The courts in England & Wales have announced a new update to the Civil Procedure Rules governing Possessions Proceedings. This comes into effect on 23 August 2020 and will continue to stay in force until 28 March 2021.

The first part of the new rules focuses on existing cases. These rules provide that, unless the court directs otherwise, no stayed claim is to be listed, relisted, heard or referred to a judge until one of the parties (which of course is bound to be the creditor) files and serves a written reactivation notice confirming that they wish the case to proceed again.  Lenders should immediately note, however, that this new requirement, including completion of the reactivation notice itself, does not apply to stayed claims in which a final possession order has been made.  Cases at this stage appear to be unaffected by the new rules.

The reactivation notice must confirm not only that the party filing and serving it wishes the case to be recommenced, but also must set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.  For lenders, it is therefore essential that they start to capture in a readily accessible way pandemic related information about customers and their families, if they have not already done so. 

The court must give at least 21 days’ notice to the parties of any hearing listed or relisted in response to a reactivation notice.  If the stayed case is one in in which case management directions were made before 23 August 2020, the party lodging reactivation notice must also 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 before 23 August 2020; and various other information about what, if any, additional or alternative directions are now required.

Finally, the new rules set out provisions for new claims and stayed claims brought on or after 3 August 2020, which of course will be highly relevant to lenders considering commencing proceedings after the FCA restriction period expires on 31 October 2020.  For these new claims, the creditor must of course comply with the pre-action protocol but must also set out what knowledge that party has as to the effect of the Coronavirus pandemic on the customer and their dependants; and serve on the customer not less than 14 days prior to the hearing notices which include this information. 

In summary, there are new requirements on lenders both in relation to continuing existing cases and for any brand new actions, which will mean that information must be provided to the courts about the effect of the pandemic on the customer and any dependants. 

If you would like to discuss further, please contact me, Mark Higgins, at mark.higgins@irwinmitchell.com or on 07795 504476.