Following an extension on the suspension of the possession proceedings due to Covid-19, preparation was in place for the lifting of this extension on 23 August 2020 for an interim period ending on 28 March 2021. On Friday 21 August, the government announced that the possession stay was to be further extended until 20 September 2020.
What does the Practice Direction 55C set out?
Practice Direction 55C (PD55C) provides for a temporary modification to CPR Part 55 in relation to possession proceedings once the general stay is lifted. The new direction requires parties to file and serve a notice of reactivation for all stayed claims in order to ‘reactivate’ them.
PD55C separates all existing possession claims in two groups: those which were issued before 3 August 2020 and those which are issued on or after 3 August 2020. PD55C sets out the process parties will need to follow in order to get their cases up and running again. This will be done through the filing and service of a reactivation notice. Confusingly, PD55C refers to ‘stayed claims’ (brought on or before the 19 September 2020) and ‘new claims’ (brought after the 19 September 2020).
What about the reactivation notice?
The requirement for a reactivation notice does not apply to stayed claims brought on or after 3 August 2020 or stayed claims in which final possession order has been made. No stayed claims issued before 3 August 2020 will be dealt with by the courts unless the parties serve and file a reactivation notice.
The reactivation notice can be served in the form of a letter as there is no prescribed form. However, the reactivation notice must inform the Court whether the party would like the case to be listed, relisted, heard or referred and set out what knowledge the party has to the effect the pandemic has had on the tenant and their dependents. If the party applying to the Court with the reactivation notice does not hold any of this information, then the Court should be informed of this.
Where the claim includes non-payment of rent, landlords must provide in their claim (either in the reactivation notice or in advance of the hearing) any relevant information about a tenant’s circumstances which will enable the court to have regard to their vulnerability, disability, social security position, and those who are “shielding”.
What are some concerns about reactivation of possession claims?
The concern is that many landlords may not be able to obtain such information from tenants who are not cooperating. The PD55C does not say anything about what the court is meant to do with this information or how it should deal with defendants/tenants who refuse to provide the information in advance but seek to rely on it at a later stage. Where the claim is based on rent arrears, the landlord must also provide an updated rent account for the previous two years
The requirement to file and serve a reactivation notice also extends to a claim where case management directions were made before 20 September 2020 or a trial date was set prior to the to 27 March 2020. If a trial date had already been set before 27 March 2020, that trial date will now be vacated and stayed unless a reactivation notice is filed and served within 42 days of the trial date A party must file a copy of the last directions with new dates for compliance, a draft order for new directions with a new hearing date or confirmation that the existing hearing date can be met, and a statement saying whether the case is suitable for remote hearing. All must be filed with the reactivation notice.
Where a reactivation notice has been filed and served, the court must give at least 21 days’ notice to the parties of any hearing. If a reactivation notice is not filed by 4pm on 29 January 2021 then the claim will be automatically stayed, and an application to the Court will be required to lift the stay.
How does this apply to new claims?
For ‘new claims’, the requirement for the landlord to tell the Court anything they know about the effect of the pandemic on the defendant and their dependants must accompany the claim form. This also applies to accelerated possession claims.
Delays to the court process mean that landlords who wish to recover possession will still need to be patient, unless they are able to negotiate a mutually satisfactory agreement with their tenants outside of the court process. Landlords should start reviewing those properties with rent arrears or other breaches necessitating possession action, to decide how best to proceed and be ready to take steps as soon as possible after 20 September 2020.