraph (1)—

(a) time does not run; and

(b) no notice is required to be given by the court.

The stay imposed by PD51Z (and no doubt under 55.29) also extended to any possession claim, even where that claim was not begun under CPR Part 55 (ie under Part 7 or 8, or by way of Part 20 counterclaim): TFS Ltd v BMG (Ashford) Ltd [2020] EWCA Civ 833.

Appeals from orders for possession brought under CPR Part 55 were also subject to the stay imposed by PD 51Z. London Borough of Hackney v Okoro [2020] EWCA Civ 68)

The stay was challenged in Arkin v Marshall [2020] EWCA Civ 620 but the Court of Appeal held that it was not ultra vires. It also held that:Lifting the stay - complying with directions

  • The court has the theoretical power to lift the stay but this might only occur in the most exceptional circumstances such as perhaps where the stay itself operated in such a way as to defeat the purposes of PD 51Z and endanger public health.
  • Orders for directions cannot be enforced whilst the stay is in force.

The decision was made in relation to PD51Z but no doubt also applies to CPR 55.29 (see this article by Cecily Crampin and Imogen Doods of Falcon Chambers.

After the stay

Introduction

Possession proceedings that were subject to the stay remain stayed unless the parties do something about it.  To bring the case back to life either one of them will need to send to the court and serve on the other party a "re-activation notice".

The rules dealing with the procedure are in PD55C.  This procedure is (currently) only intended to last until 28 March 2021 (para 1.1).

These rules are supplemented by non-statutory arrangements for dealing with the cases which are explained in this document: Overall Arrangements for Possession Proceedings.

Guidance notes and forms

Understanding the possession action process: guidance for landlords and tenants

Ministry of Housing, Communites and Local Government Guide

The Government has published a number of guidance notes for landlords and tenants in the private and social rented sectors to explain the possession action process in the county courts in England and Wales.  These deal with both the notices required in the various different situations and the possession procedure. Practitioners, as well as members of the public, should find them extremelly helpful.

Property possession: information for claimants and defendants

This link contains the various forms and practice notes that will be sent to the parties during the process.

Re-activation notices

It will be necessary to file with the court and serve on the other party a "re-activation notice" in all possession claims except in the following two situations.  A claimant or a defendant may serve a re-activation notice.  The two exceptions are as follows:

  • It is not necessary to use a re-activation notice where the claim was commenced on or after 3 August 2020.  This random date was chosen as being a reasonable period prior to what was originally intended to be the lifting of the stay on 24 August (subsequently 20 September). It was felt that it would be pointless and onerous to require a landlord to serve a re-activation notice when the proceedings had only recently been commenced.
  • Nor is it necessary to serve a re-activation notice where a possession order has been made (PD55C, para 2).  It is therefore possible to enforce an order already made without a re-activation notice.  (However, landlords should be aware of the new requirement to give notice of an eviction to the tenant, which is now contained in rule 83.8A (Civil Procedure (Amendment No 3) Rules 2020 as amended by the No5 Rules - see further below).

The purpose of the re-activation notice is to let the court know that the party serving it wants the case to go ahead.  There may be many cases where the occupier has left or the parties have come to their own arrangement without the need for further court intervention, at least for the meantime.

If no re-activation notice is served by 4.00 p.m. on 29 January 2021 the claim will automatically be stayed (2.6).  However, the system does not want to discourage parties from allowing cases to remain dormant. The fewer cases blocking up the courts the better. Thus, any such further stay is not regarded as a sanction; so a subsequent application to lift that stay will not be regarded as an application for relief from sanctions under rule 3.9. 

5.3 If no party has complied with paragraph 5.1 by 4.00 p.m. on 29 January 2021, the claim will be automatically stayed.

5.4 A stay under paragraph 5.3 is not a sanction for breach; and an application to lift the stay is accordingly not an application for relief from sanctions under rule 3.9.

Contents of re-activation notice

The contents to be inserted in the notice are set out in paras 2.3 and 2.4. There is no prescribed form.  However, suggested forms (one for the claimant and one for the defendant) have been produced and can be found at this link.  It can be seen that the claimant form contains boxes for the following information:

  • Any knowledge the claimant has as to the effect of the pandemic on the defendant and their dependants.
  • In rent cases, details of the arrears for the last two years.
  • Information relating to directions.
  • A statement as to whether the claim is suitable for a video or audio.
  • Whether the claimant considers that the case should be given priority.

These points are picked up below.

Any possession claim with a hearing already listed requires a reactivation notice to be filed and served at least 42 days before the hearing (para 2.5).

2.5 Unless the court orders otherwise, any trial date set prior to 27 March 2020 (the date on which Practice Direction 51Z came into force) shall be vacated and the case stayed unless a party complies with the provisions of paragraphs 2.1, 2.3, 2.4 and 5.1 not less than 42 days prior to the hearing date.

Where the claim is based on non-payment of rent the Claimant must provide with the re-activation notice an updated rent account for the previous two years (2.4).  The court will be able to see clearly from that statement whether or not the defendant generally kept up to date prior to the pandemic. 

Directions

Where a re-activation notice is served see para 5. Essentially the court needs to be updated on what is now necessary for the case to proceed.  Any previous directions along with suggested new directions must be sent to the court.

5.1 In relation to a stayed claim to which paragraph 2.1 applies and in which case management directions were made before 20 September 2020, a party filing and serving a reactivation notice must file and serve with it—

(a) a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 20 September 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.

5.2 If the other parties do not agree with any of the matters advanced under paragraph 5.1(a), (b) and (c), they must file and serve a response within 14 days of service of the reactivation notice.

Pandemic information

Another feature that will apply to all cases, whether new or stayed, brought on or after 3 August 2020, discretionary or mandatory ground, is a requirment to bring to the hearing and serve on the defendant not less than 14 days prior to the hearing such information that the claimant has as to the effect of the pandemic on the defendant and their dependants (1.6 and 6.1(a)(ii)).

Social landlords must also bring to the hearing two copies of a notice showing how they have complied with thhe Pre-action Protocol, detail how they have done so and what knowledge they have as to the effect of the Coronaviurs pandemic on the defendant and their dependants (6.1).

1.6 Paragraph 6.1 of this practice direction applies to all claims, including stayed claims, brought on or after 3 August 2020.

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.

In accelerated possession claims brought on or after 3 August 2020 the claimant must file with the claim form a notice stting out what knowledge the party has as to the effect of the Coronavirus pandemic on the defendant and their dependants (6.2).

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.

It should also be noted that in England there is a new claim form (N5B) and defence (N11B) for accelerated possession claims.

Practice at the Court

What is written here is not in PD55C but is taken from the Overall Arrangements for Possession Proceedings.

The core points are set out below but practitioners should consult this document as it sets out the practical details that will be adopted in possession claims.

There will be a process called "Covid-19 Case Marking" whereby the court file will be marked to highlight any case that is or is claimed to be a direct consequence of the pandemic; and prioritisation of cases (see 29 to 31 and 43 to 45 of the Overall Arrangements).

Guidance on listing, and which cases should be given prioirty, published by the Master of the Rolls, is to be found at this link.  It lists those cases, which generally should be given priority, such as cases involving anti-social behaviour and extreme rent arrears.

Review dates

In all possession claims, whether stayed or newly issued, a date will be set for the court to carry out a review of the case.  On the Review Date there will be no attendance before the judge.  (See paragraphs 38 and 49 to 54 of the Overall Arrangements).

These Review dates are going to become a very important part of the process. 14 days before the Review Date the Claimant will be required to provide a bundle to the court (generally electronic) and a copy to the defendant (with an electronic copy in addition where the defendant is able to receive that). The claimant will also be required to confirm that they will be available on the Review Date to discuss the case.

Free legal advice will be available to the defendant on the Review date (paragraphs 46 to 48 of the Overral Arrangements).

The parties will be encouraged to negotiate and where agreement is reached the judge will be able to make the order. If there is no agreement the judge will order that a fixed hearing take place.  (See paragraphs 49 to 54 of the Overall Arrangements).

Substantive hearings

The Substantive hearing will be listed for 15 minutes.  These will generally be attended hearings at which all parties will be expected to attend. If the case can't be dealt with in that time directions will be given for further conduct of the case in the normal way. (Paras 55 to 59 of the Overall Arrangements).

On a typical possession day the Substantive hearings will be dealt with throughout the bulk of the day, with the Reviews being dealt with by the judge at the end of the day.

The first set of Review dates will start on 19 October. The first Substantive hearings will start on 16 November.

(See the Illustrative time line at the end of the Overrall Arrangements document.)

Enforcement of possession orders

Notice of eviction in all cases, whether the case is in the county court of High Court must now be given in accordance with rule 83.8A.  At least 14 days notice is now required.

It is not necessary to give notice where the order for possession is against trespassers who entered without consent (para (6)).

83.8A.(1) This rule applies to—

(a) writs of possession; and

(b) warrants of possession,

other than writs and warrants excluded by paragraph (6).

(2) Subject to paragraph (5), a notice of eviction must be delivered to the premises not less than 14 days before the writ or warrant is executed.

(3) The notice of eviction referred to in paragraph (2) must—

(a) be addressed to—

(i) all persons against whom the possession order was made; and

(ii) “any other occupiers”; and

(b) be in the form prescribed by Practice Direction 83.

(4) The notice of eviction must be delivered by—

(a) inserting it through the letter box in a sealed transparent envelope; or

(b ) if that is not practicable—

(i) attaching a copy to the main door or some other part of the land so that it is clearly visible; or

(ii) if that is not practicable, placing stakes in the land in places where they are clearly visible and attaching to each stake a copy of the notice in a sealed transparent envelope.

(5) The court may—(a) dispense with the requirement to deliver a notice of eviction; or

(b) extend or shorten the time by which a notice of eviction must be delivered,

but may not exercise its powers under sub-paragraph (b) so as to postpone the date of execution of any writ or warrant of possession beyond the last date permitted for that purpose by or under any enactment.

(6) This rule does not apply to writs or warrants of possession to enforce possession orders against trespassers, other than possession orders against persons who entered or remained on the premises with the consent of a person who, at the time consent was given, had an immediate right to possession of the premises..

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