POSSESSION AND COVID: NEW AND REACTIVATED CASES DOMINIC PRESTON, BEN CHATAWAY, ALICE IRVING - @DOUGHTYSTHSW - DOUGHTY STREET CHAMBERS
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Possession and COVID: new and reactivated cases
Dominic Preston, Ben Chataway, Alice Irving
@DoughtyStHSW
COVID – notices
and technical defences
Ben Chataway
b.chataway@doughtystreet.co.uk
Notices – section 21 Housing Act 1988
Date the notice was served Notice period Form
24 March 2020 or before 2 months (valid for 6) Form 6A (1 June 2019)
s.21 Housing Act 1998 Assured Tenancies and Agricultural Occupancies
(Forms) (England) Regulations 2015
25 March - 28 August 2020 3 months (valid for 6) Form 6A (26 March 2020)
Para. 7 Sch. 29 Coronavirus Act 2020 Para. 12(2) Sch.29
29 August - 1 September 6 months (valid for 10) Form 6A (29 August 2020)
2020
Coronavirus Act 2020 (Residential Reg. 3(11)(b) and para.12(2) Sch.29
Tenancies: Protection from Eviction)
(Amendment) (England) Regulations
2020, reg. 3(7)
2 September - 31 March 2021 6 months (valid for 10) Form 6A (2 September 2020)
Coronavirus Act 2020 (Residential Assured Tenancies and Agricultural Occupancies
Tenancies: Protection from Eviction) (Forms) (England) (Amendment) and Suspension
(Amendment) (England) Regulations (Coronavirus) Regulations 2020
2020, reg. 3(7)Notice on or before 24 March 2020 Section 21 Housing Act 1988 “(1) … on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied- ... (b) the landlord … has given to the tenant not less than two months’ notice in writing… … (4D) … proceedings … may not be begun after the end of the period of six months beginning with the date on which the notice was given … … (8) The Secretary of State may by regulations made by statutory instrument prescribe the form of a notice under subsection (1) or (4) ...”
25 March – 28 August 2020
Schedule 29 Coronavirus Act 2020, para. 7:
“Section 21 of the Housing Act 1988 … is to be read, in relation to
notices given under subsection (1) or (4) of that section during the
relevant period, as if—
(a) in subsection (1)(b) for ‘two months’ there were substituted ‘three
months’…”
No change to section 21(4D) (six months)29 August to 31 March 2021 (cont.) Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020, reg. 3 “(7) In paragraph 7 (modification of section 21 of the Housing Act 1988: notice of possession proceedings in relation to assured shorthold tenancies)— (a) in paragraphs (a) and (b), for ‘three months’ substitute ‘six months’; (b) after paragraph (b) (and before ‘and’ at the end of the paragraph) insert— ‘(ba) in subsection (4D) for "six months” there were substituted “10 months”’…”
29 August to 31 March 2021
Para. 13 of Schedule 29 CA 2020:
“(1) The relevant national authority may by regulations made by statutory
instrument amend this Schedule—
(a) to alter a reference to three months in this Schedule into—
(i) a reference to six months, or
(ii) a reference to any other specified period which is less than six months, or
(b) to alter a reference which has been altered by virtue of paragraph (a) or this
paragraph (but not so as to result in the reference being to a specified period
of more than six months).
(2) Sub-paragraph (1) applies to references in this Schedule whether or not they are
contained in text which is to be treated as if inserted or substituted into another
enactment.”29 August to 31 March 2021 (cont.)
Para. 14 of Schedule 29 CA 2020:
“(1) Any power to make regulations under this Schedule—
…
(c) includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision (including provision
modifying enactments or amending this Schedule)”.
(See also section 81: “Schedule 29 makes provision about notice periods
in relation to possession proceedings in respect of certain residential
tenancies etc”)Notices – section 21 Housing Act 1988
Date the notice was served Notice period Form
24 March 2020 or before 2 months (valid for 6) Form 6A (1 June 2019)
s.21 Housing Act 1998 Assured Tenancies and Agricultural Occupancies
(Forms) (England) Regulations 2015
25 March - 28 August 2020 3 months (valid for 6) Form 6A (26 March 2020)
Para. 7 Sch. 29 Coronavirus Act 2020 Para. 12(2) Sch.29
29 August - 1 September 6 months (valid for 10) Form 6A (29 August 2020)
2020
Coronavirus Act 2020 (Residential Reg. 3(11)(b) and para.12(2) Sch.29
Tenancies: Protection from Eviction)
(Amendment) (England) Regulations
2020, reg. 3(7)
2 September - 31 March 2021 6 months (valid for 10) Form 6A (2 September 2020)
Coronavirus Act 2020 (Residential Assured Tenancies and Agricultural Occupancies
Tenancies: Protection from Eviction) (Forms) (England) (Amendment) and Suspension
(Amendment) (England) Regulations (Coronavirus) Regulations 2020
2020, reg. 3(7)Form 6A - 26 March to 31 August 2020
Schedule 29 Coronavirus Act 2020, para. 12:
“(2) The Schedule to the Assured Tenancies and Agricultural Occupancies
(Forms) (England) Regulations 2015 (S.I. 2015/620) is to be read … as if in
Form 6A …—
(a) in the section headed "What to do if this notice is served on you", in the
second paragraph—
(i) for "two months'" there were substituted "three months’”….”
New Form 6A posted on 26 March 2020
(https://www.gov.uk/guidance/assured-tenancy-forms#form-6a)Notices – section 8 Housing Act 1988
Date the notice was served Notice period Form
24 March 2020 or before 0 - 2 months Form 3 (6 April 2015)
Section 8 Housing Act 1998 Assured Tenancies and Agricultural
Occupancies (Forms) (England)
Regulations 2015
25 March - 28 August 2020 3 months Form 3 (26 March 2020)
Para. 6 of Sch. 29 Coronavirus Act 2020 Para. 12(1) of Sch.29
29 August – 31 March 2021 0 - 1 month for Grounds 7A, 14 Form 3 (29 August 2020)
0 - 6 months: “the relevant notice period” Reg. 2 and 3(11)(b)
Coronavirus Act 2020 (Residential Tenancies:
Protection from Eviction) (Amendment) (England)
Regulations 2020, regs. 2(c) and 3(6)Section 8 notices - 29 August 2020 onwards
Coronavirus Act 2020 (Residential Tenancies: Protection from
Eviction) (Amendment) (England) Regulations 2020, reg. 2
“The following paragraphs of Schedule 29 are suspended in relation to
England—
…
(c) paragraph 6(a) and (b) (modification of section 8(3A) and (4) of
the Housing Act 1988 notice of possession proceedings on
Ground 7A and 14 in relation to assured tenancies)…”Notices – section 8 Housing Act 1988
Date the notice was served Notice period Form
24 March 2020 or before 0 - 2 months Form 3 (6 April 2015)
Section 8 Housing Act 1998 Assured Tenancies and Agricultural
Occupancies (Forms) (England)
Regulations 2015
25 March - 28 August 2020 3 months Form 3 (26 March 2020)
Para. 6 of Sch. 29 Coronavirus Act 2020 Para. 12(1) of Sch.29
29 August – 31 March 2021 0 - 1 month for Grounds 7A, 14 Form 3 (29 August 2020)
0 - 6 months: “the relevant notice period” Reg. 2 and 3(11)(b)
Coronavirus Act 2020 (Residential Tenancies:
Protection from Eviction) (Amendment) (England)
Regulations 2020, regs. 2(c) and 3(6)Summary: notice periods 29 August – 31 March 2021
Notice period Ground for possession
0 – 3 months (~ as before) Antisocial behaviour, inc. mandatory grounds
Rioting, domestic abuse, false statements, death of tenant, no right to rent
4 weeks Rent arrears < 6 months
6 months All other groundsPre-action protocol - social landlords
“1.5 Courts should take into account whether this protocol has been followed when
considering what orders to make. Social landlords should also comply with
guidance issued from time to time by the Regulator of Social Housing, the Ministry
for Housing, Communities and Local Government and, in Wales, the Welsh
Ministers.”
Part 2 – rent claims:
“2.14 If the landlord unreasonably fails to comply with the terms of this protocol,
the court may make one or more of the following orders–
(a) an order for costs;
(b) an order adjourning the claim; or
(c) an order striking out or dismissing the claim (other than a claim based on a
mandatory ground).”Really?
Compare CPR r. 3.1:
“(4) Where the court gives directions it will take into account whether or not a
party has complied with the Practice Direction (Pre-Action Conduct) and
any relevant pre-action protocol.
(5) The court may order a party to pay a sum of money into court if that party
has, without good reason, failed to comply with a rule, practice direction
or a relevant pre-action protocol.”
With r. 3.4:
“(2) The court may strike out(GL) a statement of case if it appears to the
court—
(c) that there has been a failure to comply with a rule, practice
direction or court order.”PD55C (dated 17 July, effective 20 September)
“6.1 In any claim (whether a new claim or a stayed claim) brought on or after 3
August 2020, the Claimant must—
(a) bring to the hearing two copies of a notice—
(i) 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
(ii) 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
(b) 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.”Master of the Rolls, “Overall arrangements”
“4. The strategy reflected in the Overall Arrangements is directed to (a) reducing
volume in the system by enabling earlier advice and increasing settlement, (b)
taking account, within limits that the law has imposed, of the effect of the
pandemic on all parties, and (c) maintaining confidence in the fairness of
outcomes. These objectives are also relevant beyond the legal system,
including to the economy and to homelessness.
…
7. No claim for possession should be re-started without careful efforts to reach
compromise.
…
10. No new claim for possession should be started without careful efforts to reach
compromise. …
11. Where a Pre-Action Protocol applies it must be complied with, and compliance
will need to be shown.”The Review (R) Date “54. If the claimant’s documents are not in order the Court can be expected to dismiss the claim (with liberty to apply for reconsideration at an oral hearing) or may give directions.”
New claims
Claims brought after 19 September 2020
Alice Irving
a.irving@doughtystreet.co.ukResources • PD 55C http://www.justice.gov.uk/courts/procedure-rules/civil/rules/practice-direction-55c- coronavirus-temporary-provision-in-relation-to-possession-proceedings • Overall Arrangements https://www.judiciary.uk/wp-content/uploads/2020/09/Possession-Proceedings-Overall- Arrangements-Version-1.0-17.09.20.pdf • MHCLG Guidance for landlords and tenants https://www.gov.uk/government/publications/understanding-the-possession-action-process- guidance-for-landlords-and-tenants • NRLA Pre-Action Plan: Managing arrears and avoiding possession claims https://www.nrla.org.uk/resources/ending-your-tenancy/pre-action-plan-avoiding-possession- claims
Notice requirements in new cases Claimant must prepare notice: • Confirming compliance with the Pre-Action Protocol for Possession Claims by Social Landlords (if applicable) • Setting out what knowledge the Claimant has as to the effect of the Coronavirus pandemic on the Defendant and their dependants. Procedural steps: • Claimant must serve notice on Defendant not less than 14 days before hearing. • Claimant must bring two copies of notice to hearing. • In new claims under the accelerated procedure, Claimant must file notice with the claim form.
Claimant’s knowledge of impact There is no duty to investigate the effect of the Coronavirus pandemic on the Defendant. Nevertheless, the MHCLG Guidance for landlords provides: “If you have no knowledge of your tenants’ circumstances you should make this clear, including information about any attempts made to discuss matters with them… If you do not provide this information, your claim will be delayed.”
Covid-19 Case Marking • Case file marked where possession case is or is claimed to be a direct consequence of Covid-19. • Either party can request the case be Covid-19 marked. Court decides if disputed. ☠️ Warning that misleading court is a criminal offence. ‘You should only indicate that your case has been affected by COVID-19 if you have been affected by the pandemic in a way which is relevant to your landlord’s possession claim – principally, if this has affected your ability to pay rent.’ ✅ Covid-19 related arrears ❓ Covid-19 related ASB
Covid-19 Case Marking Defendants should consider marking claim, because: • Claimants encouraged in MHCLG Guidance to reach settlement in marked cases. • In cases on discretionary grounds, may influence decision. • In accelerated possession claims, if the case is marked the judge may direct a review take place which will allow Defendant to receive advice from duty scheme adviser.
Covid-19 Case Marking Defendant must provide brief details of their circumstances, including: • whether there were arrears outstanding before March 2020 • whether D was furloughed and whether D offered or paid a related proportion of rent • whether D obtained UC since March 2020 and whether D offered or paid a related proportion of rent • if D has been unable to earn by reason of COVID-19 • if D has been shielding, asked to self-isolate by Test and Trace or required to quarantine under travel restrictions • D’s proposal to pay the rent
New listing procedure Review dates (R-dates) • Min 21 days’ notice of R date. • Min 14 days before R date, Claimant must provide Court with electronic bundle and confirm also provided to Defendant. • R date is not a hearing; parties need not attend court. • Defendant has access to duty advice (most likely remote). • Parties encouraged to try to reach agreement / agree directions. • Court available to make orders where agreed. • Court will review papers. If Claimant’s documents not in order the Court ‘can be expected to dismiss the claim (with liberty to apply for reconsideration at an oral hearing) or may give directions.’
New listing procedure Substantive hearing (S-hearings) • Min 28 days after R date. • Presumption will be in person, although parties can agree to remote hearing and apply to Court; final decision with the Court. • Should not attend court if clinically extremely vulnerable and advised to shield, advised to self-isolate or quarantine or are following government guidelines. • Social distancing and masks to be worn inside court buildings. • 15 minute hearing. • Claim to be decided or court to give further case management directions.
S-hearings : adjournment
“ Where the issues are complex or the evidence or argument requires, these
directions may be towards a fuller substantive hearing with an individual
time estimate and listing.
It can be expected that the question of adjournment will be considered,
without the need for an application to adjournment, 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.”
Overall Arrangements paras 57-58S-hearings : adjournment
Can adjourn in Ground 8 possession claim where:
• D shows he has an arguable claim in damages to set-off
• D shows an arguable defence based on estoppel arising from agreement
• Where landlord is public body, D shows arguable defence of abuse of
power
North British Housing Assoc Ltd v Matthews [2004] EWCA Civ 1736S-hearings : adjournment Other things to consider: • Did D access duty scheme at R date? • Did the duty adviser have the bundle? • Constraints of duty advice at R date: remote, time-limited, can only be given on R date (feature of LAA funding arrangement)
Accelerated Possession Proceedings • Normally dealt with on the papers, unless there is a defence that needs exploring or there is a claim that there is exceptional hardship which means the tenant needs extra time to move. • In new cases under the accelerated procedure, Claimant must file notice setting out what knowledge the Claimant has as to the effect of the Coronavirus pandemic on the Defendant and their dependants with the claim form (PD 55C, 6.2) • This also applies to stayed claims brought after 3 August 2020 even though CPR 55C, which brought this into force, only came into force 20 September 2020. • Might judges dismiss claims made between 3 August 2020 and 19 September 2020 for failure to file notice? • Also, in accelerated possession claims, if the case is marked the judge may direct a review take place which will allow Defendant to receive advice from duty scheme adviser.
Stayed Claims
Claims brought before 19 September 2020
… or should that be 3rd August 2020
Dominic Preston
d.preston@doughtystreet.co.ukSummary of talk
• Purpose : Identify what is now required to progress litigation of
‘stayed claims’
• Toolkit:
• CPR 55.29 – identifies when a claim is ‘subject’ to a stay
• PD 55C (and CPR 55.A1) – tells us which claims the court will progress
automatically and which require a jump start from the parties
• MR’s ‘Overall Arrangements for Possession Proceedings’ – 17/9/20 v. 1.0
• Reactivation Notices (x2; for Claimant; for Defendant)
• Extras:
• MR’s ‘Possession Proceedings Listing Priorities’ (periodically updated?)
• Pre-action protocol for possession claims by social landlords (13/1/20)
• Guidance - lots of it – issued by MOJ, MHCLG and landlord groups (NRLA)PD 55C – the legislative purpose
In conjunction with the Overall Arrangements (‘AO’), the objective is
(AO at [4]):
(a) reducing volume in the system by enabling earlier advice and increasing
settlement, (b) taking account, within limits that the law has imposed, of the
effect of the pandemic on all parties, and (c) maintaining confidence in the
fairness of outcomes. These objectives are also relevant beyond the legal system,
including to the economy and to homelessness.PD 55C – learning the lingo
• PD 55C – in force from 20 September 2020. Sunset date 28th March
2021
• Concepts created:
1. ‘Stayed claim’: any claim brought on or before 19th September 2020
(including one subject to an appeal) which was subject to the stay imposed
by CPR 55.29. Two types of stayed claims:
• Those issued before 3rd August 2020
• Those issued after 3rd August 2020
2. ‘new claims’: any claim brought after 19th September 2020 …
• BUT NOTE ‘stayed claims’ brought after 3rd August 2020 are treated
like ’new claims’ (save in respect of trespasser claims against persons
unknown)PD 55C – Other dividing lines
• PD 55C only applies to claims brought under CPR 55.2 (possession
claim by landlord, mortgagee or licensor; claims against trespassers)
• Trespasser cases against Persons Unknown:
• Pre 19/9/20 trespasser cases against P/U are NOT stayed claims (CPR 55.6
and 55.29 (2)(c)) - have proceeded as usual unaffected by general stay.
• But they ARE ‘new claims’ if brought after 19/9/20. (Thus included in ‘review
date’ procedure; Still get priority listing) – Query must they serve ‘notices’
under PD 55C para 6.1 and do so 14 days in advance of hearing
• PD 55C does not apply where possession order already granted:
• No relevance to enforcement of possession order
• No relevance to stay applications – even for suspended possession ordersPD 55C - The main provisions
1. All stayed claims brought before 3rd August 2020
• cannot be listed, re-listed, heard or referred to a judge in the absence of a
reactivation notice from one of the parties ([2.1], unless (i) the court directs
otherwise or (ii) there is already a final possession order
• Any trial date (set before 27th March 2020) is vacated unless a compliant
reactivation notice is served ‘not less than 42 days prior to the hearing date’ or
court directs otherwise
2. All claims (new claims and stayed claims brought on or after 3rd August 2020)
require the Claimant to file and serve notices about ([6.1]):
• Any ‘covid’ consequences (‘the Covid information’); and
• Compliance with the social landlord protocol (if applicable)
3. The requirement to list (non-trespasser) cases within 8 weeks has been removed to
allow the new listing regime to kick in.Stayed Claims (pre 3/8/20) - The reactivation notice • No prescribed form – but two forms are available (Claimant/Defendant) • Must identify whether seeking listing, relisting, hearing or referral • Must identify what knowledge the applicant has ‘as to the effect of the Coronavirus pandemic on the Defendant and their dependants’ (‘the Covid information’); • NOTE: no duty to inquire about effect of Covid, although Claimant form encourages inquiry and court might adjourn in absence of information. • If rent based claim, Claimant must provide updated rent account for past 2 years • If case management directions previously given, additional information is required.
Reactivation notices and Appeals
1. ‘Stayed claims’ with stayed appeals subject to same regime
2. But no need to provide ‘Covid information’ or updated rent
information ([2.3(b)], [2.4])
Oddity:
• Reactivation notices not required where ‘a final order for possession has
been made’: [(2.2(b)]
• There is no definition of ‘final order for possession’
• If appeal is in respect of the ‘final order for possession’ is reactivation
notice required?
• Answer unclear, but court likely to say there is no ‘final order’ if the
possession order is being appealed.Consequences of filing reactivation notice
• Request for ‘referral to judge’ - in accelerated possession proceedings:
paper hearing in accordance with Part II of CPR 55
• Request for listing or relisting for any hearing: court must give 21 days
notice of hearing unless it directs otherwise.
• Query whether opportunity for parties to ‘save’ vacated trial? parties would need to
act very quickly. Court only likely to shorten notice period if case is on priority list
and parties in agreement or clearly no prejudice
• If case has no directions, likely to go into ‘review date’ and ‘substantive
date’ structure
• If CPR 55.8 hearing has already happened and directions previously made,
likely to be listed for case management hearing in absence of agreed
directions (AO at 37 and 38)Reactivation notice – additional requirements
where directions previously given
• If case management directions have previously been made applicant must file and
serve (with RN)
• copy of last directions and suggested new dates for compliance
• Draft order setting out additional or alternative directions (incl. hearing date) or
Statement that no new directions required and that existing hearing date can be
met
• Statement whether case is suitable for hearing by video or audio link
• Other party has 14 days to file written response
• Procedure makes it likely judge will review directions on paper or list for case
management if there is a dispute
• May need N244 application if directions sought are ‘controversial’ – e.g. late statementsStayed claims – what if parties do nothing … • No reactivation notice by 29/1/21 – automatic stay. • If RN served, but no one complies with directions relating to existing case management orders ([5.1] requirements) – automatic stay. • Any party may apply to lift stay – not to be treated as application for relief from sanctions under CPR 3.9
A note on enforcement • As soon as stay is lifted, existing possession orders may be enforced • MOJ has issued instructions to bailiffs: • not to enforce where ‘whackamole’ Covid restrictions are in place • not to enforce over Christmas period • Bailiffs are now required to give 14 days notice of any execution of a warrant, whether High Court or County Court • Where warrant applications already issued bailiffs will start listing eviction appointments from 21/9 - no need for further application • priority for evictions by reference to MR priority list, thereafter by date of application
Possession and COVID: new and reactivated cases
Dominic Preston, Ben Chataway, Alice Irving
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