Almost all forms of possession proceedings and enforcement action are currently stayed until 22 August 2020. This means that, for parties currently involved in such proceedings, they have no choice but to wait until the stay period is over before they can advance their claim through the Court.
Not only then have parties been forced to endure months of inactivity, but the build-up of stayed cases over such a long period will, inevitably, lead to backlog of claims. Therefore, even when they stay expires, the parties should expect to face long periods of delay.
The introduction of new legislation and new Practice Direction 55C appears to be a response to this build-up of stayed cases.
The Practice Direction
The new Practice Direction is available to view here:
This applies from 23 August 2020 to 28 March 2021 and affects both stayed claims and new claims (i.e. claims filed after 22 August 2020).
The key provisions of this Practice Direction are as follows:
- Certain types of stayed claims will not be advanced until a “reactivation notice” is served.
- The reactivation notice must:
- 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 effect of the Coronavirus pandemic on the Defendant and their dependants;
- where a 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.
- In certain type of stayed cases, the party filing and serving a reactivation notice must file and serve 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 a 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
- a statement in writing whether the case is suitable for hearing by video or audio link.
- In all claims brought 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 complied with that Pre-Action Protocol and detailing how the Claimant 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 sub-paragraph (a) setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.
- two copies of a notice—
- In 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 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.
These changes are more than just red tape and it is not just a case of serving the relevant notice and providing copies of the relevant document. In almost every case, the Claimant will have to set out their knowledge as to the effect of the Coronavirus pandemic on the Defendant and their dependents. What remains to be seen is whether this puts the Claimant under a positive duty to acquire such knowledge. If so, what is the extent of that duty? Or will it be enough to simply say that the Claimant has no such knowledge? Certainly, the Claimant will not be able to shut its eyes and close its ears as to the effects of the pandemic on the Defendant and its dependents. So, this is definitely an issue that needs careful attention.
If the intention of this legislation is to slow down the surge of stayed claims, it will most certainly achieve that. But, at what cost? The burden of compliance has definitely shifted in favour of the Defendants and this is likely to prejudice landlords more so than tenants.
This is very unlikely to be the final word in this area and we continue to keep a close eye on developments. So please get in touch if you have any questions and tune in for more updates in due course.
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.