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Published On: July 31, 2020 | Blog | 0 comments

The Resumption of Possession Claims

A new Practice Direction 55C is being introduced in order to give new rules relating to the resumption of possession proceedings that have been stayed due to the pandemic. The Practice Direction comes into force on the 23 August 2020 and supplements the possession provisions set out under Civil Procedure Rules Part 55. However, the provisions under the new Practice Direction 55C are only a temporary modification of the rules until 28 March 2021.

What are the changes under Practice Direction 55C?

The Practice Direction requires one of the parties in the proceedings to file a reactivation notice to resume any possession claims that were stayed. The reactivation notice is only required for any possession claims that began before 3 August 2020. There are separate requirements for claims that are started on or after 3 August 2020.

The purpose of the reactivation notice is to provide the Court with information which it will require to manage the case. If no re-activation notice is filed the court will not list any hearings, allow existing hearings to go ahead or in case of an accelerated claim for possession for the case to be referred to a judge for a decision.

The reactivation notice can be served in the form of a letter as there is no prescribed form. However, the reactivation notice must inform the Court whether the party would like the case to be listed, relisted, heard or referred and set out what knowledge the party has to the effect the pandemic has had on the Defendant and their dependents. The requirement under this provision is not to actively seek this information from the Defendant but to provide any information about the effects of the pandemic on the Defendant that the other party may have. If the party applying to the Court with the reactivation notice does not hold any of this information, then this is what they will need to confirm to the Court.

In claims for rent arrears, the reactivation notice must also include an updated rent account for the previous two years. This requirement does not apply for possession claims based on other grounds. However, if the claim is based on more than one ground and has a rent arrears element then a rent account for the last two years should be filed with the reactivation notice at the Court.

The requirement to file and serve a re-activation notice in possession cases with case management directions/trial dates.

The requirement to file and serve a reactivation notice also extends to a claim where case management directions were made before 23 August 2020 or a trial date was set prior to the to 27 March 2020. The case will not progress in the absence of a reactivation notice and will remain stayed. Any trial dates listed will be vacated unless a party to the claim files a reactivation notice not less than 42 days prior to the trial date.  However, the earlier the reactivation notice is filed and served the better it will be to ensure that the trial date is not vacated.

In cases where there have been case management directions, a party must alongside the reactivation notice also file: a copy of the last directions order with new dates for compliance, and either a draft order setting out any new directions required or a statement confirming that no new directions are required and whether any existing hearing dates can be met. A statement to the Court will also be required to confirm whether the case is suitable for hearing by video or audio link. Therefore, parties should consider trying to agree any new directions before filing them with the Court with the reactivation notice. If agreement cannot be reached on any new directions, then the other party can file and serve a response. The response must be filed and served within 14 days of the reactivation notice.

If a reactivation notice is not filed by 4pm on 29 January 2021 then the claim will be automatically stayed, and an application to the Court will be required to lift the stay. The purpose of these requirements appears to actively encourage parties who seek possession to take steps by filing the reactivation notice before the 29 January 2021 and not rely on the Court to automatically relist matters. This of course will also help lift a strain on the Court resources as cases where a reactivation notice has not been filed will remain stayed.

Claims brought on or after 3 August 2020

The requirements for any claims brought on or after 3 August 2020 are different to the requirements set out above. In any possession claim brought on or after 3 August 2020 the Claimant must tell the Court anything they know about the effect of the pandemic on the Defendant and their dependants. This also applies to accelerated possession claims where the claimant is required to file a notice containing this information with the claim form.

The parties are also required to bring to the hearing two copies of a notice which sets out a) what knowledge they have in relation to the effects of the pandemic on the Defendant and their dependants and b) in claims where the Pre-Action Protocol for Possession Claims by Social Landlords is applicable to confirm whether they have complied with the protocol and how they have done so. These notices must also be served on the Defendant not less than 14 days prior to the hearing.

Anyone who is thinking of bringing a possession claim or has already brought a claim which has been stayed must comply with the above provisions. If they do not the claim could be stayed indefinitely.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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