Reactivation of possession claims post stay

We finally have some detail about what will happen after the end of the possession stay/evictions ban on 23 August 2020. 

You may first want to listen to our 20-minute possession podcast in addition to the information below which was published shortly afterwards.

The full text of a new practice direction 55C was published on 21 July. The PD Update is viewable online. It comes into force on 23 August 2020 when the stay ends.

Timescales for listing

The 8-week listing rule (possession cases must be listed for hearing within 8 weeks of issue) is temporarily suspended until 28 March 2021. No doubt this is simply to help courts tackle the backlog over time. (see para 4.1)

For cases issued and stayed before 3 August 2020

A reactivation notice is required. The exception is claims where a final possession order has been made – i.e. where you are just waiting to apply for a warrant. If therefore you have an SPO or outright possession order made already which has been breached, then subject to compliance with your policies, you can proceed to apply for a warrant after 23 August 2020.

If you do not or simply forget to file and serve a reactivation notice by 29 January 2021 then the case will be automatically stayed. You can, however, apply to lift that stay – it is not treated as a sanction. If therefore a tenant is meeting the terms of a possession order and no action is required then you do not need to do anything now. If you later need to take enforcement action after 29 01 2021 you must remember to apply to lift the automatic stay before doing anything else.

The content of a reactivation notice is set out at para 2.3 of the PD – it must confirm:

• the party filing and serving it wishes the case to be (re)listed
• set out what knowledge the landlord has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.(NB this does not apply if the case is an appeal of a possession order)

Various things must also be served with a reactivation notice:

• a rent account for the last 2 years must also be served if the claim is based on rent arrears (see para 2.4  - again does not apply if it is an appeal of a possession order)

and if case management directions had been made before the stay then:

• a copy of the last directions together with new proposed dates is required with a draft order OR a statement that no new directions are required and any existing hearing date can be met. (see para 5.1) and
• a statement whether the case is suitable for hearing by video or audio link (see para 5.1(c))

If the defendant does not agree with the position on directions then they must file and serve a notice in response within 14 days of the reactivation notice.

Silence on how this works with PCOL cases!

For cases issued after 3 August and stayed or issued after 23 August (see para 6.1)

No reactivation notice is required. There is however a requirement to serve a notice (no name for it) demonstrating:

• the landlord’s compliance with the pre action protocol (at 6.1)
• what knowledge the landlord has about the effect of the pandemic on the tenant and their dependants

That must be served 14 days before the hearing and the landlord must bring 2 copies to the hearing.

All new accelerated possession claims (see para 6.2 and 1.7))

• The Claimant must file with the claim form, for the court to serve with the claim form, a notice setting out what knowledge the landlord has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.

PD 55C does not require that the notices referred to above need a statement of truth to be added. A template has not been and will not be produced due to the temporary and emergency nature of these provisions. It seems a simple word document template setting out the court heading (parties names and claim no) and listing the required information will suffice.  

Existing possession trial dates already fixed for after 23 August?

A trial date set before the stay came into force on 27 March 2020 is vacated and the claim stayed unless a reactivation notice, updated rent account (if an arrears case) and updated draft directions or a notice confirming none needed and the trial date can proceed are filed and served not less than 42 days before the trial date.

Priority cases?

There had been a rumour that the court would relist cases by priority type (e.g. ASB or extreme rent arrears) and some senior judges have already made orders asking for this type of information. However, that is not a requirement of the new PD. Unless then local judges ask for this information (and if they do it is arguable whether they can, in fact, take this into consideration) - the only information you are asked to provide is as above (about the tenant’s health and circumstances and the arrears). No one type of case will now get priority. Neither does any type of landlord – social or private sector.

Abolishing s21 notice and hearings out of hours or weekends?

This may not be the end re s21 notices and ASTs – the Government may separately bring forward legislation to abolish them temporarily or permanently as Shelter and the London mayor are urging/campaigning.

Equally the court listing out of hours hearings as per the court service reopening plan (see our earlier e-briefing) is still a possibility - that is one for each court’s senior judge and the local court users as it does not require any change to the court rules or legislation.

It seems we should expect most possession hearings to be in person rather than virtual hearings unless and until solicitors are instructed by a tenant.

NSPs and s21 notices – notice period

Just a reminder the requirement to give 3 months’ notice period continues until the 30 September 2020. That is a requirement of the Coronavirus Act 2020 so is not affected by changes to the court rules.

For more information

Contact Helen Tucker.