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Litigation in lockdown: the housing cases receiving pandemic priority

07.04.2020

From ministerial intent, to clarification, legislation and Civil Procedural Rule Amendment: we now have some clarity about the cases the courts will not be dealing with, certainly in the 90 days from 27 March 2020. The combination of the above means that, as far as housing matters are concerned, possession actions are effectively stayed and will not progress beyond their current stage.

That is not to say, however, that housing work comes to a halt: indeed, other matters will be given priority during the lockdown, and the preparation of possession claims will continue pending the current stay being lifted. This means that (a) housing providers must still prepare for much of their ongoing litigation with the same intensity as before, and (b) there remains scope for housing providers to exercise many of their powers (and enforce them in court) even under lockdown.

The county courts categorise litigation under lockdown as either "Priority 1" or "Priority 2"matters. "Priority 1" matters "must" be given court time, whilst "Priority 2" matters "may" be given court time depending on the specific nature of the case and the capacity of the court. These are changed on a daily basis so it is worth checking the HMCTS website for updates.

If a matter is categorised as "Priority 1", therefore, it is likely to receive a listing, even during the lockdown. Cases classed as "Priority 1" matters can therefore be progressed quickly.

A significant number of housing-related areas of law are classed as "Priority 1". These include:

Injunctions – Injunctions in general fall within the "Priority 1" category but particular emphasis is given to injunctions with "a real time element... noise, or interference with property" and "Anti-social behaviour/Harassment injunctions (not ancillary to possession). Housing-related injunctions, such as ASB, repair, nuisance, or gas injunctions are therefore at the heart of the "Priority 1"category. The explicit exclusion of injunctions ancillary to possession proceedings suggests that it would be wise, tactically, to keep injunction and possession proceedings entirely separate for the time being (even where the two matters may cover some of the same subject matter).

"Priority 1" matters also include return dates for ex parte injunctions and proceedings for committal for the breach of an injunction.

Arguably, as has already been reported on social media, it has never been more important for housing providers to exercise their ASB powers vigorously, given that people are in effect confined to their homes and therefore unable to escape housing-related ASB.

Homelessness appeals - These appeals lend themselves more easily than much county court litigation to e-hearings. Given that s.204 appeals are, in effect, judicial reviews in the County Court, they can be determined easily by submissions, without the need for live evidence.

Stay applications in possession proceedings – There is some confusion about the presence of this area of work in the "Priority 1" list, given the broader stay on possession claims and "all proceedings seeking to enforce an order for possession by a warrant or writ of possession", but the clue may be in the word "proceedings". Applications for permission to issue or enforce a warrant of possession appear to be stayed, but not applications to stay the execution of a warrant, or appeals against decisions made on such applications. There is more detail about how the longer notice periods work in this update that we published on 25 March.

Hearings necessary to keep to trial timetables – These include applications in proceedings where the trial is listed in the next three months and applications where there is a "substantial hearing" listed in the next month.

"Priority 2" matters include small claim and fast track trials where the parties agree that the matter is urgent. These could, potentially, include disrepair trials.

How we can help

With the County Court having to adapt quickly to the new "Priorities" approach, and a high level of confusion and worry amongst court staff, the application of this new approach may differ widely between courts. Cornerstone Barristers can provide advice, written notes or draft letters, or even in-person advocacy to court staff, as well as advocacy at hearings and case-management guidance, to ensure that housing providers' "Priority" matters are heard.

Ask us questions

This is a time when events are progressing quickly, and many people have further questions. We invite you to submit questions to us by email to kuljitb@cornerstonebarristers.com, andrewl@cornerstonebarristers.com, deanu@cornerstonebarristers.com and sfowles@cornerstonebarristers.com.

You can also join us for a live webinar next week at which we will attempt to answer these, and any other, questions on housing litigation under lockdown. We'll publish the details of the webinar, and how to join, shortly.