29 July, 2020
Some of you might remember my briefing from a few weeks ago in relation to a proposed new Pre-Action Protocol. Well there is still no sign of that but what has now been introduced is a temporary Practice Direction (PD 55C), which requires landlords to 'reactive' their ongoing stayed possession claims and take additional steps before commencing any new possession claims from Monday 3 August 2020.
Essentially there are three types of Notice that come out of PD 55C. There is no prescribed form for any of the Notices but the Practice Direction sets out what needs to be included depending upon which scenario your case fits into.
The first scenario relates to any possession claims issued on or before 23 August 2020 that have been issued during lockdown but were immediately stayed and to any possession claims that were ongoing when the lockdown came into force and were subsequently stayed.
For these cases you are required to file with the court, and serve on the Defendant, a Reactivation Notice. This Notice need to specify whether you wish to have the claim listed, re listed, heard or referred to a judge under Civil Procedure Rule 55.15 (where no defence has been filed).
Where directions had already been given, you need to supply, with your Notice, the last court order giving directions and a draft order seeking additional / alternative directions.
If you don't need further directions, and can still utilise a hearing date provided, you need to provide a statement to this effect together with confirmation as to whether the case is suitable for a hearing via video or audio link.
If the claim includes a claim for rent arrears you need to attach a 2 year rent statement.
Lastly, and most importantly, you need to set out in the Notice your knowledge as to the effect the Coronavirus pandemic as has had on the Defendant and their dependants. Where you have no knowledge I would advice against simply stating this. Instead I would specify any steps you have taken to ascertain the effects that the Coronavirus pandemic has had on them and confirm if there has been no engagement.
The requirement for a Reactivation Notice does not apply to stayed claims brought on or after 3 August 2020 or stayed claims in which a final possession order has already been made.
If no Reactivation Notice if filed and served by 4pm on 29 January 2021 your possession claim will automatically be stayed. Importantly however, a stay is not a sanction for breach and an application to lift the stay is not an application for relief from sanctions.
The second scenario relates to cases in which the existing Pre-Action Protocol for Possession Claims by Social Landlords (PAP) applies, so rent and mandatory possession claims.
This Notice requires the landlord to confirm the steps taken to comply with the PAP and confirm their knowledge as to the effect the Coronavirus Pandemic has had on the Defendant and their dependants.
The requirement to serve this Notice only relates to claims brought on or after 3rd August 2020.
Importantly a copy of this Notice needs to be served on the Defendant 14 days before the re listed hearing and 2 copies of it need to be brought to the hearing.
Finally, the third scenario relates to all new and stayed possession claims brought on or after 3 August 2020, to which Section II of Part 55 applies. The Claimant must file, with its claim, a Notice setting out what knowledge it has, as to the effect of the Coronavirus pandemic on the Defendant and their dependants.
So with all new possession claims brought from Monday this Notice must be provided with the claim form and, as with the second scenario, a copy of this Notice needs to be served on the Defendant 14 days before the hearing and 2 copies of it need to brought to the hearing.
Strangely PD 55C will only come into force on 23 August 2020, when the government imposed stay on all possession claims come to an end, despite the requirement to serve a Notice in relation to all new claims coming into effect from Monday! PD 55C will cease to be of any effect after 28 March 2021.
The court must, unless it directs otherwise, give at least 21 days' notice to the parties of any hearing listed or relisted in response to a Reactivation Notice. However the court does not have to list any new claims for possession after 4 weeks and before 8 weeks, during this interim period, so until 28 March 2021. Clearly this is to alleviate the pressure on the courts that will no doubt be felt the minute we are able to reactive our stayed possession claims.
Clearly we are all going to be very busy indeed…..
For more information contact Sarah Savage in our Housing & Regeneration department via email or phone on 01772 220161. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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