Covid-19
Covid-19
We have kept the information below which is now largely historical, purely for reference for the time being
Where are we up to?
As at 1st December 2021:
- Practice Direction 55C – Coronavirus: Temporary Provision in Relation to Possession Proceedings which contained some temporary modifications to CPR 55 during an “interim period” came to an end on 30th November 2021
- The Overall Arrangements for Possession Proceedings for England and Wales which was introduced on 17th September 2020 to provide a model of review dates and substantive hearings following the resumption of possession proceedings came to an end on 1st November 2021. On 3rd November 2021 Sir Geoffrey Vos MR made an announcement in which he said that:
The procedures to be followed for the future are those set out in Rules and Practice Directions. The informal guidance published in the “Overall Arrangements” document should no longer be viewed as governing or guiding court procedures, which are properly contained in Rules and Practice Directions or listing policies which are a matter for Designated Civil Judges to decide in the light of local conditions.
A brief summary
The Government's response to the impact of the coronavirus on possession claims, and the administration of justice generally, has led to a sequence of announcements and amendments. Even for seasoned practitioners, these have been difficult to keep up with.
On 26 March 2020 a new, temporary Practice Direction 51Z was introduced to stay for a period of 90 days all proceedings for possession under CPR 55 and all proceedings to enforce an order for possession by a warrant or writ of possession.
The Practice Direction was amended on 20 April 2020 and was the subject of a number of Court of Appeal decisions which are referred to in the Monthly Updates.
On 25 June 2020 the Practice Direction was replaced by a temporary amendment to CPR 55, by inserting a new rule 55.29 which initially imposed a stay until 23 August 2020 and further rules made provision for the introduction of a temporary Practice Direction 55C to run for an interim period from the end of the stay until (as amended) 30 July 2021.
Separate rules made alterations to some of the enforcement provisions in CPR 83.
After the DHCLG extended the ban on evictions for a further 4 weeks, the rules were amended again by further amending CPR 55.29 to extend the stay until 20 September 2020, and by further amending some of the dates in Practice Direction 55C and CPR 83.
So what happens now?
The stay imposed by the new temporary CPR 55.29 came to an end on 20 September 2020.
The amendments to the new Practice Direction 55C which came into force on 23 August 2020 (and which have been successively extended ) make arrangements to deal with stayed claims and new claims in the period 20 September 2020 to 30th November 2021
(referred to as 'the interim period'). The arrangements are complicated:
Section 1 contains some introductory provisions and definitions. A 'stayed claim' means a claim which was brought before 19 September 2020 (including an appeal from a decision in such a claim) and which is accordingly stayed under CPR 55.29. A 'new claim' means a claim brought after 19 September 2020.
2. Reactivation Notices
Under para 2.1 no stayed claim can be listed, relisted or heard until one of the parties files a reactivation notice confirming they wish the case to be listed, relisted or heard (the separate references to referrals to the judge under CPR 55.15 do not apply to mortgage cases).
Under para 2.2 this does not apply to a stayed claim which was brought on or after 3 August 2020 or in which a final order for possession was made. Para 2.3 sets out what a reactivation notice must contain (para 2.4 refers only to rent claims).
Para 2.5 provides that unless the court orders otherwise, any trial date set prior to 27 March 2020 shall be vacated and the case stayed unless a party complies with paras 2.1, 2.3, 2.4 and 5.1 not less than 42 days prior to the hearing date.
Under para 2.6 if no reactivation notice has been filed and served by 4.00pm on 30th April 2021
the claim will be automatically stayed.
Para 2.7 provides that a stay is not a sanction and an application to lift the stay is not an application for relief from sanctions.
3. Listing
Under para 3.1 the court must (unless it directs otherwise) give at least 21 days notice to the parties of any hearing listed or relisted in response to a reactivation notice.
4. Where no hearing listed
Para 4.1 provides for certain modifications to CPR 55.5 to apply in the interim period, where no hearing has been listed.
5. Stayed claims where case management directions have been given
Under para 5.1, in a stayed claim to which para 2.1 applies and in which case management directions were made before 20 September 2020, a party filing a reactivation notice must file and serve it with (a) a copy of the last directions order together with new dates for compliance taking account of the stay before 20 September 2020; and (b) either (i) a draft order/directions with a proposed new hearing date; or (ii) a statement that no new directions are required and that an existing hearing date can be met; (c) a statement whether the case is suitable for hearing by video or audio link.
Under para 5.2, if the parties are unable to agree on any of the matters in paras 5.1(a), (b) and (c) they must file and serve a response within 14 days of service of a reactivation notice.
Under para 5.3 if no party has complied with para 5.1 by 4.00pm on 30th April 2021, the claim will be automatically stayed.
Para 5.4 provides that a stay is not a sanction and an application to lift the stay is not an application for relief from sanctions.
6. Provision of information
Para 6.1(a)(ii) requires that in any (mortgage) claim brought after 3 August 2020 the claimant must bring to the hearing two copies of a notice setting out what knowledge that party has as to the effect of the coronavirus pandemic on the defendant and their dependants, and (b) serve the notice on the defendant not less than 14 days prior to the hearing.
Claimants in mortgage possession claims are reminded to bring two completed copies of Form N123 (pre-action protocol checklist) to the hearing.
Reactivation notices
On 15 September 2020 HMCTS
published practice forms of Reactivation Notices with a number of other guidance notes. See the September 2020 update.
Resuming hearings
On 17 September 2020 the Master of the Rolls issued a statement on the resumption of possession cases
on 20 September 2020.
The statement provides a brief Guidance Note to civil judges on listing priorities and a detailed 'Overall Arrangements' note. However, these arrangements ceased to have effect from 1 November 2021
so that possession proceedings are to be governed solely by the CPR and Practice Directions and listing policies determined by the Designated Civil Judges.
CPR 83
The Civil Procedure (Amendment No. 3) Rules 2020 (in force 17 July 2020) introduced a temporary ban on evictions until 24 August 2020. It also (1) brought in a new CPR 83.8A which introduced a requirement for a notice of execution of writs and warrants of possession, and (2) substantially amended the existing CPR 83.13. These rules have now been amended by The Civil Procedure (Amendment No. 5) Rules 2020 to come into effect on 20 September 2020.
What about the Financial Conduct Authority?
The FCA has published guidance both for consumers and firms which it has updated on a number of occasions throughout 2020/21. The guidance addressed a range of issues about payment difficulties during the pandemic, and stipulated that firms should not enforce possession orders before 1st April 2021.
On 25th March 2021 the FCA published updated Guidance which now gives the green light to lenders to commence, or continue, repossession proceedings after 1st April 2021.
Where to find help and advice?
There are various sources of advice and assistance about managing mortgage payments during the pandemic, and most lenders also have a dedicated page, so please check with your lender first.
Incidentally, on 12th February 2021 the House of Commons updated a briefing paper entitled 'Mortgage Arrears and Repossessions (England)' which outlines the temporary measures available to assist homeowners to manage their mortgage payments.