Residential Possession Proceedings after 20 September

17th September 2020 Commercial Litigation

The Master of the Rolls has published a document entitled “Overall Arrangements for Possession Proceeding in England and Wales”. When I say published I do not mean that in the usual sense, you will have to go hunting for it (or use the link above!). However, this document sets out how the courts are going to operate after 20 September.

The first point to note is that this means that 20 September still seems to be a date which is going to happen and the courts are going to open from this point for possession cases. However, it is clear that this opening will be slow and there should be little expectation of rapid activity.

From 21 September the courts will start dealing with matters, mainly by issuing claims that have been lodged with them and not yet processed. They will also be hearing cases with case management directions setting down a hearing and hearing applications to suspend warrants. Existing cases that have been stayed will still need a reactivation notice served to restart them (which cannot be served before 20 September). There is no set form for this and you could use the example given here. So the reactivation notice process will remain the same. As these are received the courts will deal with them. The MR document seems to suggest that there is plenty of time to do this and so I suspect they are expecting there to be a slow build up of these. I am not sure that they are right about that.

There is to be guidance from the MHCLG as well as from other bodies such as the NRLA and FCA which all will emphasis efforts to settle cases before issue. It remains to be seen how seriously the courts will take this guidance and whether they will adjourn cases that have shown limited efforts to settle. The MHCLG will apparently be issuing guidance to local authorities that tenants who settle cases and agree to possession should not automatically be treated as having made themselves intentionally homeless. I cannot see this being honoured in practice on the ground and I suspect that officers will still tell people to stay in properties until the bailiff’s arrive.

Cases will be heard physically unless both parties and the court agree to virtual hearings. I do not see there being many virtual hearings. Although there are to be similar numbers of sitting days there will be fewer cases and not all courts will be sitting so there will ultimately be less availability of possession hearing slots. This will increase the backlog.

Cases can be Covid marked where the defendant or claimant seek this as the matter is affecting one or both of them due to Covid. It will be up to the judge to do this and if a case is so marked it will be given priority as appropriate.

There will now be two hearings. A Review (R) hearing and a Substantive (S) hearing. Cases will initially get an r date and the S date will be set at the time of the R hearing. R hearings will not require attendance and will be largely on the papers but the Claimant will need to provide an electronic and paper bundle to the court before the R hearing and be available to answer questions by telephone if required. The objective will be to boot out hopeless cases or cases where formalities have not been complied with and to encourage the parties to settle the case if at all possible. The S date will be like a classical possession hearing before a judge. Accelerated claims will not have R and S dates and will proceed as usual subject to the new requirements to have reactivation notices and Covid information notices.

Perhaps the most interesting, and frightening, aspect is in the suggested timelines near the end of the document. These timelines suggest that there will be no evictions before 6 October and these will only be for cases that already have a warrant and have no application outstanding to suspend or stay it. This is to allow for the new 14 day notice period for eviction being given on or after 20 September. The first R dates for new matters will not be until 19 October and the first S dates will not be until 16 November. Given that a possession order is 14 days and then a bailiff warrant might then be needed it is starting to look unlikely that there will be many evictions on new cases before the proposed stop for Christmas.

All of this will show the need for landlords to try to negotiate and also to make sure that they have their case paperwork absolutely correct. Even then nobody should get their hopes up about rapid evictions and alternatives that ensure payment of arrears in other ways should be considered. The rental sector will see a very slow return from the difficulties of Covid.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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