Overall Arrangements for Possession Proceedings

Introduction

On 17 September 2020, the Master of the Rolls (“MR”) introduced the “Overall Arrangements for Possession Proceedings” (the “Overall Arrangements”). The Overall Arrangements involve and are supported by the Amendments to the CPR and PD55 (as discussed in the previous briefing) but they also include a wider range of guidance that the courts will apply as they begin to process the massive backlog of possession claims. As a prelude to 1CL’s webinar on this topic next week, I have below addressed the key aspects of the Overall Arrangements and how they will look in practice.[1]

The Overall Arrangements

First, it is important to keep in mind that that the strategy reflected in the Overall Arrangements is directed at:

1. Reducing volume in the system by enabling earlier advice and increasing settlement;
2. Taking account, within limits that the law has imposed, of the effect of the pandemic on all parties; and
3. Maintaining confidence in the fairness of outcomes. (see [4]).

The amendments to the CPR / PD form part of the Overall Arrangements and were thus designed to further these overriding objectives. Parties will want to keep these principles in mind when navigating the procedural pitfalls created by this new scheme.

The new case management and listing arrangements

Due largely to the severity of the backlog, the Court will no longer fix a hearing date when it issues the claim form and the former standard period between issue and hearing of 8 weeks will not apply: [32]-[33] and PD55C para 4.1. Quite simply, parties can expect long delays in the management and hearing of their disputes.

Priority

Naturally, the question of priority will assume greater importance given the lengthy delay many claimants will face. It seems ‘priority cases’ will be confined to the following[2]:

• Cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1975;
• Cases with extreme alleged rent arrears accrued, that is, arrears qual to at least i) 12 month rent or ii) 9 months rent where that amounts to more than 25% of a private landlord’s total annual income from any source;
• Cases involving alleged squatters;
• 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;
• Cases with allegations of fraud or deception;
• Cases with allegations of unlawful subletting;
• Cases with allegations of abandonment of the property, non-occupation or death of the defendant;
• Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.

The central uncertainty here is whether the question of priority will be binary (priority or non-priority) or a sliding scale. We are not aware of any guidance that has been given to District Judges on this point. This issue is compounded by the fact that there is no guidance about how priority cases will stack up against each other. We suspect that this will fall to be considered by the judge charged with listing.

The Review Date

Once a case lands in front of a judge for directions, the first date to be listed will be the Review Date (“R Date”). The R Date is a very short (5 min) appointment where the Judge considers the dispute on the papers – the parties do not attend. No court fee is payable. At least 14 days prior to the R Date, the claimant is required to provide a full bundle to the court that includes all of the requisite documents and confirmation that they will be available to discuss (by telephone is sufficient) settlement with the Defendant. Pausing there, two points need to be made:

• It is not clear whether the legal advisors will need to be free for the entire day on the R Date. The stated guidance only provides that the landlord must confirm that they will be free on that date, by telephone if required, to discuss the matter. We consider the clear interpretation of that is that the legal advisors will also probably need to be available all day to negotiate. The workability of that scenario is, in our view, questionable.
• More substantively, if the bundle does not include the requisite papers, the Court “can be expected to dismiss the claim” or may give directions: [54]. However, parties who have had their claims dismissed on this basis without a hearing will be offered the chance to apply for “reconsideration at an oral hearing”. It is not clear what form the “reconsideration hearing” will take.

In terms of the general purpose of the R Date, it has been designed to enable the defendant a further opportunity to obtain legal advice and thereafter (at least in theory) settle the claim. This advice is provided pursuant to changes in the coverage of the legal aid duty scheme – now, defendants are entitled to free legal advice at both the R Date and the Substantive Hearing: [47]. Facilitating settlement is plainly a key component of the Overall Arrangements, and it clear the MoJ are hoping that this additional legal advice will serve that objective. It remains to be seen whether that will eventuate. A final practical point –  the R date will generally be listed for the end of the day so that if the case is resolved, or directions are agreed, then the Court will be available to make the orders required: [52].

The Substantive Hearing

If the case is not settled on the R Date (or thereafter) and the claimant’s papers are in order, the dispute will be listed for a Substantive Hearing Date (“S Date”). Notably, the Overall Arrangements state that the “S Date should be 28 days after the Review Date” ([39]), whereas government guidance elsewhere states that the S date will be a “minimum of 28 days” after the R Date.[3] It is not clear which will apply.

One important point to note in relation to the S Date is that the question of adjournment will be considered, without the need for an application, in any case where a) there is no sign that advice has yet been made available to the defendant and b) the consequences of the order may be serious in the context of the pandemic: [58]. It is thus in the interests of all parties to ensure that the defendant has benefited from legal advice on the R Date – otherwise, there is a risk of further delay.

Accelerated Possession Claims (APCs)

The above will generally not apply to APCs and an order for possession may still be made in such cases (per pre-existing rules) without a hearing by a Judge to whom the parties have been referred: [60]. However, APCs will be subject to the following aspects of the Overall Arrangements:

• Under PD55C para 2.1, APCs issued before 3 August 2020 will require a Reactivation Notice like all other stayed claims;
• APCs will also be considered pursuant to the priorities listed above;
• Where the parties agree or there is no objection, the Judge to whom an APC has been referred for consideration may direct that a R Date be listed to enable the Defendant to receive duty scheme advice and assistance.

The impacts of covid-19

The other key aspect of the Overall Arrangements is the acknowledgement that covid-19 has created unique difficulties for society’s most vulnerable. This acknowledgement has taken the form of the Covid-19 Case Marking and the Enhanced Information provisions in the Overall Arrangements.

Enhanced information

Landlords are now required to set out what knowledge they have as to the effect of the pandemic on the defendant and dependants. This applies to all existing cases where a Reactivation Notice is served and all new claims, including all APCs: PD55C para 6.1(A)(ii). The landlord is under no obligation to make enquiries into the effect of the pandemic on their tenant. It seems from this guidance that there is an inherent risk in making such enquiries – if the tenant responds and says they have been impacted by covid-19, the landlord will be obliged to state this in the Reactivation Notice and that in turn may lead to the case being pushed back.

Covid-19 Case Marking

The basic mechanics of this scheme are that, where applicable, the Court file will be marked to highlight any case that is or is claimed to be a direct consequence of Covid-19. This is an important feature of the new arrangement and is intended to (amongst other things) assist the court with listing (whether to take earlier or later), case management and exercising any discretion available in decision making: [29]. It can be expected that a case that is Covid-19 Marked will be pushed back in the general ‘queue’.

Notably, it is open to any party, at any stage, to request that the case is Covid-19 Case Marked. The party making the request will be required to provide specified information (see below) and must inform all other parties of the request. In the event the other party objects to the case being Covid-19 Case Marked, the Court will decide whether the case should be so marked when the file is next before a Judge. One might expect that such requests will be frequently made by landlords seeking to bring their claim further forward in the queue and also by tenants seeking to protract the process.

Covid-19 Case Marking by a Defendant will require the following “specified information”:

• Brief details of the particular hardship faced by the Defendant;
• Whether there were material arrears outstanding before March 2020;
• Whether the Defendant has been placed on furlough, and whether the Defendant offered or paid a related proportion of rent or borrowing arrears;
• Whether the Defendant has obtained universal credit since March 2020, and whether the Defendant offered or paid a related proportion of rent or borrowing arrears;
• Whether the Defendant has been unable to earn by reason of Covid-19;
• Whether the Defendant has been shielding;
• What proposals the Defendant has to pay the rent or borrowing arrears.

Covid-19 Case Marking by a Claimant will require the following “specified information”:

• Brief details of the particular hardship faced by the Claimant;
• Whether the Claimant has received assistance under a Covid-19 scheme, including (where a Landlord) with any borrowing by the landlord in respect of the property.

Covid-19 Case Marking is clearly one of the measures that will enable the courts to manage the backlog effectively and prioritise.

Eviction where an order for possession is made

Notice of eviction, of at least 14 days, is now required both in the County Court and in the High Court: [63].

Previously, claimants often applied to transfer enforcement from the County Court to the High Court in order to benefit from quicker and more effective enforcement options. But the Overall Arrangements stress that such applications “may not be able to be treated as of high priority”: [64].  This will need to be factored in when considering possible enforcement routes.

Other practical points

The guidance makes clear that ensuring socially distanced hearings is still a paramount consideration – “only court centres able to conduct hearings with social distancing will be used” and each court centre will have a safety and active cleaning procedure: [18].

In terms of the venue of the hearing, the parties will always be offered a physical hearing for the substantive hearing, save where a) contingency measures need (eg, due a more stringent lockdown) to be introduced; b) the existing provisions for APCs apply; or c) where the parties agree that a hearing should be by telephone or video: [15]. The request for a hearing to be heard by telephone or video should generally be made in writing.

There is also emphasis on the courts’ increased capabilities: the Court Service has designated 160 staff to serve as liaison staff members for the Overall Arrangements at each court centre; there will be a dedicated possessions email address at each court centre; and we are told an additional cadre of 200 DDJs is being trained to assist as required. For better or for worse, there will be no block lists: [34].

Summary

It is unclear how the Overall Arrangements will apply in practice and they are sure to develop and evolve as time goes on. While the overall scheme is fairly coherent, there are noticeable gaps and uncertainties. What can be said, with certainty, is that the housing and property courts have an unprecedented challenge on their hands.

[1] Paragraphs in the Overall Arrangements guidance are referred to in [x]. I have also included information from the guides issued by the MHCLG.

[2] “Possession Proceedings Listing Priorities in the County Court”: https://www.judiciary.uk/wp-content/uploads/2020/09/20200917-Guidance-note-MR-to-Civil-Judges-Possession-priorities-Housing-1.pdf.

[3] https://www.gov.uk/government/publications/understanding-the-possession-action-process-guidance-for-landlords-and-tenants/understanding-the-possession-action-process-a-guide-for-private-landlords-in-england-and-wales/