It’s all change: the new Practice Direction 55C and MHCLG Guidance Update

Due to come into force on 23 August 2020, the Civil Procedure (Amendment No.4) (Coronavirus) Rules 2020 (SI.No.751/2020) propose an amendment to Part 55 of the Civil Procedure Rules 1998 (‘the CPR’).

The rules will form the new Practice Direction 55C (‘the PD’) and are intended to assist with the transition between the stay of possession claims (initially imposed by Practice Direction 51Z and thereafter under CPR 55.29) and the resumption of the same. The new rules have several key changes and will apply to all possession proceedings, albeit their application to ‘stayed claims’ versus ‘new claims’ differs slightly.

Stayed Claims

For stayed claims brought before 3 August 2020, where no possession order had been made before the stay, unless directed otherwise by the court, no stayed claim will be listed, relisted, heard or referred to a judge 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.

A reactivation notice must:

1. confirm that the party filing and serving it wishes the case to be listed, relisted, heard or referred; and
2. except in appeal proceedings, set out what knowledge (if any) that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.

Except in appeal proceedings, where a reactivation notice is filed and served by the Claimant and the claim is based on arrears of rent, the Claimant must provide with the notice an updated rent account statement for the previous two years.

Any trial date set before the stay came into force on 27 March 2020 is vacated and the claim stayed unless a reactivation notice, updated rent account and updated draft directions (see below) are filed and served not less than 42 days before the hearing. If no reactivation notice is filed by 4pm on 29 January 2021, the claim is stayed automatically. But this further stay is not a sanction for breach, so any application to lift the stay does not have to meet the CPR 3.9 conditions for relief from sanction.

For a stayed claim where case management directions had been made before 23 August 2020, any party filing and serving a reactivation notice must also file and serve:

1. a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 23 August 2020; and
2. either:
   • a draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or
   • a statement in writing that no new directions are required and that an existing hearing date can be met; and
3. a statement in writing whether the case is suitable for hearing by video or audio link.

Any reply by the other party must be within 14 days of service of the reactivation notice. If this has not been complied with by 29 January 2021, the claim will be automatically stayed (but there is no sanction for breach as above). Any relisted hearing must be on at least 21 days’ notice to the parties. Paragraph 4.1 removes the eight week period for listing a first hearing in CPR 55.5 so the courts will be entitled to list the hearing at any period after the issue of possessions proceedings.

New Claims

In any claim (whether a new claim or a stayed claim) brought on or after 3 August 2020, the Claimant must:

1. bring to the hearing two copies of a notice:
   • 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
   • 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
2. serve on the Defendant not less than 14 days prior to the hearing the notices referred to above.

In any claim (whether a new claim or a stayed claim) brought on or after 3 August 2020 which is an accelerated possession claim, 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.

It is currently intended that these arrangements will be a temporary measure, until at least 28 March 2021, with a facility to review their application in the interim.

For further information about this, please contact Lee Russell in our Housing Management and Property Litigation team.