A new Practice Direction (PD 55C) is to come into force on 23 August 2020.
The Practice Direction is made under r.55.A1 and is said to be a “temporary modification” of Part 55, for an “interim period” commencing on 23 August 2020 and ending on 28 March 2021.
What does this mean for housing lawyers?
The new PD imposes additional procedural steps that will have to be complied with in respect of claims for possession. The PD aims to provide a framework for how all claims for possession will now be dealt with by the courts, but it does make different provision for: claims issued before 22 August 2020 and which have been subject to the stay; claims subject to the stay which were brought on or after 3 August 2009, claims brought after 22 August 2020 and claims in which a final order for possession has already been made.
Position in respect of “stayed claims” only
A “stayed claim” means a claim which was brought before 22 August 2020 (including an appeal from such a claim) and which was subject to the stay imposed by r.55.29.
Unless r. 2.2 applies (see below) or unless the court orders otherwise, no stayed claim is to be:
- Heard; or
- Referred to a Judge under r.55.15 (action to be taken on receipt of a defence)
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 reactivation notice must (by para. 2.3):
- Confirm that the party filing and serving it wishes the case to be listed, relisted, heard or referred; and
- Except in proceedings relating to an appeal, set out what knowledge that party has as to the effects of the Coronavirus pandemic on the Defendant and their dependants.
If the claim is based on arrears of rent, if the Claimant is serving the notice, then it must (para. 2.4) be accompanied by an updated rent account for the previous two years. This requirement does not, however, apply in the case of an appeal.
If a trial date in respect of a stayed claim was set prior to 27 March 2020, it is to be vacated and the case further stayed, unless a party complies with the provisions of para. 2.1, 2.3, 2.4 and 5.1, not less 42 days prior to the hearing date.
In respect of any stayed claim (save where para 2.1 does not apply – see below), if by 4pm on 29 January 2021 no reactivation notice has been filed and served, the claim will be automatically stayed.
A stay under para. 2.5 or 2.6 is not a sanction for breach, and an application to lift the stay is not an application for relief from sanctions under.39
Where para 2.1 applies, para. 5.1 states that where case management directions were made before 23 August 2020, a party filing and serving a reactivation notice must file and served. with it-
- A copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 23 August 2020; and
- A draft order setting out additional or alternative directions (including proposing aa new hearing date) which are required; or
- A statement in writing that no new directions are required and that an existing hearing date can be met; and
- Aa statement in writing whether the case is suitable for hearing by video or audio link.
Para. 5.2 provides that if the other parties do not agree with any of the matters advanced under para. 5.1(a), (b) and (c), they must file and serve a response within 14. Days of service of the reactivation notice.
If no party complies with para. 5.1 by 4pm on 29 January 2021, the claim is automatically stayed (para. 5.3). This is not a sanction for breach (para. 5.4) and an application to lift the stay is not an application for relief from sanctions under r.3.9
Para. 2.2 provides that the requirement for a reactivation notices does not apply to a stayed claim:
- Which was brought on or after 3 August 2020; or
- In which a final possession order has been made.
By para. 3.1, the court must, unless it directs otherwise, give at least 21 days’ notice to the parties of any hearing listed or relisted in response to a reactivation notice.
Position in relation to all claims where no hearing is listed
By para. 4.1, during the “interim period”, r.55.5 applies but is modified. Paragraph 1 now reads (changes underlined):
(1) Subject to paragraph (1A), the court will fix a date for the hearing when or after it issues the claim form.
The other change is that paragraph (3)(b) (standard period between issues and hearing of eight weeks) does not apply.
Position in respect of new claims and stayed claims brought on or after 3 August 2020
A “new claim” means a claim brought after 22 August 2020.
Para. 6.1 provides that in any claim brought on or after 3 August 2020, the Claimant must:
- Bring to the hearing two copies of a notice
- In a claim to which the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirming that the Claimant has complies with the PAP and detailing how it has done so; and
- In all claims, setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants; and
- Serve on the Defendant not less than 14 days prior to the hearing the notices referred to in para. 6.1(a) setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.
Para. 6.2 states that it applies to any claim (whether a new claim or a stayed claim) brought on or after 3 August 2020, to which Section II of Part 55 applies (this is somewhat odd as para. 1.7 states that this paragraph applies only to new claims to which Section II of Part 55 applies – Section II concerns “Accelerated Possession Claims of Property Let on an Assured Shorthold Tenancy), 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.
Pre-Action Protocol for Possession Claims
Finally, the PD states that, for a claim to which the Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property is applicable, para. 5.5 of PD55A requires the Claimant to bring to the hearing two completed copies of Form N123 (the mortgage pre-action Protocol checklist).