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As outlined in our previous e-briefings and our two possession podcasts (links below), we have been waiting for this key guidance from the possession working group. Published just a few days before the possession stay expires on 20 September 2020, the working group has consulted with representatives for landlords and tenants, the Court service, the Judiciary, the advice sector and the Legal Aid Agency, amongst others.
Headlines
The details…
Compromise?
The premise is that an existing stayed case, or a new possession case, should not be revived or started “without careful efforts to reach compromise”. Ensure you can demonstrate what efforts you have made. That may of course be more likely in a case involving rent arrears or condition of property, rather than in a case involving fraud or serious ASB or unlawful occupation etc.
New reactivation notice template
In stayed cases which were brought before 3 August 2020 remember that in order to get them moving again, a reactivation notice is required. A template reactivation notice has now been published and can be found here.
Although we and many landlords may have already designed their own template reactivation notice, we suggest that you now use the Government template to avoid any queries about content, as judges will get used to looking at the same format. It is not however a prescribed form.
Court changes
Information is given about how the courts will be operating and staffing possession hearings and reference is made to special preparation and training being provided to all judges.
There will be a new facility for Covid-19 case marking where the court file will be marked to highlight a case that is claimed to be a direct consequence of Covid-19. A Defendant or a private claimant, (so not a social landlord organisation), is entitled to request a case be Covid-19 marked by providing information such as the particular hardship the party has faced, whether they have been furloughed etc.
Listing of cases
The court will not fix a date when it issues the claim form, whether issuing on paper or by PCOL. There will be no more possession block lists. The earliest possession date will be 21 days after a claim is reactivated.
There is now a two-stage process. Stayed and new cases will proceed with a review hearing, called an R hearing, and then where necessary a substantive hearing called an S hearing.
The mediation pilot
The mediation proposed pilot is covered at paragraphs 55-60 and applies where:
The duty scheme advisor can then refer cases to the new mediation pilot which is funded jointly by the Ministry of Housing and the Ministry of Justice.
The pilot is volume limited and only a set limit of cases can be referred from each review date listing, so if there are too many cases which are appropriate for mediation listed for review on the same day, then the quota could have been “used up” before it gets to your case.
Priority will be given to cases that are Covid-19 case marked, or otherwise appear to be a “direct consequence of the pandemic”. The independent professional mediator is, in fact, going to be a duty scheme advisor (not providing the particular duty scheme contract for that court) who will have undergone a “short bespoke online training course in mediation principles and technique”.
This does not therefore open up the opportunity to use existing qualified mediators. All the mediators will therefore be duty scheme advisors who are drawn from legal aid housing firms or advice agencies who generally advise tenants.
In rent arrears cases, duty scheme advisors are very helpful at helping tenants e.g. to access benefits advice etc and so we expect mediation could be helpful. Note of course that both parties have to agree to enter mediation, so in for example an ASB case, that may be considered by the landlord to be inappropriate due to the conduct of the defendant.
The substantive or S hearing date
The S hearing requires all parties to attend for a 15-minute hearing and the court will then either decide the case or give directions. Paragraph 64 warns that the question of adjournment will be considered without the need for any application to adjourn in any case, where there is no sign that advice has yet been made available to the defendant and the consequences of the order may be “serious in the context of the pandemic”.
There is a list of approaching milestones given at the end at page 13. An illustrative timetable for a claim is also found at page 14. As the requirement to list a hearing within 8 weeks of issue has now gone, generally, we expect a first hearing to be listed within about 3 months of issue. Note that priority cases will be listed first.
Priority Cases
This is the part of the guidance we have been waiting for as it is not covered in any of the existing changes to the Court Rules. The following cases will be listed with priority:
It notes that “other circumstances may warrant priority”. If therefore your case is urgent but does not fall within the above, make the case that it still warrants priority and falls within “other circumstances”.
Subject to the above list, priority will otherwise be given to claims issued before the stay commenced in March 2020 which have been stayed.
Paragraph 45 makes clear that the court will take into account, not only the impact on the claimant and defendant in the individual case but also the effect of prioritising a case on other cases.
Accelerated possession cases for assured shorthold tenancies
Accelerated possession claims issued before 3 August 2020 also require a reactivation notice. These will generally still be heard on paper only, although they can be listed for a review R date where the parties agree or there is no objection. See paragraphs 66-68.
Incidentally, after a few weeks with no N5B claim form available online for England, this has now been updated and can be found here. The defence form N11B sent to tenants has also been updated here.
For more information
If you need to catch up do see our previous e-briefings on all of the possession changes about notices and reactivation notices at:
Eviction ban to end; weekend courts to catch up - 3 July 2020
Reactivation of possession claims post stay - 22 July 2020
Reactivation notices for possession claims that have been stayed - 3 August 2020
Further stay of possession proceedings until 20 September 2020 - 21 August 2020
Possession notices - all change once more! - 2 September 2020
And our two podcasts at:
Possession Proceedings - 20 July 2020
Possession Update - 3 September 2020
Contact Helen Tucker or any other member of the housing litigation team for more information.
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