Reactivation of possession claims – Practice Direction 55C and what it means for your proceedings

Practice Direction 55C (‘PD55C’) came into force on the 23rd August 2020. It is a Practice Direction within the Civil Procedure Rules that provides temporary provision in relation to possession proceedings during the Coronavirus pandemic.

PD55C provides a temporary modification to Part 55 during the period beginning on 20th September 2020, which is the end of the stay imposed by rule 55.29 and ending on 28th March 2021 (‘the Interim Period’). Part 55 is the part of the rules relating to possession claims. Rule 55.29 provides that that all possession proceedings brought under Part 55 (and all enforcement proceedings by way of writ or warrant of possession) that are stayed immediately or brought after this rule came into force and on or before 19th September 2020 are stayed, until 20th September 2020. There are exemptions detailed in Rule 55.29(2) and it is noted that a claim can still be brought during this time but it may be stayed.

During the Interim Period, Part 55 has effect subject to PD55C. PD55C differentiates between ‘stayed claims’ – those being a claim which was brought on or before 19th September 2020 and which is accordingly subject to a stay imposed by rule 55.29 and ‘new claims’ which are claims brought after 19th September 2020.

Under paragraph 2.1, no stayed claim is to be listed, relisted, heard or referred to a Judge under Rule 55.15 until one of the parties files and serves a written notice (a ‘reactivation notice’) confirming that they wish the case to be listed, relisted, heard or referred. This mean that any claim brought on or before 19th September 2020 will not be automatically listed for a hearing once the stay is lifted – one of the parties needs to provide a written notice first. However, that does not apply to a stayed claim brought on or after 3rd August 2020 or in which a final order for possession has been made.

If you are serving a reactivation notice, it must confirm that the party filing and serving it wishes the case to be listed, relisted, heard or referred and (except in proceedings relating to an appeal) set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and any dependants. If the reactivation notice is filed and served by the Claimant and the claim is based on rent arrears, the Claimant must provide an updated rent account for the previous 2 years with the notice (except in proceedings relating to an appeal).

If you have had a trial date set prior to 27th March 2020, that trial shall be vacated and the case stayed unless a party complies with paragraphs 2.1 (reactivation notice), 2.3 (contents of the reactivation notice), 2.4 (providing an updated rent account) and 5.1 (directions requirements) not less than 42 days prior to the hearing date.

If by 4pm on 29th January 2021, no reactivation notice has been filed and served in relation to a stayed claim where paragraph 2.1 (reactivation notice) applies, that claim will automatically be stayed. Any application to lift a stay imposed where a trial has been vacated or a reactivation notice has not been served by the date set would not require a relief from sanctions application under CPR 3.9, as the stay is not a sanction for breach.

Where any hearing is listed or relisted in response to a reactivation notice, the Court must give at least 21 days’ notice to the parties (unless the Court directs otherwise).

Paragraph 4.1 of PD55C modifies Rule 55.5 during the Interim Period, so that it reads ‘(1) Subject to paragraph (1A), the court will fix a date for the hearing when or after it issues the claim form’ whereas it previously read that a date will be fixed when the Court issues the claim form. Paragraph (3)(b) which imposes the standard time period of 8 weeks between issue and hearing also does not apply during the Interim Period.

In a stayed claim where paragraph 2.1 (reactivation notice) applies and where case management directions were made before 20th September 2020, a party filing and serving a reactivation notice must file and serve with it:

• a copy of the last directions order together with new dates for compliance with the directions taking account of the stay and
• either a draft order setting out additional or alternative directions (including proposing a new hearing date) required or a statement in writing that no new directions are required and the hearing date can be met and
• a statement in writing whether the case is suitable for hearing by video or audio link.

If the other parties(s) do not agree with any of the proposals filed and served, they must file and serve a response within 14 days of service of the reactivation notice. If no party has complied with filing and serving matters in relation to directions by 4pm on 29th January 2021, the claim will be automatically stayed. As before, lifting such a stay would not require a relief from sanctions application.

In any new claims or stayed claims brought on or after 3rd August 2020, the Claimant must:

• Bring to the hearing 2 copies of a notice –

  1. In a claim 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 and

• Serve on the Defendant not less than 14 days prior to the hearing the notices referred to above.

In any claim brought on or after 3rd August 2020 to which Section II of Part 55 (accelerated possession claims of property let on assured shorthold tenancy) applies, the Claimant must file with the claim form for service with it a notice setting out what knowledge that party has as to the effect of the Coronavirus Pandemic on the Defendant and their dependants.

From the details set out above, it is clear that in the Interim Period, there are new requirements in relation to possession claims which landlords and tenants should be aware of before ‘reactivating’, issuing or defending any claims.

Specialist advice on possession proceedings can be obtained from members of Becket Chambers – please contact us at clerks@becket-chambers.co.uk for further information.