Introduction
The effect of the Rules
Comment and next steps


Introduction

As regular readers will be aware, CPR 55.29 came into force on 25 June 2020 and extended the stay on possession proceedings and enforcement proceedings by way of a writ or a warrant for possession until 23 August 2020.

Now, the draft Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 (the "Rules") provide for a further amendment to CPR Part 55, to introduce a new temporary Practice Direction (PD 55C) which sets out how claims under that Part (including appeals) are to proceed following the expiry of the stay.

The draft Rules are expected to come into force on 23 August 2020 but are subject to final approval and amendment.

The provisions encapsulated in the Rules relate partly to the resumption of proceedings following lifting of the stay and partly to new cases issued after the stay has ceased.

The effect of the Rules

The Rules seek to manage the backlog of cases which will have accrued during the stay in tandem with the anticipated flood of new cases post the lifting of lockdown restrictions, and to deal with matters fairly in particular where the pandemic may have affected tenants' circumstances:

  1. If a landlord wishes to resume stayed proceedings, it must notify both the court and the tenant of the landlord's continued desire to seek possession by providing a 'reactivation notice'. This is to avoid wasting court time on matters which may have been resolved through other means during the pandemic, and the courts are keen to encourage landlords not to pursue 'non-priority' cases through the courts. Priority cases include thoseinvolvinganti-social behaviour,extremerent arrears,domesticabuse, cases involving squatters,fraud or unlawful subletting. If a landlord does not provide a reactivation notice, the case will remain dormant – so swift action in serving notice is recommended once the stay ceases.
  2. Where the claim includes non-payment of rent, landlords must provide in their claim (either in the reactivation notice or for the hearing) any relevant information about a tenant's circumstances, including information on the effect of the pandemic on a tenant's vulnerability or social security position, to enable the court to have regard to these factors when making its decision.
  3. So far as possible, the landlord must produce the full arrears history in advance rather than at the hearing. This may clarify the sums in dispute and encourage early payment, in order to avoid the need for a formal hearing.
  4. The court may fix a hearing date either on or after the claim is issued, in order to allow the courts to manage the backlog of existing claims as well as an influx of new claims. The standard period between issue of a claim form and hearing (which usually would be not more than eight weeks) may be suspended to spread out hearings appropriately, in particular having regard to court capacity and to avoid "bunching".

PD 55C will expire on 28 March 2021 - so these Rules are (currently) temporary in nature.

Comment and next steps

It is clear, and understandable, that the Government is keen that the resumption of cases should be handled in a sensitive and proportionate manner, given the public health implications of the pandemic and the need to prevent homelessness.

This should however be balanced against a landlord's right to regain possession of its property, in respect of which the landlord may have issued a claim on mandatory grounds for possession some four months previously.

One alternative could be for landlords and tenants to instead consider mediation in order to reach a mutually acceptable agreement to resolve their dispute, without the matter needing to go to court. Whether this is practically a viable option for many landlords remains to be seen.

Whilst the Rules are unlikely to have much of an effect on the outcome of Section 21 or mandatory Ground 8 rent arrears claims, we anticipate serious delay before the courts have capacity to hear 'non-priority' cases, such as no-fault evictions – but just how long they will have to wait will largely depend on the capacity and working arrangements of the individual courts.

For further information on this topic please contact Eleanor Murray or Laura Cole at CMS Cameron McKenna Nabarro Olswang LLP by telephone (+44 20 7367 3000) or email ([email protected] or [email protected]). The CMS Cameron McKenna Nabarro Olswang LLP website can be accessed at cms.law​.

This article has been reproduced in its original format from Lexology – www.Lexology.com.