When will my possession case be heard and when will I obtain possession of my property are questions many of our clients have been asking for months.
On 11 June 2020, we reported (here) that the government had extended the stay (suspension) on all residential possession action until 23 August 2020.
We still can't answer the questions above, but we now know that the stay does not automatically end on 23 August and there is a new procedure introduced by a further amendment to Part 55 of the Civil Procedure Rules and a new Practice Direction - PD55C.
So what are the changes and the new procedure?
Part 55 is amended to refer to the new Practice Direction 55C, which applies until 28 March 2021 and affects 'stayed claims' (issued before 22 August 2020) and 'new claims' (issued on or after 23 August 2020).
In respect of stayed claims issued before 3 August 2020, where a possession order has not been made, there shall be no listing, relisting, hearing or referral without a reactivation notice as follows:
- Unless the court directs otherwise, no stayed claim is to be (a) listed (b) relisted (c) heard; or (d) referred to a judge under rule 55.15 [accelerated possession claim for ASTs], until one of the parties files and serves a written notice (a “reactivation notice”) confirming that they wish the case to be listed, relisted, heard or referred.[2.1]
- A reactivation notice must— (a) confirm that the party filing and serving it wishes the case to be listed, relisted, heard or referred; and (b) 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.[2.3]
- Except in proceedings relating to an appeal, 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.[2.4]
Paragraph 2.5 deals with claims where a trial date was set before the stay came into force on 27 March 2020 and provides that unless the court directs otherwise the trial date is vacated and the claim is stayed until a reactivation notice, updated rent statement and updated draft directions (see below) are filed and served at least 42 days before the hearing.
If no reactivation notice is filed by 4pm on 29 January 2021, the claim will be stayed automatically (para 2.6). This further stay is not a sanction for breach, so any application to lift the stay is not an application for relief from sanctions under CPR 3.9 (para 2.7).
Paragraph 5.1 deals with cases where case management directions have been made before 23 August 2020, and states that any party filing and serving a reactivation notice must also file and serve:
- 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
- either— (i) a draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or (ii) a written statement that no new directions are required and that an existing hearing date can be met; and
- a written statement whether the case is suitable for hearing by video or audio link.
There are also provisions relating to new claims including that the 8 week period between issue and hearing no longer applies and that landlords must file with the claim form for service a notice setting out what knowledge the landlord has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.
So there we go! In short, any claim currently stayed will need a reactivation notice, but when it will be listed for hearing and when possession will be obtained is still anyone's guess.
The Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 provides for a further amendment to CPR Part 55 to introduce a new temporary Practice Direction (Practice Direction 55C) for how claims under this Part (including appeals) are to proceed following the expiry of the stay provided for by rule 55.29. The provisions relate partly to the resumption of proceedings following lifting of the stay and partly to new cases issued after the stay has ceased.