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26 March 2020 | Comment | Article by Bethan Gladwyn

The courts, possession claims and COVID-19

Whilst the rest of the UK has been making swift and radical changes, due to COVID-19 Coronavirus, to the way in which we work and live to ensure compliance with the government’s latest advice, it is fair to say that the court system has been slow to respond. It has been very much business as usual. There have been calls, particularly from The Bar Council and those who operate duty solicitor schemes for the courts to do more to help prevent the spread of the COVID-19 Coronavirus and to protect the health of all court users, staff, judiciary and the legal profession. Since the Prime Minister briefed the nation, further announcements have been made regarding the Magistrates courts and jury trials but the position with Civil courts remains unchanged and is detailed below.

On 18 March 2020 the government announced emergency legislation which would:

  • Stop any new possession claims (social and private tenancies) being issued at court for the next three months.
  • Introduce a new pre-action protocol for possession claims, to apply after the three months (or whenever) which will apply to private as well as social tenancies to strengthen its remit and to “support the necessary engagement between landlords and tenants to resolve disputes and landlords will have to reach out to tenants to understand the financial position they are in”.

Mortgage payment holidays

The three month mortgage payment holiday will now also be extended to buy-to-let mortgages and it will be for landlords and tenants to work together to establish repayment plans.

Rent possession claims and notice periods

The bill has now been released, and in fact what it does is to alter the period of notice for all types of tenancy to three months. So all notices seeking possession, Section 21 notices, notices served under Section 83 of the Housing Act 1985, notices served upon demoted tenants, flexible tenants and introductory tenants served from when the bill becomes law (which will be very shortly) until 30 September must be for a minimum period of three months. The Bill also allows subordinate legislation to be passed to extend the 30 September date, and to lengthen the notice period further (up to six months) should circumstances require it.

The notice period will be three months whatever the grounds or reasons for seeking possession are.

So there is no actual bar to issuing possession proceedings, either in relation to notices which have already expired or notices served now and expiring within this period. How the court receives such claims at this time remains to be seen.

Civil and Family Courts

On 19 March 2020 a message was released from The Lord Chief Justice to judges in the civil and family courts.

Generally, the message is:

“The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely. That will not always be possible. Sensible precautions should be taken when people attend a hearing. They are now well-known. We all take them when out of the home”

Easier said than done you may think where the majority of tenants are litigants in person (“LIP”). The advice when dealing with any LIP is that it is very unlikely that a telephone hearing would work if a litigant in person is:

  • homeless;
  • chaotic because of alcohol or drug use;
  • has learning disabilities;
  • has significant mental health issues;
  • or has other needs or disabilities which would militate against telephone hearings.

And the LCJ has said:

“We expect the full co-operation of the legal profession to facilitate telephone hearings as hitherto. Indeed, the professions willingness to be imaginative in the use of remote technology is clear from discussions I have had with the President of the Law Society and Chair of the Bar Council.”

Trials and hearings involving live evidence

As for trials the advice is:

“The Rules allow evidence to be received by telephone, video-link etc.

It may be difficult to maintain trials and final hearings in the short term, not least because of the inability of people to participate at all. As events develop individual decisions on priorities and practicalities will have to be made. The message is to do what can be done safely

Civil and Family court business must be sensitive to other priorities for people’s time. Many people are in critical jobs (e.g. NHS, Police) and will need to be elsewhere.”

Work within the court is to be prioritised.

Possession proceedings

Suspension of warrants, injunctions and committals will all be priorities and as for possession claims the advice is:

“Block listing of possession claims is inappropriate at this time because it would be difficult to maintain appropriate social distancing.

Judges dealing with any possession claim during the crisis must have in mind the public health guidance and should not make an order that risks impacting on public health

Reference was also made to emergency legislation that will be brought in and noted that applications to suspend warrants of possession should be prioritised.”

The LCJ has noted that applications for injunctions and committals are unlikely to be suitable for a telephone hearing and urges the court and legal professionals to make suitable arrangements for the safe hearing of these applications. It would seem to us that without a notice, application for an injunction can be dealt with on the papers or by telephone, but it’s the return hearing that could pose more of a problem. Although providing you have a contact telephone number for the defendant arrangements can be made. Process servers will still be operating and adhering to social distancing measures.

Committals are unlikely to be able to proceed without an actual court. It may, however, be that those who have been arrested could be dealt with via Skype if there are facilities available in the police station.

Telephone and video conferencing

Later, on 19 March 2020, guidance was issued by HMCTS advising that Skype for business had been installed on all staff and judicial laptops and it was anticipated that hearings should take place via Skype where possible.

Essentially, the advice is to be sensible and pragmatic. Avoid attending court where you can and make whatever alternative arrangements are possible to minimise physical presence in court. During these times, it is likely the courts are going to be more prepared to deal with matters on the papers where they can. If something can be adjourned then consider doing so. The court will still be prepared to hear applications to suspend warrants, where landlords take the view there is good reason for a warrant to proceed. And for serious anti-social behaviour (ASB) matters, injunctions are still there and will be prioritised, as will committals. The housing management team at Hugh James is and will continue to be fully operational including attendance at court when required.

If you need help or guidance on the pressures you are currently facing as a result of the COVID-19 Coronavirus outbreak, please get in touch with our housing management team.

Author bio

Bethan Gladwyn is head of the housing management team as a result of her capability and specialist knowledge in her field of law. A specialist in social housing law and practice, anti-social behaviour and landlord and tenant (residential), Bethan assisted in setting up Wales’s first anti-social behaviour unit at Hugh James.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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