Possession Procedures - and the new civil procedure rules

At last, an attempt has been made to rationalise the procedures in landlord and tenant actions, but does it go far enough? The old rules are revoked and new, simplified and streamlined rules introduced within the Civil Procedure Rules, matched by new forms. But does it go far enough?

Background

Several Government Commissions and other committees have looked into the shortcomings of the current legal system, and the operation of the courts in implementing the law.  Landlords have repeatedly complained, in particular, about the problems of removing defaulting tenants using the court process.  Possession actions can be notoriously slow (see inset case) often leaving landlords with thousands of pounds of debts that are rarely recovered.

Lord Woolf led one of the most far-reaching studies into the legal system in the mid-1990s.  The Woolf Report concluded that many parts of the British justice system were archaic and inefficient.  The Report's recommendations included many positive ideas which have since been adopted:

  • new fast track court procedures with strict limits on timing and costs
  • raising the small claims threshold

and other proposals which have not been adopted - such as specialist housing courts and judges specialising in housing matters.  The Lord Chancellor set a target date of October 1998 for the introduction of Woolf's proposed reforms.

New rules

The new court procedure rules for civil cases eventually came into effect in April 1999.   As a final stage in this process, from 15th October 2001, new rules take effect for landlord and tenant proceedings, and new forms will be required by litigants.  The new Part 55 of the Civil Procedure Rules sets out the procedure for obtaining possession of premises (residential and commercial) and a new Part 56 for other landlord and tenant related remedies and applications.  The following sections attempt to illustrate some of the changes that have been made.

Possession routes

As before, landlords bringing possession actions relating to assured and assured shorthold tenancies have a choice of two main routes:

  • Section 21 route
  • Section 8 route

The section 21 route is, of course, only available with assured shorthold tenancies (normally after the end of the initial fixed term) and requires that a valid section 21 notice has been served on the tenant (and expired) before possession can be applied for.
Section 8 is the route mainly used for tenant default (e.g. rent arrears ) under one of 18 grounds in the Housing Act.  The section 8 notice must be served before the possession action can begin. 
The format and content of both notices is unchanged and unaffected by the new court procedure rules.

Claim

Under the new procedure, claims will normally start in the county court for the district in which the property is situated (although they can be started in the High Court in "exceptional circumstances").

Two forms will be required to issue the claim.  The new claim form, N5, will be used in all possession claims, other than accelerated possession (APP). The return date procedure is retained and any return date hearing will normally be not less than 28 days from the issue of the claim form.

The standard period between issue and hearing will be 8 weeks. As now, it will be advisable to contact the local court manager to find out the position locally. The new procedure and new forms may cause some practical difficulties in terms of implementation in some courts.

The courts will have discretion to shorten the timescale for cases involving trespass or allegations of serious damage or violence (threatened or otherwise). Importantly, new practice direction PD 55, para 3.2 allows the timescale to be shortened if the defendant (or a person for whom the defendant is responsible) has caused serious damage or threatened to cause serious damage to the property.  The claim form has an appropriate section for such cases.

Particulars of claim

A particulars of claim has to be served on the defendant not less than 21 days before the hearing. New form N119 - Particulars of claim for possession - unlike the old form this can be used for all breaches of the tenancy agreement not just rent arrears. This form contains a statement of truth section. If the claimant fails to verify his statement of case by a statement of truth then he may not rely on it as evidence of any of the matters set out in it and the court may even strike it out.
There is now a useful set of notes for guidance on completing the particulars of claim form (N119A). Defendants do not have to acknowledge claims but if they do not file a defence (Forms N11 & N11R) then they can only be heard at the hearing with the permission of the court and this might have a bearing on costs. Information for defendants in rented residential premises is provided in a new form - N7A. Another change is rule 55.8(3) that appears to allow evidence to be given in writing at the return hearing date where the case is not allocated and the court has not ordered otherwise.

Allocation

Cases will normally be allocated to the fast track or multi-track but the small claims track can be used if the parties agree. If they do agree, then they can also agree to use the small claims track costs rules. Otherwise a modified form of the fast track cost rules will be used.
Some of matters that will be taken into consideration for allocation will include the amount of any rent arrears, the importance of the defendant retaining possession and the importance of vacant possession to the claimant.

Accelerated Possession Procedure

The Accelerated Possession Procedure is retained but defences must be filed within 14 days, when a judge can then decide the claim on paper or arrange a hearing, which must be held before the date on which possession is to be given up.
A new claim form - N5B - has been produced and comes with a new notes for claimants (form N5C) which states that the statement must be signed by the claimant, the claimant's friend, (if the claimant is a minor or a patient) or the claimant's solicitor.  It is important for agents to note that, as before, the claim may not be signed by the claimant's managing agent.
The defence must be issued on the new form - N11B - and if the tenant accepts that an order for possession will be made but wishes more than the usual 14-day order they will have to use the prescribed form.

Conclusion

Whilst it is hoped that the streamlining of the procedure and its incorporation within the Civil Procedure Rules will reduce delays, much will depend on the workload and efficiency of the courts. The resources that are made available to the Court Service may be more of a constraint on speeding up cases.

It is a pity that a more comprehensive approach was not attempted. Perhaps a new housing tribunal with dedicated staff could have dealt with not only possession claims but also registration of houses in multiple occupation, housing benefit and homelessness cases as well.  Many possession actions have at their basis a problem with payment of housing benefit, so a unitary housing court would have merit.  The actual degree of improvement created by these new rules and forms will need to be carefully monitored.

Further information
Details are set out in Civil Procedure Rules 2001 SI No 256. Further information and details of the provisions are available on the government website:  www.hmso.gov.uk.
The new rules are matched by a series of new forms for use in court proceedings, which are available on ww.courtservice.gov.uk, and they should be also available from your local county court.

Please note: This article was originally published in the Letting Update Journal in October 2001. All information was correct at time of publishing.