London courts have issued a consultation on arrangements for when possession claim start up again when PD51Z is lifted.

With help from our friends and Law Centres Network we have prepared a response text (below) which can be used to respond to the consultation specifically in the London county courts. It is designed to meet the London courts consultation documents.  Please feel free to cut and paste this response.  If you add to or amend please do not attribute it to HLPA.

If your local court is outside of London then they may have their own consultations going on or you may simply want to write to them adapting the text below if you think it is useful and reflects your views – but please bear in mind that this text is to respond to the London consultations.

You can find the court contact email at https://courttribunalfinder.service.gov.uk/search/


 

Response to Consultation – “Arrangements for listing Possession Claims at this Court After 25 June 2020”

Preliminary point

Although the stakeholder letter of the 21st May 2020 invites views on the proposals for resuming possession hearings, we do not recognise the basis for proceeding with cases without the HPCDS being in place. We are aware that contemporaneous discussions have taken place with the MoJ and, although no decisions have yet been made, proceeding with possession cases without the HPCDS in place form no part of this.

Your numbered points

  1. We see considerable difficulties for a significant number of tenants in being able to adequately manage remote hearing by telephone or video technology. We refer to the evidence produced by Housing Law Practitioners’ Association in Arkin v Marshall available to view at www. etc and in particular please see http://www.hlpa.org.uk/cms/2020/05/arkin-v-marshall-pd51z/. The same difficulties will not in general be faced by landlord representatives.
  2. It is without doubt that there will be significant difficulties in tenants being able to manage arrangement of this kind.  If a hearing was to proceed remotely we do not think that a judge could adequately assess many of the cases that come before her or him  in half an hour, assuming (as you do) that there will not be a duty adviser to assist. The judge could dispose of cases in half an hour but that is not the same of properly hearing cases in half an hour with all the usual difficulties of benefits and vulnerabilities plus the overlay of Covid-19 related difficulties.
  3. See “2” above
  4. See “2” above

a. what happens if you don’t get them? Is that a “non-attendance” and therefore the claim will be considered “undefended”?  We regard that as unconscionable.

b.we refer to the evidence in Arkin v Marshall for evidence of the intense difficulties faced by advisers and tenants in complying with directions at this time

c. welcome, but there are simply not the resources currently for this to be fulfilled

d, it is not acceptable for housing possession lists to proceed without duty advice.  The government has spent the last few years formalising the duty scheme.  It did so because the duty scheme is necessary in order that possession lists approach some measure of fairness.  In the current crisis in which tenants are likely to be the most affected group of people, the need for duty advice and assistance is greater than ever. Many tenants are often unrepresented because of the lack of legal aid solicitors and the inability to privately pay. The Duty Scheme is a safety net, providing them with some vital access to legal advice at the point at which they may lose their homes. The Court’s desire to progress cases should not be at the expense of a tenants right to legal advice.

e. this is partly already provided for in practice directions but is “policed” differently from judge to judge.  In order to work this would need strengthening of the PDs

f. last minute documentation may be crucial to both parties’ cases.  Is this not a prime indicator that the court is not ready to yet hear these case?

6. See all answers above. Landlords will clearly not face the difficulties outlined above and the proposals give rise to an inequality of arms between the parties.

Following paragraphs

Your “least worst” formulation is an honest representation of you proposals.  But given we are talking about people’s homes and we are in the midst of a pandemic crisis with little idea of the shape of the crisis, then it is not acceptable to proceed with the “least worst” arrangements when the option to stay proceedings further remains available.

While it is for the Master of the Rolls to decide whether to extend PD51Z, it remains, as you say, a judicial decision as to whether and when to list hearings.

The discussion between tenants and their landlords and preferably with a duty adviser involved is the bedrock upon which possession claims have been justly dealt with previously. It is telling that possession claims have a completely separate code from other sorts of claims with no default judgment provisions (except arguably in the accelerated procedure). Those safeguards are not there because landlords need protecting.  They are there in recognition that tenants need protecting from litigation procedures as much as possible.  These proposals go against that grain and demote equality of arms.

In relation to the contention that judges will be alert to ensure that vulnerable tenants are not prejudiced, we would need to see much more details on any guidance issued to judges but in any event fear that the proposals will not equip judges with sufficient knowledge of the background to cases to have any idea of how vulnerable the tenant might be.

It is unfortunately naïve to suggest that the vast majority of defendants will have any chance of obtaining assistance to complete defence form in advance of hearings.  Again we refer you to the evidence in Arkin v Marshall at http://www.hlpa.org.uk/cms/2020/05/arkin-v-marshall-pd51z/

Legal Aid

The proposals amount to the Judiciary and HMCTS setting legal aid policy by fait accompli. It damages tenants’/defendants’ access to justice and violates their right to a fair trial. Furthermore, reducing the availability of legal advice and representation to those on the brink of home loss, will lead directly to entirely avoidable evictions and to increased homelessness – just at a time when the public health imperative is ‘stay home’.

The duty solicitor desk must not be a contingent on the court’s convenience. Enabling it should be a fundamental condition for the operation of every possession list, and we expect MoJ to stand by this. I would suggest that this is included in public guidance specifying minimal conditions and overarching principles for all possession schemes.