The dual possession procedure - Recommencing Possessions Part II

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11 November, 2020

A new two-part possession procedure has been introduced by The Master of the Roles which is to ensure a smooth re-start to possession proceedings.

What does this mean?

A Review Hearing has been introduced, which will be followed on by the Substantive Hearing. These hearings have replaced the previous hearing namely First Possession Hearing.

What is a Review Hearing?

This hearing will be the first time the claim will come before a Judge post the Covid stay. It will enable the Court to review papers relating to any ongoing claims and check that everything is in order to ensure the matter is on track.

Unfortunately, the adding of this extra hearing into the procedure will also extend time in which the Court will determine the matter which in turn will increase legal costs and could add to the delay.

There is no Court fee payable for a Review Hearing

What will the Review Hearing entail?

The parties will not get before a Judge but the papers will. However, parties will be required to attend court, whether in person, telephone or by video. This will give parties the option to discuss matters and provides an opportunity to reach a compromise.

The matter will then go before a Judge. If the parties have reached a compromise or agreed directions then the Judge will draft an order. If no compromise or agreement has been reached then the Judge will consider the Claimant's bundle. If everything is in order then the matter will be listed for a Substantive hearing 28 days later. If the bundle is not in order then the Court can dismiss the claim.

Electronic Possession Bundle

This bundle needs to be filed 14 days before the Review Hearing electronically to the Court, but to the Defendant it needs to be sent in paper form and electronically if an email address has been given. There is some guidance on what needs to be included in the bundle. Time will tell how judges will want this bundle to be presented. As solicitors we will use our experience of the courts approach to bundles and presentation of evidence to ensure that we comply with the new rules regarding bundles and present your case in the best possible way.

Substantive Hearing

This is not to be confused with a trial or final hearing of the possession claim, it is very similar to the first possession hearing but is varied slightly. There is to be more emphasis on the parties to settle the claim, and for non-represented tenants to be receive legal advice from a duty solicitor. It will be listed for a slightly longer time of 15 minutes and an application to adjourn can be made without formal application but only where advice has not been available to the Defendant or a possession order may be serious in the context of the pandemic.

The matter should be decided at the hearing, but if for any reason the Defendant raises any form of Defence or the matter cannot be determined then directions will be made by the Court (e.g. the provision of witness statements), and a further substantive hearing listed.

What does this mean for Claimants?

An Email address for tenant will need to be provided at the onset of a case, if at all possible, in order to file the Hearing Bundle.

The Hearing Bundle will need to be filed correctly to ensure that the claim is not dismissed.

It is more important than ever to get legal representation to present the case at the review hearing. The legal hurdles to obtain possession have been substantially extended and it is now more likely than ever that possession claims will be dismissed on the basis of a small omission in the paperwork.

For more information contact Amanda Leach in our Dispute Resolution department via email or phone on 01254 222326. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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