Practice (Direction 55C) makes perfect?

31 July, 2020

First came Practice Direction 51Z; then Practice Direction 55.29; and now (drum roll please) Practice Direction 55C (“PD 55C”).  PD 55C comes into effect on 23 August 2020 and ends on 28 March 2021.  This means that the stay that is currently in place in respect of all possession proceedings will come to an end on 23 August 2020.

This is welcome news for landlords as they will be able to get their possession claims back on track.  However, there may not be cause for too much celebration yet as PD 55C also paints a picture of delay and imposes more obligations on landlords than usual.

Usually, under CPR 55.5, a possession hearing much be listed no later than 8 weeks after the claim has been issued.  Unfortunately, this will not apply whilst PD 55C is in force.  Landlords will also be required to jump through extra hoops than normal potentially costing them more time and money.  Different requirements apply depending on when the possession claim was first issued.  In relation to a possession claim brought before 3 August 2020:

  • Either party (although most likely the landlord) must serve a “reactivation notice” stating that they wish the case to be listed for a hearing;
  • The landlord must provide any relevant information about the tenant’s circumstances including information on the effect of the pandemic on the tenant and their dependants, which will enable the court to have regard to vulnerability, disability, the social security position, and those who are “shielding”;
  • Where the claim is based on rent arrears, the landlord must also provide an updated rent account for the previous two years;
  • Where case management directions were made before 23 August 2020, a copy of the last directions with new dates for compliance, a draft order for new directions with a new hearing date or confirmation that the existing hearing date can be met, and a statement saying whether the case is suitable for remote hearing, must be filed with the reactivation notice.

Once the relevant requirements above have been met, the Court will list a hearing but it must give at least 21 days’ notice of any hearing listed or relisted in response to a reactivation notice.  If no reactivation notice has been served by 29 January 2021, the claim will be automatically stayed.

For possession claims (new or stayed) brought on or after 3 August 2020, the landlord must serve on the tenant and the Court before and produce at the hearing, a notice setting out the knowledge that they have as to the effect of COVID-19 on the tenant and their dependants.

The Government says it wants to protect all those involved in possession proceedings when cases resume and to ensure that the civil justice system is “accessible, fair and efficient” (although some may question whether it has been “efficient” for a long time).  It wants possession proceedings to be handled in a sensitive and proportionate manner given the public health implications of Covid-19 and the need to prevent homelessness.  This is of course understandable in the grant scheme, however, for landlords that issued possession proceedings based on mandatory grounds (especially those based on rent arrears) at the beginning of the year, I doubt this news will be received well or feel “fair”.

Considering courts such as Central London County Court were already suffering from severe delays when it came to possession proceedings, it could be a very long time before landlords will obtain their coveted possession order.