On 5 June the Government announced the extension of the stay on housing possession claims until the end of August via a Tweet by Robert Jenrick, Secretary of State for Housing:

“We are suspending evictions from social & private rented accommodation by a further two months.  Eviction hearings will not be heard in courts until the end of August and no-one will be evicted from their home this summer due to coronavirus.”

This announcement led to two developments:

  1. On 11 June PD 51Z was extended in its current form until 30 October 2020; and,
  2. The Master of the Rolls formed a Working Party to develop the arrangements for the resumption of the possession claims subject to the stay.

The results  of the Working Party’s efforts came to light on 17 July when the Master of the Rolls and the Lord Chancellor brought into force the new PD 55C:

https://www.judiciary.uk/wp-content/uploads/2020/07/CPR-123rd-PD-Update-PD55C-SIGNED.pdf

This PD sets out the arrangements for the “reactivation” of stayed possession claims subject to the stay which includes claims issued up to and on 2 August.  It is, in the writer’s view, a distinctly pro-Tenant PD sensitive in its drafting to the fact a balance has to be drawn between the claims of Landlords owed rent and Tenants who may soon be redundant as the furlough schemes are rolled up.  It is therefore a much more political PD than any seen before perhaps rightly so.  The economic consequences of the Pandemic are just beginning to be seen.

On 23 July the Legal Aid Agency announced it has renewed its Housing Possession Court Duty Scheme (HPCDS) contracts (due to expire on 20 August) for 13 months and they will now expire on 30 September 2021 which is more welcome news.  Many tenants facing possession proceedings are amongst the least able to defend themselves for a wide range of reasons from acute poverty to mental and/or physical disability.  There are few issues where a solicitor’s advice and representation can be most desperately needed.  The LAA is to be congratulated for extending a vital lifeline in the HPCDS.

What support does PD 55C offer tenants facing resumed possession hearings?

These provisions are worth highlighting:

  • The PD only applies from 23 August until 28 March 2021 (“the interim period”);
  • Before any stayed claim is pursued one party must serve and file a “reactivation notice” indicating a desire to pursue the proceedings;
  • However, no reactivation notice need be served in proceedings commenced on or after 3 August;
  • If no reactivation notice is served and filed, in stayed claims, by either party on or before 4 p.m. on 29 January 2021 then the case becomes “automatically stayed”. Those with longer memories may recall the fun and games that were had over that very phrase when introduced into the County Court Rules, in a different context, in the early 1990s.  Plenty of satellite litigation may be enjoyed again; and,
  • Prior to any hearing a notice must be served specifying:
  1. in a claim (whether stayed or issued post 3 August) to which the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirming that the Claimant has complied with that Pre-Action Protocol and detailing how the Claimant has done so; and,
  2. in all claims: setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.

An interesting and carefully drafted set of arrangements.  However it is, perhaps, in the requirement for evidence about compliance with the PAP in claims by Social Landlords (i.e. Local Authorities or Housing Associations) for possession that, perhaps, the most socially important is to be found.  For in that PAP there is, as many will know, the following requirement:

Alternative dispute resolution

2.10 The parties should consider whether it is possible to resolve the issues between them by discussion and negotiation without recourse to litigation. The parties may be required by the court to provide evidence that alternative means of resolving the dispute were considered. Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored.

Although the statistics for the number of possession cases brought by Social Landlords are not readily available, as we showed in our recent White Paper (Breaking the Backlog and overcoming the Tsunami), the stay may affect up to 120,000 cases in the County Court.

Taken together this PD and recent decisions such as BXB v Watch Tower and Bible Tract Society of Pennsylvania & Ors [2020] EWHC 656 (indemnity costs against D for period after D’s refusal to engage in ADR) some kind of ADR should take place not only in Social Landlord possession claims but in every housing possession case.

In cases where Landlords, despite the adverse costs risks, persist in refusing to engage in ADR there is always Lomax v Lomax [2019] EWCA Civ. 1467 decided last August in which the Court of Appeal held that Neutral Evaluation could be ordered despite one party refusing to engage.  This was under CPR 3.1(2)(m) which provides the Court may exercise its powers of Case Management to:

“Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.”

If mediation is more appropriate then there is the helpful decision of Sir Geoffrey Vos in McParland v Whitehead [2020] EWHC 298 (Ch.) where in obiter he expressed the view (in para 42) that mediation may be capable of compulsion despite Halsey and expressly referenced Lomax.

Tenants and their Advisers now have the weapons to compel reluctant Landlords to use ADR to strike deals for unpaid rent which are flexible and sensitive to Tenants’ circumstances.

It is only by such means that the Tsunami of Litigation which is about to overwhelm the civil courts will be overcome.

Or will the Government extend the stay again, until 30 October perhaps, as PD51Z provides?

TONY N Guise is Director of DisputesEfiling.com and a Past President of the London Solicitors Litigation Association