In the world of housing law last week we saw;
(1) The commencement of the Coronavirus (Emergency) Act 2020 late on 25 March 2020 providing that statutory tenancies would immediately be subject to a three month notice period, but explicitly excluding licences and contractual tenancies, and by implication trespassers.
(2) The Ministry of Housing, Communities & Local Government published a guidance note on 26 March 2020 indicating that the Master of the Rolls and Lord Chancellor had agreed that the court service would suspend all ongoing housing possession action for 90 days, with no exclusions. The guidance can be found here;
(3) At the same time, the Ministry of Housing, Communities & Local Government published its amended Prescribed Forms of Notice for Assured Tenancies (including s.8 and s.21 forms), having indicated in the Act that there would not be any need to amend these notices because they would be ‘read as’ amended for the duration of the ‘relevant period’ without actually amending any other legislation. The new Prescribed Forms can be found at;
(4) On 22 March 2020 and 25 March 2020 the Judiciary website was updated to include guidance on remote hearings, and the Civil Procedure Rules were amended to include a new Practice Direction relating to the recording of hearings, which can be found at;
(5) On 27 March 2020, we received a new Practice Direction in the form of PD 51Z supplementing the Civil Procedure Rules. The main changes effected by this PD are:
– All proceedings for housing possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from 27th March 2020.
– Claims for injunctive relief are not subject to the stay set out in paragraph 2 of the PD.
– The PD ceases to have effect on 30th October 2020.
The PD can be found at:
Some courts were quicker than others to adopt a remote working practice. Some courts were still requiring the parties to physically attend hearings well into mid-week. However, there now appears to be a universal adoption of the judicial policy that attendance is the exception not the norm.
The Civil Procedure Rules already provide a broad discretion to the court to deal with remote hearings;
CPR Part 39.9: “[a]t any hearing, whether in the High Court or the County Court, the proceedings will be tape recorded or digitally recorded unless the judge directs otherwise” and that “[n]o party or member of the public may use unofficial recording equipment in any court or judge’s room without the permission of the court”.
CPR Part 39.2(3)(g): hearings can (actually must) be held in private if the court is satisfied that it is, for any reason, “necessary, to secure the proper administration of justice”. In such a case, however, a copy of the court’s order to that effect must be published on www.judiciary.uk, “[u]nless and to the extent that the court otherwise directs”, and non-parties may apply to attend the hearing and make submissions, or apply to set aside or vary the order.
The court service has left the medium of communication largely up to individual judicial discretion, but envisages the use of BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. But any communication method available to the participants can be considered if appropriate.
There have been some challenges this week; here are a few from the writers’ own experience and how they were overcome;
(1) Litigants in person. In an injunction application where a notice of hearing had been issued some time ago, the court contacted the represented party and gave a choice: provide a telephone number for the litigant in person defendant, or have the matter adjourned. There was some very active engagement from the represented party to obtain that number and provide it to the court. The hearing will now proceed.
Solution: provide the court with the litigant in person’s contact details so that the judge can make a decision in advance as to the most appropriate medium for conducting the hearing.
(2) BT MeetMe. In this method, the parties have to dial into an 0800 freephone number provided by the court, and enter a specified number to get into the correct conference call. The writer was kept on hold for 90 minutes whilst the parties for two different matters were apparently before the same Judge.
Solution: expect BT MeetMe to accurately replicate a court waiting area with long waiting times. Representatives will need to manage the expectations of witnesses who are dialling in, and where possible use an alternative phone, so that you can continue to use your work phone whilst you are waiting.
(3) Skype (for business) and Zoom. For the purpose of managing many parties, the writer’s preference is Zoom – parties can be muted by the host, hands can be raised, boxes are highlighted according to who is talking, but it requires a stable internet connection and eats more broadband capacity than Skype. Skype on the other hand appears to be more stable on less broadband capacity which can be attractive if parties are struggling on home WiFi connections. Both platforms are intuitive and easy to use, but require parties and witnesses to have a smart phone and an internet connection.
(4) Telephone hearings are not immune to connection issues. In one hearing this week, Counsel for one party had such poor reception that his phone dropped out for a number of seconds. It is not clear whether the hearing, having started, could continue or would have to be adjourned as a result. Thankfully the caller’s phone had not dropped the call and the hearing was able to continue.
Solution: make sure you and all parties are seated in a place with a good phone connection.
(5) As more substantive hearings, including witness trials, will be heard in the coming weeks, paperless bundles will become essential. There is software that can help, including PDF Expert, Adobe Pro and Preview on the Mac.
Solution: find the software that suits you and your technology and make sure that you know how to use it before the hearing!
What about possession claims?
Whereas the Coronavirus (Emergency) Act 2020 does not provide for extended notices for licences or contractual tenancies, from 27 March 2020, the court service will suspend all new or ongoing housing possession actions for an initial period of 90 days.
Does this mean that landlords should not issue Notices to seek possession, or avoid issuing possession claims?
Not necessarily. There will be an inevitable backlog of possession claims which will mean that courts will have a lot of catching up to do when the emergency measures come to an end – and they will come to an end. But a reminder – if serving a Notice during the emergency period, landlords must make sure it complies with the requirements set out in the Act.
Landlords have an opportunity to catch up with those cases that have required more time and consideration before issuing. This period of time is an opportunity to get cases in good condition for issue at court ready to be heard in due course.
We are expecting a new Pre-Action Protocol to help guide us in the coming months to what is expected in advance of issuing a claim. It is likely that this PAP is going to be more onerous on landlords, and the likelihood of consultation with landlords is low. It may be prudent for landlords to get their claims issued as soon as possible where there are long standing problems with tenants.
What about disrepair claims?
The only words highlighted in bold in the guidance note dated 26 March related to the need for landlords to continue to comply with their repairing obligations. The guidance says as follows;
Landlords remain legally obligated to ensure properties meet the required standard – urgent, essential health and safety repairs should be made.
An agreement for non-urgent repairs to be done later should be made between tenants and landlords. Local authorities are also encouraged to take a pragmatic, risk-based approach to enforcement.
Many landlords and their representatives are now writing to tenants and their representatives seeking to agree a sensible way forward to suspend a period where damages would be payable if either party is unable to facilitate access due to COVID-19.
There are going to be very real practical considerations, and these should be explicit in correspondence to be used in evidence at a later date if necessary.
Landlords should remember that where a tenant is represented by a solicitor, correspondence should go through that solicitor in the first instance or, if that is not possible, the tenant’s solicitor should receive a copy of whatever is sent directly to the tenant and be updated with any agreement reached with the tenant directly.
There is similarly no relaxation of the obligation to carry out gas safety inspections. Landlords are recommended to plan in advance to arrange an inspection in good time. The regulations allow for an inspection window of 10-12 months after the previous inspection. Allowing a 2 month window to carry out the inspection may negate urgency of an access injunction after 12 months, and will also reinforce any subsequent application if one is necessary.