A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Like all of us, the Court Service and judiciary have been grappling with how to respond to the rapidly changing situation here in the UK in the face of the Covid-19 outbreak.
In recognising its vital role in administering justice, the Court tried to adopt a ‘business-as-usual’ approach for as long as possible but now recognises that this simply isn’t possible.
We summarise here the current approach being taken by the civil courts, but of course, things are changing daily. We also offer practical suggestions on what to do about upcoming hearings, trials or hearings that have already been adjourned.
The court guidance, which is updated periodically, can be found here – Coronavirus (COVID-19): courts and tribunals planning and preparation.
- Hearings that can, should proceed remotely. This means by telephone. This is already permitted by the court rules in most cases. However, the court recognises that:
- unrepresented parties may have difficulty with telephone hearings and that sensitivity will be required.
- it is very unlikely that a telephone hearing would work if a litigant in person is chaotic because of alcohol or drug use, has learning disabilities, has significant mental health issues or has other needs or disabilities that would militate against telephone hearings.
- Local courts should be establishing priorities when it comes to listing – we could expect anti-social behaviour (ASB) to be within those priorities and indeed the guidance does make reference to emergency injunctions, so there is already some recognition of this.
- Settlement is being encouraged to try and reduce the call on court time.
- Trials. The official message is that the court rules allow evidence to be received remotely. However, the courts acknowledge that it may be difficult to conduct trials and final hearings in this way particularly where there will be lay witnesses giving evidence. Courts are being told to make individual decisions on trials, we fully expect that the courts will not be properly set up for such trials and therefore we will expect most if not all trials to be adjourned to a later date in a few months.
- The courts are being reminded to be sensitive to other priorities for people’s time, such as those in critical jobs (e.g. NHS, Police).
- Blocklisted possession claims are being adjourned.
What about cases involving serious ASB and nuisance?
Our advice on practical steps
- If you know the tenant is unrepresented and you have not already done so, we suggest that as soon as possible you write to them and provide clear signposting of where they can get legal assistance – phone numbers for local Citizens Advice or housing lawyers. Ask for their telephone number. You can then let the court know you have done this in any communication.
- If you have an upcoming hearing, seek permission for the hearing to go ahead as a telephone hearing, even where the tenant is not represented. If the tenant is represented, you should be able to agree this with their solicitor before you contact the court. Note, if you are the Claimant then it will be your responsibility to set up the hearing. If you require assistance in setting this up and dealing with the hearing please do contact us.
- If you have had a hearing adjourned of the court’s own motion, write to the court pointing out that this is an ASB matter and ask for an urgent relisting as a telephone hearing. If you have telephone details for the tenant, provide this within your letter. If you don’t have them, seek to obtain them if at all possible.
- It is highly unlikely that the court will allow ASB trials to go ahead, despite guidance saying that they can potentially proceed remotely. The challenges of hearing contested witness evidence remotely is too great, let alone providing access to justice for litigants in person. If you have any trials coming up we strongly suggest that you try and settle them if at all possible perhaps a suspended possession order (SPO), Undertaking or an adjournment on terms. The courts are actively encouraging this because the delays in getting the matter back into court will be very long and costly.
Issuing emergency injunctions
There has been no specific comment on injunctions or committals at the moment.
All landlords should think carefully about whether to apply for emergency injunctions. The police should be contacted in relation to individual incidents to use any criminal powers instead. Be aware that even if an injunction were ordered, it is extremely unlikely that a power of arrest breach will be able to be heard by the County Court at short notice and that a court will agree to deal with a committal breach hearing as a telephone hearing.
Where it really is necessary to seek an emergency injunction, we suggest:
- phoning your local court, as practices may vary from court to court, explaining that you want to make an emergency application;
- asking to email the papers for issue; and
- requesting a telephone hearing without notice.
We hope the courts will be flexible with such requests in the most urgent and serious cases.
In relation to injunction paperwork please ensure that witness statements are kept short and limited to the incidents. We also suggest that exhibits are much reduced, only attach and refer to those that are necessary and avoid preparing particulars of claim.
Are evictions going to be banned?
Emergency legislation is currently going through Parliament. We have been provided with scant details of the draft provisions relating to possessions and evictions. However, this does not, at present, appear to include any blanket ban on evictions being executed or new possession claims being issued – which is what the Government had suggested it would do. Instead, the current proposals seek to extend any notice period for a S21 Notice, Notice to Quit or Notice of Seeking Possession to three months. This would only apply to any notice served after the Act comes into force (possible this Friday, 27 March) until 30 September 2020. We will continue to monitor the situation for any update or further information.
As we have said, things are changing daily. If you would like any further advice please contact Rebecca Sembuuze or any of the other housing litigators on 0121 212 7400.
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