A tale of two hearings: the dual possession procedure – Recommencing Possessions Part II

In this article, Katrina Mather and Laura Tweedy explain the new two-part possession procedure introduced by the Master of the Rolls in the Overall Arrangements document (“the OAs”), which was published to enable the smooth re-start of possession proceedings, following the halt as a result of the Covid-19 pandemic. Also considered is the introduction of the electronic possession hearing bundle and how that may have a significant impact on the progression of your case.  

On 27^th March 2020 all evictions were suspended and on-going possession claims stayed (save for very few exceptions). This hiatus continued until 20 September 2020, when, finally, after much toing and froing, possession proceedings were allowed to recommence. Of course, there was a significant backlog and a significant number of cases ready to be issued, so the potential for possession hearing chaos was quite real. So came the judiciary’s attempt to bring some calm to the storm by introducing the OAs. In Part 1 of this article series we summarised the key changes introduced by the OAs. Laura Tweedy and Morayo Fagbourn-Bennett have also produced a note covering the changes to notice requirements, the new Part 81 and reactivation notices. In part II of our article we focus on the new two-part possession system.

The two-part possession hearing

The OAs introduced, for the first time, the concept of the “Review Hearing” followed, on a later date, by the “Substantive Hearing”.  These hearings replace what practitioners previously knew as the “First Possession Hearing”. This is set to significantly shake up the way possession claims work.

The Review Hearing

This hearing will be the first time the possession claim comes before a Judge post the Covid stay. This makes sense for on-going claims stayed due to Covid, as it enables the court to have a look at the papers and check that all is in order to properly get the matter back on track. Sadly, for new possession claims it adds an extra hearing into the mix, thereby extending the time before the court will finally determine the matter and increasing legal costs. There is no extra court fee is payable for the Review Hearing but there does not seem to have been any change to fixed recoverable costs. Presently it is unclear as to whether the courts will view this new procedure as negating the fixed costs regime. Given the general reluctance to order costs in excess of fixed costs even where they do not strictly reply, it seems unlikely.

At the Review Hearing, the parties will not get before a Judge; the case will, on the papers, but not the parties. Nevertheless the parties will be required to attend court, whether in person or telephone or by video. The theory behind this is that it will give the parties a focused point in time to discuss the matter and hopefully provide a structured opportunity to try to reach a compromise.

The case will be listed before the Judge for 5 minutes, right at the end of the day – so likely sometime between 3.30pm and 4pm. If the parties have been able to reach a compromise or agree directions before then, the Judge will take a draft order as and when provided to the Usher/Court Clerk and make an order.  Even upon agreement the parties do not get before a Judge.

If the parties have not compromised or agreed directions, the Judge will consider the Claimant’s bundle. If that is in order, the matter will be listed for a “Substantive Hearing” 28 days later.

If the Claimant’s bundle is not in order, the court “can be expected to” dismiss the claim (with liberty to apply for reconsideration at an oral hearing) or give directions. It is rather worrying for Claimants that the court is being guided to use such draconian powers especially where the exact requirements for the contents of the bundle are not at all straightforward or particularly clear.

The Electronic Bundle

The OAs introduce the all-new electronic possession bundle (“the Bundle”). That requires as follows:

• 14 days before the Review Hearing the Claimant must file the Bundle electronically at court;
• Sadly, it does not go on to allow the Bundle to be sent only electronically to the Defendant. It instead requires a paper bundle to be served “with an electronic copy in addition where the Defendant is able to receive that”;
• This means the Claimant will have to produce both a paper bundle and an electronic one;
• The Bundle must contain the following:
  • “All required material”;
  • The enhanced information (regarding the impact of Covid) about the Defendant;
  • Confirmation that the Defendant has been sent the Bundle;
  • Confirmation that the Bundle contains all the required material including the enhanced information about the Defendant;
  • Confirmation that the Claimant will be available on the date of the Review Hearing to discuss the case with the Defendant or Duty Advisor (together “the Confirmations”).

The OAs do not state what “all required material” is. However, we can take an educated guess that the following should be included:

• Claim Form;
• Particulars of Claim;
• Relevant notice;
• Rent statement;
• Tenancy agreement;
• Witness statements;
• Certificates of Service;
• Previous orders;
• Relevant correspondence between the parties;
• The Confirmations;
• A draft order would also be helpful; and of course
• The enhanced information

Below we explain some of the more uncertain and tricky aspects of the Review Hearing and have provided practical solutions to consider.

The Claimant being available by telephone is sufficient to satisfy the Confirmations, although in-person attendance is permitted (whilst remembering that the parties will not get before a Judge). Where lawyers are involved, parties may choose to send the lawyer to court, or have them available on the telephone as well. It will not be necessary for the Claimant and their lawyer to be together, but there must be an easy quick communication channel available on the day of the Review Hearing.

At present, it is unclear as to how the court expects the parties to be in communication and or available to speak throughout the day. There is no suggestion that the court will be supplying telephone or video conferencing details to the parties and their representatives. Further, availability throughout the day on the part of the claimant and / or their representatives will be essential where the defendant is reliant on a duty adviser who will have numerous matters to deal with on any given day. We also foresee difficulties in communication and negotiating with unrepresented defendants who do not take advantage of the duty advice scheme and have not otherwise been in touch with the claimant or their representatives. We will almost certainly get a better sense of how these logistical issues will affect parties and hearings over the coming weeks and hopefully find some practical solutions.

With regards to when the Bundle must be sent, the OAs do not state “no later than 14 days”.  Instead it states that the Bundle must be “provided” 14 days in advance of the Review Hearing. We have yet to uncover whether Judges will be sticklers for the exact date of receipt by the court, or whether some leeway will be given. Likewise, it may be that relief from sanctions applications will be required where the Bundle is late, but we do not yet know how strict the court will be. Clients are at present best advised to send the Bundle exactly 14 days before the Review Hearing. While it may appear overly cautious, if the bundle is filed and served less than 14 days in advance, it would prudent to file an application for relief from sanctions as there will not be an opportunity to make submissions before a judge.

The Bundle must include the enhanced information and as such the Claimant will be required to source this information well in advance of the 14 days before the date on which the Bundle is required by the Court. The enhanced information must set out what knowledge the Claimant has as to the effect of the pandemic on the defendant and dependants. It may be tricky in practice to obtain this information. If no such information is forthcoming and the Claimant genuinely does not know the Defendant’s circumstances, this should be explained, as well as the steps taken to find out the enhanced information.

The OAs state “with a paper bundle to be allowed as an alternative” for the Court. It is not clear when this alternative will be permitted, as no further guidance is given, but we imagine it will depend on the particular Judge whether or not the Claimant will be questioned or criticised for providing a paper, rather than electronic bundle. Although, as the parties do not get before the Judge, how this criticism will come to fruition remains to be seen.

Practically, in order to send to the Defendant an electronic bundle, the Claimant must have an email address, or send it on memory stick or other device to the Defendant’s address. Claimants are now best advised to obtain the email address for Defendant’s to allow the Bundle to be sent this way.

The Substantive Hearing

The Substantive Hearing is not to be confused with a trial, or final hearing of the possession claim. It is similar to what used to be the first possession hearing but with these key differences:

• There will be more emphasis on the parties to try to settle the claim;
• It will be listed for a longer time: 15 minutes;
• An application to adjourn can be made without formal application and should be expected where: (a) advice has not yet been made available to the Defendant or (b) the consequences of a possession order may be serious in the context of the pandemic.

All parties are required to attend, although it may be that some are able to attend via telephone or skype. In a similar vein to the first possession, if the matter is able to be decided at that hearing, the court will do so, but as we all know that is rare and, if a Defendant raises any sort of Defence, or the matter cannot otherwise be determined, the case will be put off with directions.

Illustrative timetable

 The OAs suggest that the following would be a typical case timetable:

Whether the above bears into fruition and how the court system, lawyers and litigants cope with this new procedure is yet to be seen but it will certainly be an interesting few months as the system is stress tested.