COVID-19: The Second Extension to the Possession Stay

25.08.2020

As you will know, on Friday afternoon, in circumstances of great haste, the government announced that the possession stay was to be extended to 20 September 2020 (here). The rules making that extension have now been published (here) and come into force. In this bulletin Rosamund Baker considers their effect and the possible further developments to watch out for.

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 clerks@selbornechambers.co.uk) or any member of Chambers. Please rest assured that Selborne Chambers remains fully operational and very much open for business.

Mark Warwick QC

 

Civil Procedure (Amendment No.5) (Coronavirus) Rules 2020/889

The amendment giving effect to the extension of the possession stay is a very simple swapping of dates which came into force on 22 August 2020. In full, the text is:

  1. Amendment of the Procedure Rules 1998

In Part 55 of the Civil Procedure Rules 1998, in rule 55.29, in paragraph (1) –

  • for “22nd August 2020” substitute “19 September 2020”; and
  • for “23rd August 2020”, substitute “20 September 2020”.

Now therefore CPR 55.29 provides that all possession proceedings under Part 55 and all enforcement proceedings by way of writ or warrant of possession are stayed until 20 September 2020. The stay, as before, expires on a Sunday and so the first day back (bar further extension) will be Monday 21 September 2020.

Alongside the swapping of dates in CPR 55.29, the amendment also (in rule 3) swaps some of the dates in the Civil Procedure (Amendment No.3) Rules 2020. These swaps correspondingly delay the amendments to Part 30 and Part 83 which provide for District Registries to be the default venue on any transfer to the High Court for enforcement of a possession order within their area and for mandatory  notices of evictions respectively.

 

Consequences and Possible Further Developments

Just an Extension

This amendment makes no change to the substance of CPR 55.29. Accordingly, the case law that has built up around the possession stay, while it was CPR 55.29 or PD51Z, should continue to apply. (The reader should consult previous bulletins for discussion of such case law and of PD51Z and CPR 55.29.) The only new question is whether a challenge to the legality of the extension of CPR 55.29 will be forthcoming. Such a challenge to the legality of PD51Z was unsuccessful in Arkin v Marshall [2020] EWCA Civ 620 but obviously there will be different grounds and arguments in respect of this extension. Of course, it may be that the relatively short length of the extension will discourage any challenge but, given that there have already been 3 Court of Appeal cases on the possession stay, the possibility of further authority is there.

 

Practice Direction 55C

Moving to what happens when the stay is finally lifted, the announcement on Friday and the statutory instrument above did not make clear what would happen to PD55C and its scheme of reactivation notices. (The reader should consult the previous bulletin on PD55C for discussion of its full effect.) The practice direction and Rule 55.A1 came into force on 23 August 2020 as originally planned. However, the practice direction does appear to have been amended to reflect the extension so that it now applies ‘during the period beginning with 20 September 2020 (the end of the stay imposed by rule 55.29) and ending on 28 March 2020 (“the interim period”)”. Other than that, the provisions remain the same, including the deadline of 29 January 2021 for reactivation notices. Accordingly parties should continue as planned in respect of reactivation notices albeit that the all important date is (for now) 20 September 2020 rather than 23 August 2020.

 

Dealing with the Backlog

PD55C is not the only word on how the backlog of possession cases will be dealt with. In Friday’s announcement, it was said that “When courts do resume eviction hearings they will carefully prioritise the most egregious cases, ensuring landlords are able to progress the most serious cases, such as those involving anti-social behaviour and other crimes, as well as where landlords have not received rent for over a year and would otherwise face unmanageable debts.” The government is clearly envisaging that Ground 7A cases and serious rent arrears cases at least will be prioritised. A working group, chaired by Mr Justice Knowles, to deal with the resumption of possession cases had already been established and has been preparing for the lifting of the stay. It seems that the panel of judges appointed to deal with these cases (of which Ian Clarke QC of Selborne Chambers is a member) will be listing and hearing cases in accordance with their severity or nature as well as according to the chronological receipt of reactivation notices. It remains to be seen whether this policy will be effected by listing practice, case law, legislation or further amendment to the rules. Parties should be on the look out for any further clarification.

 

Another Change to Notice Periods

Of future interest is that Robert Jenrick MP, alongside announcing the extension, announced that “The government intends to give tenants greater protection from eviction over the winter by requiring landlords to provide tenants with 6 months’ notice in all bar those cases raising other serious issues such as those involving anti-social behaviour and domestic abuse perpetrators, until at least the end of March.”. Parliament returns on 1 September 2020 and the intention appears to be that notice periods will then be extended for section 8 and section 21 notices. Whether this is done by new legislation or an amendment to schedule 29 of the Coronavirus Act 2020 remains to be seen. Points to look out for are (i) what will happen to notices served since 25 March 2020 which provided 3 months’ notice as required by the amendments effected by schedule 29 of the Coronavirus Act 2020; (ii) whether the time limit on section 21 notices under section 21(4D) of the Housing Act 1988 will be lifted or amended; and (iii) what grounds in schedule 2 of the Housing Act 1988 will be subject to the new notice period.

The Civil Procedure (Amendment No.5) (Coronavirus) Rules 2020/889 are obviously not the last word on the possession stay and parties should be alert to any future announcements or case law. If the most recent announcement is anything to go by, change can happen at any time.

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