Possession Proceedings issued a summary of its “overall arrangements” for possession proceedings in England & Wales. Our note here aims to summarise this release, though the length of the courts’ document means this Expert Briefing is a little longer than usual.

The document begins by noting the legal system faces a combination of (a) accrued demand from the stay, (b) forthcoming major demand caused by economic consequences of the pandemic, and (c) reduced physical court capacity because of social distancing.

Consistent with FCA guidance, the courts make clear that no claim for possession should be commenced or re-started without careful efforts to reach compromise. There is a restatement of the recent new requirement that claims brought before 3 August 2020 will not be listed, relisted or referred to a Judge until a party files and serves a “Reactivation Notice” confirming that they wish the case to proceed.

Future Format of Hearings

The note confirms that claims by mortgage lenders are subject to regulatory or voluntary schemes under which, as a matter of good practice and with appropriate exceptions for priority cases, means claims are postponed to at least 30 October 2020.

The courts then go on to consider the format of future hearings. Firstly, parties will be offered a physical hearing for substantive hearings. This is subject to exceptions:

  • (a) If contingency arrangements need to be introduced
  • (b) Where the parties agree (subject to the Court) that a hearing should be by telephone or video.

Court centres will as far as possible allocate to possession proceedings the same number of courtroom/days per week as before March 2020. Where strictly necessary, the Court Service will arrange suitable additional premises. However, only court centres able to conduct hearings with social distancing will be used. Each court centre will have, guided by Public Health England and adjusting as needed, a safety and active cleaning procedure running through the day. Parties must not attend a court building where that would conflict with pandemic health guidelines applying to the party.

The preferred starting point at least for the opening months is to use full-time District Judges and Deputy District Judges who sit extensively at the particular court centre. However, 200 additional Deputy District Judges (and Property Tribunal Judges) have been assembled to assist as required.

Covid-19 Case Marked

Any defendant will be entitled to request that a case is Covid-19 Case Marked. In certain circumstances, this may lead to the case being dealt with in a different way. The request can be made at any stage and by any means, but the defendant will be required to provide specified information. The party making the request must inform all other parties. The request will result in the Marking unless there is an objection. If there is an objection the Court will decide, on the documents, whether the case should be Covid-19 Case Marked when the file is next before a Judge.

When it comes to listing, generally speaking, the Court will not fix a date when it issues the claim form. At least 21 days’ notice is required of a hearing in a stayed claim listed or relisted in response to a Reactivation Notice. Cases (stayed and new) will ordinarily proceed with a Review (please see below) and then (where necessary) a Substantive Hearing. Courts will list up to around 3 months ahead.

On prioritisation, as a guideline the following cases are included in those to be listed with priority:

  • (a) Cases involving alleged squatters, illegal occupiers or persons unknown.
  • (b) Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted).
  • (c) Cases with allegations of fraud or deception.
  • (d) Cases with allegations of unlawful subletting.
  • (e) Cases with allegations of abandonment of the property, non-occupation or death of defendant.

14 days before the date listed as the Review Date the claimant will be required:

  • (a) to provide to the Court an electronic bundle;
  • (b) to confirm to the Court that a paper bundle had been provided to the defendant (with an electronic copy in addition where the defendant is able to receive that);
  • (c) to confirm to the Court that the bundle includes all required material, specifically including enhanced information about the defendant now required;
  • (d) to confirm to the Court that the claimant will be available during the Review Date to discuss the case (by telephone would be sufficient) with the defendant or a duty scheme (or other) adviser.

On the Review Date a very short Review appointment will be listed by the Court. This will be conducted by a Judge on the documents and without attendance by the parties. The Review is for 5 minutes. No court fee will be payable in relation to a Review or any order made on the Review Date.

Substantive Hearings

If the case is not resolved by agreement, the Judge will consider the bundle provided by the claimant and the Court file. If the claimant’s documents are in order the case will proceed to a Substantive Hearing 28 days later.

Where a Substantive Hearing is listed, all parties must attend. The hearing is for 15 minutes, with additional time between hearings for Covid-19 safety procedures. Unless the claimant and the defendant resolve the case, the Court will decide the claim or give further case management directions. Where the issues are complex or the evidence or argument requires, these directions may be towards a fuller substantive hearing with an individual time estimate and listing.

Notice of Eviction

Notice of eviction, of at least 14 days, is now required both in the County Court and in the High Court. In both cases, a new form now provides in both Courts for clear information to the defendant of the date of the proposed eviction and the right to apply to the court for suspension or postponement, and of available routes to advice. Safety of defendants, occupants and enforcement officers/bailiffs in the specific case will be carefully considered by enforcement officers/bailiffs. The Ministry of Housing has announced that guidance will be issued to bailiffs to ensure that no enforcement of possession orders will proceed where local lockdown measures are in place to protect public health (in areas where the public health risks could be greater).

Please let us know if you would like a copy of the full note from the Master of the Rolls Working Group. For more information, please contact me, Mark Higgins, [email protected] or call 07795504476.

Mark Higgins, Chairman