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Coronavirus: Practice Direction 55C – temporary provision in relation to possession proceedings

Temporary provision in relation to possession proceedings

In response to the coronavirus pandemic, CPR 55.29 was introduced to impose a stay upon possession proceedings and any enforcement action until 23 August 2020. Practice Direction 55C has now been published and provides for a temporary modification to CPR 55 in relation to possession proceedings once the general stay is lifted.

General

Practice Direction 55C will come into force on 23 August 2020 for an interim period ending on 28 March 2021 (1.1). The practice direction applies to both “stayed claims” brought on or before 22 August 2020 (and accordingly subject to the stay imposed by CPR 55.29) and “new claims” brought after 22 August 2020 in different ways.

Stayed claims brought before 3 August 2020

Paragraph 2.1 details that for any stayed claim brought before 3 August 2020, where a final possession order has not been made, a reactivation notice is required under paragraph 2.1 to progress the claim. For claims brought between 3 August 2020 and 22 August 2020 or stayed claims in which a final possession order has been made, a reactivation notice is not required (2.2).

Reactivation notice

2.1 Subject to paragraph 2.2, and unless the court directs otherwise, no stayed claim is to be: -

  1. listed;
  2. relisted;
  3. heard; or
  4. referred to a judge under rule 55.15,

until one of the parties files and serves a written notice (a “reactivation notice”) confirming that they wish the case to be listed, relisted, heard or referred.

The specific requirements for a reactivation notice are as follows: -

  • It must confirm that the party filing and serving it wishes the case to be listed, relisted, heard or referred (2.3(a))
  • It must set out what knowledge the party has as to the effect of the coronavirus pandemic on the defendant and their dependants (2.3(b)). This does not apply to proceedings relating to an appeal.
  • Where the reactivation notice is filed and served by the claimant and the claim is based on arrears of rent, the claimant must provide with the notice an updated rent account for the previous two years (2.4). This does not apply to proceedings relating to an appeal.
  • If case management directions were made before 23 August 2020, the reactivation notice must also be filed and served with the following (5.1): -
    1. a copy of the last directions order together with new dates for compliance with directions taking account of the stay before 23 August 2020; and
    2. either –
      1. a draft order setting out additional and alternative directions (including proposing a new hearing date) which are required; or
      2. a statement in writing that no new directions are required and that an existing hearing date can be met; and
  • a statement in writing whether the case is suitable for a hearing by video or audio link

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

Hearing dates

Any trial date set prior to 27 March 2020 (before the stay came into force) will be vacated and the case stayed unless a party files and serves a reactivation notice complying with the requirements set out above no less than 42 days prior to the hearing date (2.5).

Unless it directs otherwise, the court will give at least 21 days’ notice of any hearing listed or relisted in response to a reactivation notice (3.1).

The eight week period for listing a first hearing that is provided for under CPR 55.5 has been removed so that there is no time restraint for the court to list a first hearing of a possession claim (4.1).

What if the requirements for a reactivation notice are not complied with?

If a reactivation notice is not filed and served in accordance with the requirements set out above before 29 January 2021 the claim will be automatically stayed (2.6 and 5.3).

Any stay imposed as a result of a failure to correctly file and serve a reactivation notice is not a sanction for a breach. Accordingly, any subsequent application to lift the stay will not be an application for relief from sanction and will not be required to meet the conditions set out under CPR 3.9 (2.7 and 5.4)

New claims and stayed claims brought on or after 3 August 2020

In any claim brought on or after the 3 August 2020, whether new or stayed, the claimant is required to comply with the following requirements: -

  • Serve on the defendant 14 days prior to the hearing and bring to the hearing two copies of a notice setting out what knowledge they have as to the effect of the coronavirus pandemic on the defendant and their dependants (6.1 (a)(ii) and (b)).
  • In claims to which the Pre-Action Protocol for Possession Claims by Social Landlord is applicable, the claimant must bring to the hearing two copies of a notice confirming that they have complied with the Pre-Action Protocol and detailing how they have done so.
  • In claims to which Section II of Part 55 applies (Accelerated Possession Claims) 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 (6.2)

Points to note

Effect of the coronavirus pandemic on the defendant and their dependants

  • There is a requirement in all claims for possession, whether new or stayed, for the claimant set out to the court what knowledge they have as to the effect of the coronavirus pandemic on the defendant and their dependants.
  • The practice direction does not impose any requirement for investigations to be performed. Accordingly, it could potentially be sufficient for a party to detail that they have “no knowledge” of the impact of the coronavirus pandemic upon the defendant and their dependants.
  • Where the information is not provided, judges will have the ability to adjourn proceedings.

Section 21 “no-fault” and ground 8 arrears claims

  • The practice direction does not grant any discretion to the court to refuse to grant possession in relation to possession proceedings brought in section 21 or ground 8 claims.
  • Accordingly, while the practice direction requires the landlord to inform the court of what knowledge they have as to the effect of the coronavirus pandemic upon the defendant and their dependants, this information will have no effect on the court granting an outright possession order in those claims.

Hearing dates

  • The practice direction has removed the requirement to list a hearing within eight weeks of the claim form to allow the court to list hearings as and when they see fit.
  • It is also noted that in relation to stayed claims where a party is requesting a hearing, a statement in writing is required to confirm that an existing hearing date can be met and whether the case is suitable for a hearing by video or audio link. This provides the court with further information as to how and when the hearing can take place.

Stayed claims/new claims

  • The practice direction differentiates between “stayed claims” brought on or before 22 August 2020 and “new claims” brought after 22 August 2020 defined at paragraph 1.3.
  • The practice direction then differentiates between “stayed claims” brought before and after 3 August 2020, effectively treating all claims brought after 3 August 2020 as a “new claim”.
  • Accordingly, those issuing possession proceedings between 3 August 2020 and 22 August 2020 will be required to comply with the requirements and include specified information in relation to a practice direction that has not yet come into force.

Further guidance

  • Further guidance is expected to be published to encourage landlords and tenants to work together and to encourage landlords, wherever possible, not to pursue non-priority cases through the court.
  • High Court bailiffs will also be required to provide notice of the eviction date to the tenant. The notice will include information about how the tenant can apply to suspend the eviction and where to go to for advice.

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