There is scope within the Direction for the stay to continue until 30 October 2020. It is perhaps unlikely that the stay will be extended all the way until then, this would be another five months and it is not apparent that deaths and infection risks due to COVID-19 will continue this late into the year. To prevent an unworkable backlog of cases it is likely that hearings will proceed remotely.
It is unclear at present whether the stay will be extended, deaths and infections due to COVID-19 have been falling for consecutive weeks but fears about a second wave of infections remain. If the stay continues it could, for example, be extended for a time period of around two months – this would be the middle ground – but as there is no guarantee that this will happen, parties to possession claims should be prepared for their cases to be revived, possibly at short notice.
If the stay is lifted, possession claims which have remained dormant for the last two months will be re-listed, potentially at shorter notice if the courts’ hearing lists are relatively empty. Eviction warrants will be enforceable and this is likely to have an impact on the amount of homeless applications made. New claims will also be issuable.
The courts, housing lawyers, court duty advisers and local authority homeless teams are likely to be very busy in the months following the lifting of the stay. The Legal Aid Agency is also likely to find itself faced with a sudden flood of applications for funding to represent clients at hearings.
It is not clear exactly how hearings will go ahead and when there will be a full return to hearings in person or whether a staggered approach would be taken to minimise social contact, consisting of a mixture of remote and face to face hearings. Under the Civil Procedure Rules, the court can use its case management powers to order that hearings take place via phone or Skype and this appears likely to continue following the lifting of the stay.
Current indications are that hearings will take place remotely, as early as the end of June. Tenants who have received possession notices, possession orders or warrants should consider seeking legal advice as soon as possible when the stay is lifted or when they receive notification that their matter has been revived.
Parties may also be expected to correspond more than usual in an effort to resolve matters as it will probably not be possible to negotiate face to face outside the court on the day of the hearing. Similarly, documents filed shortly before a hearing are much less likely to reach the court.
One key point to note is that the Housing Possession Court Duty Scheme in its current form is unequipped to provide remote advice and this must be addressed to ensure that tenants unable to obtain legal advice before their hearing are not left unrepresented.
If the stay is extended then it would be a good idea for parties to possession claims to discuss the matter and agree to extend any relevant dates or deadlines, by consent order if needed. As held in Grant v Dawn Meats, the stay operates as a freeze on proceedings and all related directions. Neither the court nor the parties are entitled to waive the stay, confirmed recently in Arkin v Marshall.
Where a hearing or step in proceedings appears shortly after the end of the stay, parties may wish to consider agreeing to vacate as it is not likely to be a productive use of court time for a hearing to go ahead where parties are unprepared and no progress can be made.
The pandemic has disrupted basic services on an unprecedented scale, resulted in many losing their source of income and has necessitated a sudden adaptation to a different way of life which will have a particular impact on those with vulnerabilities. Where possession is sought on grounds linked to these issues there may be scope for interesting and novel legal arguments to be put forward.