As the legal response to the coronavirus pandemic continues to evolve, I am pleased to present another edition of Selborne Chambers’ weekly COVID-19 Bulletin. In this issue, Chris de Beneducci considers the recent announcement of an extension to the stay on possession proceedings. Chris sets that announcement in the context of the enormous backlog of civil proceedings, and also looks at current proposals for ways to manage the resumption of possession hearings.
Should you wish to discuss any of these topics, or raise any other queries, do not hesitate to contact either the clerking team (+44 (0)20 7420 9500 or email@example.com) or any member of Chambers. As ever, we remain fully operational and are very much open for business.
Mark Warwick QC
Stay on Possession Proceedings Extended: r.55.29 Replaces PD51Z
The coronavirus pandemic continues to affect all fields of litigation. For those involved in business and property work, the key recent development has been the extension of the stay on possession proceedings, which will now remain in force for a further eight weeks (i.e. until 23 August 2020).
This is the latest chapter in the stay’s already eventful existence. After coming into force on 27 March 2020, Practice Direction 51Z was swiftly amended on 18 April 2020 to specifically exclude trespass claims (albeit only against persons unknown). PD51Z has since had its legality (unsuccessfully) challenged in the Court of Appeal on 30 April 2020, as well as generating a further Court of Appeal hearing on 21 May 2020 regarding its application to appeals of possession orders.
Having had their fingers burned by using a Practice Direction to implement the stay, the Government and senior judiciary have now adopted a different method for its extension: when the stay imposed by Paragraph 2 of PD51Z ceases to have effect on 25 June 2020, a new CPR r.55.29 (“Stay of possession proceedings, coronavirus”) will immediately come into force.
The terms of r.55.29, which is introduced by the Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020, are broadly similar to those of PD51Z:
- r.55.29(1)(a) adopts and continues the PD51Z stay, while r.55.29(1)(b) also stays all Part 55 possession claims and all possession enforcement proceedings “brought after [25 June 2020] and on or before 22nd August 2020”.
- r.55.29(2) contains the exceptions to the stay: claims against trespassers under r.55.6; proceedings for an Interim Possession Order; applications for agreed case management directions; and claims for injunctive relief.
- r.55.29(3) confirms that Part 55 possession claims may still be brought during the stay (although no action will be taken on them).
- r.55.29(4) also confirms that time does not run “for the purposes of the application of any rule” to proceedings which are stayed under r.55.29(1). In addition, the Court is not required to notify the parties of the stay or its effect.
Whilst the stay imposed by PD51Z continues to serve an important public health function, the outlook for the resumption of possession hearings is not rosy. Even prior to the pandemic, the Ministry of Justice’s statistics for January to March 2020 revealed that Small Claims Track proceedings were taking on average 39.7 weeks from issue to trial, with Fast- and Multi-Track proceedings taking on average 59.6 weeks. Additionally, data released by HMCTS on 11 June 2020 showed that in the week ending 24 May 2020 (to take the most recent figures) the civil courts had completed 9,527 hearings, against a pre-COVID baseline of 14,815; had processed 19,359 applications, against a pre-COVID baseline of 27,652; and, perhaps most tellingly, had received 5,067 claims, against a pre-COVID baseline of 38,521. Plainly, there will be an enormous backlog of civil disputes.
In this regard, following recommendations in the Civil Justice Council’s “Rapid Review” of the impact of the pandemic on civil litigation, the Master of the Rolls has established a working group to address concerns about the consequences of unwinding the stay on possession proceedings.
The working group (described as “judiciary-led, cross-sector, task-and-finish” in the Government’s press release) will be steered by Knowles J, who is chair of the Civil Justice Council’s Access to Justice Sub-Committee. That gives some indication of the direction which the working group will likely take; certainly, a recurring theme among those consulted for the Rapid Review was the general unsuitability of possession claims for remote hearings (given the disproportionate number of vulnerable and/or technologically illiterate defendants in this area of law).
Of particular interest, respondents to the Rapid Review made the following suggestions for facilitating the resumption of possession hearings: (i) an enhanced Pre-Action Protocol (requiring landlords and lenders to demonstrate that pro-active steps have been taken to secure legal advice for tenants); and (ii) the temporary relaxation of mandatory “Ground 8” for Housing Act 1988 claims (which entitles landlords to recover possession where two months’ rent arrears have accrued).
It is therefore clear that we have not reached the end of the story for the stay on possession proceedings. Watch this space for further updates…