News, events and consultations

Responding to London Courts Consultation – Arrangements for Listing Possession Claims After 25 June 2020

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.

HLPA meeting 20 May 2020 – 6:30pm

This month’s meeting features Carla Clarke of CPAG and Justin Bates of Landmark Chambers

The meeting will be by Zoom and here are the details:

 

Topic: HLPA Meeting 20 May 2020

Time: May 20, 2020 06:30 PM London

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Arkin v Marshall – PD51Z

The Court of Appeal have handed down judgment in this important case convening Practice Direction 51Z  (“PD51Z”) in which HLPA intervened and the Lord Chancellor joined as interested party.

The outcome is that PD51Z is lawful, applies throughout possession proceedings and in all but the most exceptional cases should not be lifted. The court found it hard to envisage examples of when a matter will be ‘exceptional’ for the purposes of lifting the stay.

Background

PD51Z was introduced by the Master of the Rolls on 26.03.2020 and was amended on 20.04.2020.  The purpose of PD51Z is to stay all possession proceedings brought under CPR part 55 and to stay all residential eviction action (whether or not commenced by part 55) until 25th June 2020 with an option to extend that period. The appeal was brought by a fixed charge receiver in private mortgage possession proceedings but the key issues of general importance in the appeal were:

(i) did the Master of the Rolls have the power to make PD51Z in the terms of the original and/or the amended practice directions ? The appellant argued that PD51Z was ultra vires.

(ii) if he did was it intended to apply throughout the full duration of a part 55 possession action? The appellant argued that it did not apply once a claim had been allocated to the multi-track.

(iii) was it possible for a judge on the application of one of the parties (other than by agreement between the parties) to lift the stay? The judge in the county court considered not.

HLPA gathered evidence from 50 lawyers throughout the country in 2 short days in order to ensure that HLPA members’ expert view from the ‘coalface’ was before the court.

Judgment of Sir Geoffrey Vos, Chancellor of the High Court

The court had little difficulty in finding that PD51Z was lawful on its own term and not inconsistent with the Coronavirus Act 2020. Article 6 of ECHR was of no assistance to the Appellant.

Likewise it was found that the practice direction applies throughout the duration of a part 55 case.  Part 55 case which have been allocated to track, even if it is the multi-track, are not excluded.

It is no surprise that the last of the grounds of appeal engendered the most consideration, mainly around the tension between the general nature of the stay in PD51Z and the case management powers at CPR 3.1 and s.49(3) of the Senior Courts Act 1981. Ultimately this point too was simply decided.  PD51Z is subject to CPR 3.1.  However the very purpose of PD51Z is the key to understanding in which circumstances a judge could properly lift the stay:

(§ 42) That purpose is of its nature blanket in character and does not allow for distinctions between cases where the stay may operate more or less harshly on (typically) the claimant.  It would be fatally undermined if parties affected by the stay were entitled to rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case.  Thus, while we would not go so far as to say that there could be no circumstances in which it would be proper for a judge to order that the stay imposed by PD 51Z should be lifted in a particular case, we have great difficulty in envisaging such a case.

 (§ 44) The approach of a blanket stay reflects the balance struck by the Master of the Rolls, and makes clear that possession claims are not to be dealt with on a normal case by case basis during the stay. We would strongly deprecate parties troubling the court with applications that are based only on such reasons and which are in truth bound to fail.

 (§ 46) We do not, however, rule out that there might be the most exceptional circumstances in which such a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD 51Z itself.

HLPA welcomes the judgment which is clear and unequivocal. The Appellant in this case had strong arguments to suggest that the Respondents would not have particular difficulty in complying with directions but the Court of Appeal nevertheless found that the judge was correct not to lift the stay.

Our members provided vital evidence of the difficulty we and our clients would have faced in meeting not only case management directions but also the many applications for the stay to be lifted that may have followed, absent the clear judgment of the Court of Appeal. We therefore welcome the fact that following this judgment our clients and our members can be confident that we retain the proper protection of PD51Z and applications to lift the stay, based on the individual facts of the case, are unlikely to succeed.

The evidence provided by our members is here: Arkin v Marshall HLPA evidence.

HLPA intervenes in Court of Appeal case of Arkin v Marshall

HLPA’s application to intervene by way of written submissions in Arkin v Marshall has been granted. This is a first for HLPA and was only made possible due to the overwhelming response from our members, provided in record time. The responses received were detailed and shows the real and substantial difficulties faced by our members in representing their clients during this crisis. It has formed the evidence relied by us in the appeal. By taking part, HLPAs members can be assured that their voices will be heard in this profoundly important case.

The government has also applied to intervene.

Arkin v Marshall will consider whether Practice Direction 51Z is (a) ultra vires, (b) whether it applies to cases that have been allocated to the multi-track, and (c) whether the stay can be lifted.

HLPA’s position is that PD 51Z is not ultra vires and the stay cannot be lifted. If it can be, this should only be in exceptional circumstances.

Thank you to all of our members and we will continue to keep you updated.

URGENT CALL FOR INFORMATION

Dear Colleague,

We are writing to you with an urgent call for information on a vital legal issue pertaining to Practice Direction 51Z.

Next Thursday, 30th April, the Court of Appeal is set to hear an appeal in the case of Arkin v Marshall, considering: (i) whether the 3-month stay of possession proceedings in PD 51Z is unlawful, (ii) whether the stay applies to the requirement to comply with case management directions in all cases and (iii) whether the stay should be lifted in individual cases.

HLPA intend to apply to intervene. The basis of the intervention would be that we can provide evidence of the borrower/tenant legal advice sector and the ability in a range of cases to comply with directions in the current circumstances.

This is therefore a call for evidence to submit to the Court of Appeal.

Time is of the essence and we need your responses by close of business Friday 24 April 2020.

Please indicate whether you are happy for your evidence to be attributed and/or your response to be exhibited to any witness statement.

Questions

  1. What percentage of your work is housing law which would be affected by PD51Z?

 

  1. What percentage of that is legally aided, charity funded or pro bono?

 

  1. What percentage and number of your housing team are furloughed currently?

 

  1. What working arrangements do you have for:
    • Seeing clients face-to-face
    • Seeing clients digitally (Zoom, Skype etc)
    • Sending and receiving documents to and from clients and other parties
    • Getting signatures on documents

 

  1. What percentage of your clients (if any) are able:

 

  • safely to travel to receive advice face to face if you are presently able  to provide this service.
  • adequately to respond to you using the alternative arrangements you have in place (such as Zoom, email, Skype?).

If any of your clients are unable to do so then why is this?

 

  1. While understanding that clients’ skills and abilities vary, please provide details of any experience or observations as to your client group’s ability or otherwise, in the current circumstances, to:
  • receive advice as to their obligations in law and the civil procedure rules (including but not limited to disclosure obligations and the implications of a statement of truth);
  • collate and get to you documents such as those required for disclosure under CPR 31;
  • provide adequate instructions (including on documents disclosed by other parties) in order to finalise witness statement evidence  under CPR 32;

including any comments on your experience with any particular subsets of your clients and/or any particular difficulties you may have experienced.

 

  1. Please provide details of any experience and/or observations in relation to the practicalities, in the current circumstances, of:
  • dealing with the Legal Aid Agency;
  • instructing expert witnesses to .

 

  1. Please provide any other comments on your/your  organisation’s and your clients’ ability to manage case management directions in possession actions of all kinds in the current situation.

 

Please respond to Chandra_Rao@shelter.org.uk

COMMUNITY CARE JUDICIAL REVIEW LEGAL AID – DELEGATED FUNCTIONS AND WORK AT RISK

Open letter to Fiona Rutherford – Director, Access to Justice, MoJ, James Wrigley – Head of Civil and Family Legal Aid Policy, MoJ, & Jane Harbottle – Interim CEO Legal Aid Agency.

The Coronavirus Act 2020 and the regulations made under it has made major changes to the legal landscape of the UK in an unprecedented way. In addition to restrictions on movement and civil liberties, on 31st March and 1st April the Government removed statutory duties to assess and provide care to adults and provided local government with wide discretionary powers in respect of provision of social care.
At present, legal aid providers can only use delegated functions to grant funding certificates for judicial review claims under homelessness provisions. They are still subject to the regulations where, if they are refused permission by the court, they are not paid for the work they have done. Even in normal circumstances these conditions are serious inhibitors of the ability of those in need of care to obtain legal redress when things go wrong.
It is our submission that in these extraordinary times, upholding the rule of law and individual rights is essential and that, given the radical changes to care provision for the most vulnerable on society, swift and unencumbered access to justice via judicial review is essential.
While the motivation behind the recent changes is understood, equally it is crucial that the authorities also ensure there are no barriers to obtaining legal redress if the provisions cause unintended and disproportionate hardship.
Accordingly, we ask that the Ministry of Justice and the Legal Aid Agency in these extraordinary times consider the following:
(1) The restoration of delegated powers to solicitors to fund urgent judicial review claims for challenging community care, Children Act 1989 and Asylum Support decisions given the risk to life which is present in the pandemic and the need for urgent action by solicitors;
(2) To reduce the effect of any inhibition of the “permission at risk” regulations for legal aid providers for issuing claims by suspending the operation of the regulations which mean should the court not grant permission the provider is not paid.
Given the changes to the duties to provide social care combined with restrictions on movement, we consider these are necessary and urgent.
We want to emphasise, there is nothing in our proposals ((1) and (2)) that infringe the government’s new measures. Judicial reviews do not require the parties to attend court and the government’s social distancing measures are maintained. Our proposals are, however, essential to ensure that the rule of law is upheld, the vulnerable are protected and that access to the Courts is preserved.
Yours sincerely
Simon Mullings and Marina Sergides (co-chairs) for Housing Law Practitioners Association
Nimrod Ben Cnaan for Law Centres Network
Chris Minnoch for LAPG
Tim Baldwin Barrister Garden Court Chambers

HLPA statement 23/03/2020 – amendments to the Coronavirus bill – possession claims

On 18 March 2020 under a press release headline “Complete ban on eviction and additional protection for renters” Housing Minister Robert Jenrick said:

“The government is clear – no renter who has lost income due to coronavirus will be forced out of their home, nor will any landlord face unmanageable debts.

“These are extraordinary times, and renters and landlords alike are of course worried about paying their rent and mortgage.

“Which is why we are urgently introducing emergency legislation to protect tenants in social and private accommodation from an eviction process being started.”

Yet we are hearing today, 23 March 2020, that in fact the legislation amounts solely to an extension to three months of the notice period required for possession proceedings to commence.  That is not legislation to prevent an eviction process being started. Put at its highest it is grace period of one month and is entirely inadequate to the crisis at hand.

Former HLPA Chair Giles Peaker has posted the detail and his analysis here https://nearlylegal.co.uk/2020/03/emergency-legislation-on-possession-claims/

The MHCLG has dangerously misunderstood the scale of the crisis facing tenants and other renters, both immediately and in the future. We all face financial insecurity as well as the health crisis over the coming months.

The government’s overwhelming priority should be to keep people safe and keep people secure during the period of the crisis.

The policy fails to get to grips with the very simple fact that ordinary people need the security of their homes in order to keep safe in a pandemic.  Furthermore, the public good lies in people remaining secure in their homes and not being forced to seek new accommodation with all the social contact that implies.

A household receiving a notice of possession proceedings would have to start to look for new accommodation immediately, regardless of the fact that the notice gives three months before court proceedings will commence.  It is staggering that the government does not recognise that.

In addition, there is nothing that protects renters in more insecure forms of letting arrangements such as lodgers and many people in HMOs. Again, if those people have to leave their homes because of the inaction of the government then they are extremely unlikely to be able to follow the current guidance on social distancing as they find somewhere else to live.  Many will not find anywhere to live and will add to the shameful increase in street homelessness.

The government needs to come to its senses and bring forward measures that properly protects all renters and in so doing protects the whole public.  We call for:

* A moratorium on all and any steps to evict tenants and licensees for a period of three months with an option to extend as necessary, including service of notices, commencement of possession proceedings, all orders for possession of any kind and all and any steps to execute any possession order

* Measures to prevent rent and licence fees accumulating and measures to support landlords to ensure that properties remain viable for letting

* Enhanced powers against landlords who carry out or attempt to carry out unlawful evictions including further criminal sanctions

In other words the government must shake itself out of its long held complacency about the rented sector and must now adequately respond to the “extraordinary times” referred to by the Minister just five days ago.

HLPA statement on Covid 19 crisis and Housing Possession Court Duty Schemes

HLPA welcomes the announcement from the MoJ today that new evictions and new possession proceedings are to be halted during the crisis.

However more needs to be done to protect our members and our clients. HLPA members are contracted to deliver advice and representation on housing possession duty days in county courts up and down the country. The conditions under which this is undertaken varies from court to court and advisers can see up to 20 or even 25 clients in a day, sometimes in tiny cramped designated rooms, sometimes in court waiting rooms. They are handling clients’ documents and have contact with any number of representatives for landlords as well as court staff. They are in and out of the court room all day.

This represents an unacceptable risk to our members, to clients, to landlord representatives and to court staff. The same risks that have led to criminal trials being stopped are present and even exceeded on housing possession court duty sessions.

At the same time it is surely in the public interest that people are not evicted from their homes, are not forced to seek new accommodation, are not obliged to view properties or allow viewings of their home to take place, and as in the worst cases are not made homeless.

The Court Services and Ministry of Justice should immediately:

• Place an automatic moratorium on all ongoing residential housing possession cases and evictions, with all such matters stayed for a specified period of time with any outstanding eviction dates voided

• Agree payments of average fixed amounts to suppliers delivering duty advice to ensure their sustainability during this period and to ensure they are in place to take up the duty sessions when the moratorium is lifted

AGM and Members’ Meeting on 18th March

Dear Members
Owing to the spread of the coronavirus and in order to reduce the risk of transmission, we have decided to postpone the meeting that was due to take place on 18th March. 
This will now take place at BPP’s Waterloo venue on 15th July. Further details will be circulated in due course