COVID-19: REPOSSESSIONS HALTED II: PRACTICE DIRECTION

Here's chapter and verse - the authority for the halting of proceedings for possession of tenanted and mortgaged properties and evictions in the form of a practice direction made under the Civil Procedure Rules 1998.

PRACTICE DIRECTION 51Z – STAY OF POSSESSION PROCEEDINGS - CORONAVIRUS This Practice Direction supplements Part 51

1. This practice direction is made under rule 51.2 of the Civil Procedure Rules (“CPR”). It is intended to assess modifications to the rules and Practice Directions that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.

2. All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force.

3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2.

COVID-19: Emergency Priority Courts For Face To Face Hearings Introduced: 27 March 2020

You will find all you need to know about the priority courts in England and Wales at https://www.gov.uk/government/news/priority-courts-to-make-sure-justice-is-served?utm_source=c92c9329-6fec-4c32-9a9c-6f010ab553a9&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

COVID-19: REPOSSESSIONS HALTED

For the latest legal developments, see this digestible summary which has just been published by the Government https://www.gov.uk/guidance/government-support-available-for-landlords-and-renters-reflecting-the-current-coronavirus-covid-19-outbreak?utm_medium=email&utm_source=

Pending possession action is halted. Any landlord now wishing to give notice to a tenant to leave will be required to give at least three months' notice (instead of 28 days, 14 days or two months, depending on the type of tenancy, as before).  New forms of notice are likely to be prescribed shortly.  

But - and it's a big but - rent will still be payable. If two months' plus rent arrears accumulate then (subject to any future legislation) a large number of tenants will be at risk in due course - once the freeze on possession proceedings thaws out - of being subject to a mandatory order for possession. So try and keep those arrears down to less than two months.

COVID-19: Restrictions on Movement: THE Law

For the legislation which came into force at 1pm today, see http://www.legislation.gov.uk/uksi/2020/350/pdfs/uksi_20200350_en.pdf

COVID-19: New Civil Practice Direction For Remote Hearings: England & Wales

Here is the practice direction under the Civil Procedure Rules 1998 made on 24 March 2020 and covering video and audio civil court hearings during the pandemic.

116th UPDATE – PRACTICE DIRECTION AMENDMENTS The new Practice Direction 51Y supplementing the Civil Procedure Rules 1998 is made by the Master of the Rolls under the powers delegated to him by the Lord Chief Justice under Schedule 2, Part 1, paragraph 2(2) of the Constitutional Reform Act 2005, and is approved by the Lord Chancellor. The new Practice Direction comes into force on the day after the day on which it is approved. The Right Honourable Sir Terence Etherton Master of the Rolls and Head of Civil Justice The Right Honourable Robert Buckland QC MP Lord Chancellor Date: 24th March 2020 

PRACTICE DIRECTION 51Y – VIDEO OR AUDIO HEARINGS DURING CORONAVIRUS PANDEMIC 1) After Practice Direction 51X insert Practice Direction 51Y as set out in the Schedule to this Update. 

SCHEDULE PRACTICE DIRECTION 51Y – VIDEO OR AUDIO HEARINGS DURING CORONAVIRUS PANDEMIC 

This Practice Direction supplements Part 51 1. This practice direction, made under rule 51.2 of the Civil Procedure Rules (“CPR”), makes provision in relation to audio or video hearings. It ceases to have effect on the date on which the Coronavirus Act 2020 ceases to have effect in accordance with section 75 of that Act. 2. During the period in which this Direction is in force, where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice. 3. Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings. In such circumstances it will not be necessary to make an order under paragraph 2 and such an order may not be made. 4. Any hearing held in private under paragraph 2 must be recorded, where that is practicable, in a manner directed by the court. Where authorised under s.32 of the Crime and Courts Act 2013 or s.85A of the Courts Act 2003 (as inserted by the Coronavirus Act 2020), the court may direct the hearing to be video recorded, otherwise the hearing must be audio recorded. On the application of any person, any recording so made is to be accessed in a court building, with the consent of the court. 

COVID-19; Child Contact etc Arrangements

The head of the High Court's Family Division has issued valuable guidance on what should happen where a child's parents are separated and there is a clash between (a) what an order or arrangement between them says about contact or where the child should be living at any given time and (b) stay at home rules. If an order is in force then this guidance will apply whether it was made in the High Court or Family Court in England and Wales.

These are the key points-

• Where parents do not live in the same household, children under 18 can - not must- be moved between their parents' homes and this is an exception to the stay at home rule.
• Where parents agree that what an order says should be temporarily changed, that is fine but it will be advisable for this agreement to be recorded in a note, email or text message sent to each other.
• Where parents cannot agree a temporary change but one of them is sufficiently concerned that complying with the order or usual arrangements would be against public health advice then  they can change what would normally happen to something they consider to be safe. If any challenge by an aggrieved parent  to what has been done by the other parent is later made in court then the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and stay at home rules together with any specific evidence relating to the child or the family.
• Where, because of the above, a parent misses out on time with their child then alternative arrangements should be made within the stay at home rules - for example, remote contact by Face-Time, Skype, Zoom etc or, if that is not possible. by telephone.

For the full guidance, go to. https://www.judiciary.uk/announcements/coronavirus-crisis-guidance-on-compliance-with-family-court-child-arrangement-orders/

Quite obviously, this guidance should not be used as a weapon or unilateral action taken out of vengeance or for some improper motive. The child's best interests must always be paramount and misuse of the guidance could in due course have serious repercussions for the parent in the wrong. In the most urgent cases, an application to the court cannot be excluded but, for child cases, only a remote hearing is likely at the moment and the court will not be pleased by trivial disputes when it is subject to the intense pressures that the virus  has presented it with.

COVID-19: Civil and Family Hearings: LATEST Tuesday 24 March 2020

No hearings which require people to attend in person are to take place in any civil or family court until further notice. The only exception is in the case of genuine urgency and that is likely to be limited to where the liberty of the subject is at stake. But, as I have previously reported, the court will conduct hearings remotely (by telephone, video link etc) wherever possible. 

COVID-19: Planning Relaxation For Cafes, Restaurants & Pubs

A new permitted development right has been granted to cafes, restaurants and pubs  in England to allow them to use their premises for the additional business of providing a takeaway or delivery service for hot and cold food. This will run from 10 am tomorrow 24 March 2020 to 23 March 2021. Th relevant legislation is the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 SI/2020/330.

COVID-19: Family Case Hearings; Latest

See https://www.judiciary.uk/wp-content/uploads/2020/03/Presidents-Guidance_Covid-19-2.pdf

COVID-19 Employment Tribunal Hearings: LATEST

See https://www.judiciary.uk/announcements/coronavirus-covid-19-message-from-presidents-of-the-employment-tribunals-in-england-wales-and-in-scotland/

COVID-19: Involved in Civil or Family Court Case or Dispute?

If you have an upcoming court appearance for a civil or family case in which you are involved as a party and, because of the virus, you want it to be put off,  you need to follow the guidance at https://www.gov.uk/guidance/applications-to-adjourn-civil-and-family-hearings-because-of-coronavirus-covid-19  The likelihood is that an inability to be physically present at the court as a result of you legitimately adhering to government health guidelines, will lead to the court allowing you to remotely participate in the hearing, for example, by FaceTime, Skype or even by good old blower, be it mobile or land line. Judges are being as creative as possible to cater for the current crisis and to do all they can to ensure that justice continues and that everyone entitled to a say has that say. It is possible that some criminal courts which are much larger than the civil and family court hearing rooms  will be utilised for non-criminal hearings so that there is a greater distance between everyone participating. It could help if you notify the other side about what you are doing and even invite them to agree. You should let the court know that you have done this and of any consent to an adjournment. 

It may be that, although you are not in a vulnerable class, you have  a terror of being infected by a physical court appearance. If that is genuine and cannot be overcome, you are still entitled to apply for an adjournment or remote hearing and a judge will decide on it. But I hasten to emphasise that you must be acting in a genuine way. Judges are adept at identifying litigants who are putting forced false reasons for an application and a history of evasion would impact on the credibility of the application.

The hearing goes ahead in your absence and without any remote participation by you and you are aggrieved by what the court has ordered? This may have happened because intense court pressures have prevented your adjournment application being considered in time, because the court was not satisfied that, in your particular circumstances, there was good reason for granting it or because there was some technical hitch which scuppered your remote participation. You can apply for the order to be set aside or varied and for a rehearing. If you did not participate as directed due to a technical hitch then you should apply to set aside within seven days of getting the court's order. If there was another reason then the court will generally expect you to have applied promptly on finding out what the court has ordered (promptly is not defined but if you want longer than around seven days then you may be denied) and to establish a good reason for not turning up or participating remotely as directed and that you have a reasonable prospect of succeeding at a rehearing.

Procedural rules or  court order may require you to take a certain step in proceedings within a specified time which you cannot do for some good reason associated with the virus (for example, inability to obtain essential legal advice or essential documentation). Notify the other side and ask them to agree to your time for compliance being lengthened. If they agree, copy in the court. If they do not agree, apply to the court for more time. Should the other side be unhelpful and it's a defence to a civil claim you need to put in then, at the least,  put in a 'holding defence' ('I dispute the claim. I will file a detailed defence as soon as I can. I am prevented from doing this now because (insert reasons).' This will stop a default judgment being entered against you.

There are strict time limits for starting civil claims which normally range between one to six years from when your right to claim arose (see my book Breaking Law at chapter 10). These may not be extendable. The claim form may be relatively straightforward. It's the Particulars of Claim which could be more problematic for you. Carry on and start the claim in time and send the other side the Particulars of Claim within 14 days of them getting the claim form. If you need longer, either get them to agree in writing or apply to the court for an extension. Where using Money Claims Online, you will have the option to state that the 'detailed' Particulars of Claim will follow.

It may be that these unprecedented times will soften hearts or otherwise change perceptions to legal disputes and that they present a landscape for compromise which was not previously present. Why not try and settle your proceedings or legal dispute? If you do, write to the other side marking your communication 'without prejudice' (see Breaking Law at chapter 8).  This will protect you being prejudiced by anything stated in the letter if the case does not settle. 'I am writing to you in the spirit of compromise in these times of great difficulties for all of us. I would like to propose that the claim to which we are parties is settled as set out below. I will remain willing to settle on these terms for a period of 14 days from the date of this letter. If not accepted within this period then these proposals are withdrawn but you are at liberty to ask me to consider extending this period if you need a little more time."

In relation to financial remedy applications in the course of matrimonial proceedings,  some hearings at  which the court investigates and encourages a settlement - they are called financial dispute resolution appointments - have already been held remotely and this will continue. However, the impact of the virus may well dramatically alter the financial circumstances of the parties and hinder a settlement for the time being. Where the court system has become clogged up and the parties are anxious for a decision without undue delay, an application can be halted to allow an arbitration hearing out of the court system which would be binding on the parties.   

Be well.

COVID-19: Free Carrier Bags

As from tomorrow 21 March 202o and for a period of six months, large retailers in England will be relieved of the obligation to charge for carrier bags where used solely for goods to be home delivered as part of an on line grocery delivery service. This is thanks to the Single Use Carrier Bags Charges (England) (Amendment) Order 2020 SI 2020/324 laid before Parliament at 4pm today. 

Damp Claims By Tenants - and More: New Laws

Rented homes must now be generally fit for human habitation. Unfit? A claim for compensation against your landlord and particularly useful where dampness is alleged. This new law came into force on 20 March 2019 but did not then catch periodic tenancies (like a monthly tenancy) which had commenced before that date. As from 20 March 2020 these older tenancies will be covered.

To save you an attack of repetitive strain injury, here's what I said about this new law in a previous post, when it first came into force.

Do you have a tenancy agreement for less then 7 years or a weekly, monthly or yearly tenancy? Then your landlord is stuck with having to maintain the structure and exterior and installations for the supply of water, heating and sanitation. They can't get out of it by suggesting otherwise in the tenancy agreement.

But what about putting and keeping the premises in a condition that makes it fit for human habitation. In practice, there's now no implied legal obligation for them to do this. The tenancy agreement may say they must and, if it does, that's another matter. It if really says so then I will eat my law books.

So the structure and exterior are OK. The water, heating and sanitation are OK. But the premises are infested by mice and rats or, because of some other factors, no human being should reasonably be expected to live there. At the moment, your best bet would be to try and persuade the council to take action against the landlord to improve or condemn the premises. That won't work if the council is your actual landlord as they can't take enforcement action against themselves. A fast and effective remedy and the ability to claim compensation from the landlord might well be impossible, whether the landlord is the council, a housing association or a private individual or company.

Cue the Homes (Fitness for Human Habitation) Act 2018 which comes into force on 20 March 2019. It applies to England. Wales already has similar laws in operation. 

The new Act implies into tenancy agreements a promise by the landlord that the premises are fit for human habitation and will remain so throughout the lease. Anything stated in the tenancy agreement or verbally by a deceiving landlord isn't worth the paper it is written on or the spittle it is spoken with. And if the premises aren't fit as required then the tenant can take court proceedings (in the county court or, in very serious cases indeed, in the High Court) to compel the landlord to make the premises fit and for damages. Even legal aid would be available for the compulsion bit if there is a serious risk to health or you should be able to find a solicitor willing to take the case on a 'no win, no fee' basis.

The Act will not immediately apply to every tenancy. But it will apply to every new tenancy for a fixed period of less than seven years granted on or after 20 March 2019; to every tenancy which before 20 March 2019 was for a fixed period of less than seven years and after then becomes what is known as a periodic tenancy (say a weekly, monthly or yearly tenancy); and as from 20 March 2020 to every periodic tenancy then in existence. Geddit?!

Where the premises are in a block and there are common parts such as staircase or say a roof which is in the ownership of the landlord then they too will come into the reckoning if they lead to the premises being unfit.

It is important that the landlord is notified about the condition of the premises before complaint is made that they are in breach of their obligations.

Plenty more on the wars between landlord and tenant in my book Breaking Law. No, I am not a landlord.

New Procedural Rules For Family Cases

Here we go with some important changes for family cases (such as divorces, financial remedy applications and applications relating to children). Give thanks to the Family Procedure (Amendment) Rules 2020 SI 2020/135 and amendments to certain practice directions which will be published before 13 March 2020.

As from 6 April 2020, writing to the court on the sly will generally be taboo. As with civil cases, anything written to the court by a party to family proceedings of substance or about procedure,  must be copied to the other party or their representatives and state on its face that this is being done.  The only exceptions will be a compelling reason for non-disclosure provided it is explained and communications that are purely routine, uncontentious and administrative.

From the same date, there's confirmation that no use may be made in court of unofficial recording equipment without permission.  And clarification that apart from the parties, generally, anyone who seeks a transcript of a hearing requires permission and the money to pay for it. The court will also empowered to assist a litigant in person by directing the compilation and sharing of another party’s note of the proceedings.

As from 6 July 2020, parties to applications for financial remedies in the course of  matrimonial proceedings will have to comply with strict rules aimed at getting faster settlements and keeping costs under control. Each party must send to the court and the other party an open proposal for settlement after any financial dispute resolution appointment has failed to procure a settlement and usually within 21 days of that appointment.

Also from 6 July 2020, there is a toughening of the procedure for telling the court and the other side how much each party has so far spent on the case. These costs estimates will need to be sent to the court and the other side no later than one day before every hearing in a financial case (and a copy taken along to the court for the hearing), be verified by a statement of truth in the form which will be specified in the practice direction and there will be a special one for litigants in person. And, where the party has a solicitor, they must discuss the estimate  with the client  (although there is no obligation on the solicitor to have a bottle of smelling salts available in case the client passes out with shock).

You'll find lots and lots about financial cases and how to handle them in my book Breaking Law.

Behave at Work for Just 4 Weeks

Just four weeks to 6 April 2020. That's when the compensation limits which employment tribunals can dole out will be rising. This means if the axe is treated as falling on or after that date, you would qualify for a little bit more. For unfair dismissal as well as redundancy claims, the axe will generally be treated as falling on the date your notice period expires or, if no notice has been given, the date on which termination is to take effect (so "Get out of my office, Buggins, this very second and never allow me to see your ugly face again'' would count as an instant dismissal.)

The new limits reflect the increase in the retail prices index since the last revisions were calculated one year ago and so there's an extra 2.4%  available across the board. For calculating the basic and additional unfair dismissal awards, a weekly amount of pay is taken and that rises from £525 to £538. The ceiling for the compensatory award for unfair dismissal is up from £86,444 to £88,519.

Parking Peril At Waitrose

Long suffering followers of this blog will be familiar with my encounters with Waitrose car parks, including the car park at its excellent Havant, Hampshire store. So imagine my horror when I recently discovered that it  had not only stopped pretending to charge for parking by certain lingerers but had brought in Britannia Parking to control parking at the store under a - wait for it - automatic number plate recognition scheme. You gets snapped going in and coming out and if the time lapse is longer than 90 minutes, you gets stung. What self-respecting shopper can  park,  adjust their hat or flies, access the store, view the offers, make their selections, collect their free newspaper and consume their free coffee, sort out their coupons, block an aisle talking to their next door neighbour, queue up, smile at the checkout assistant, bag up their shopping, return to their car and drive off in less than a couple of hours? I ask you! 

The Havant scheme has been running since November 2019 and has been rolled out at a number of other stores as well. Waitrose tell me that the volume of complaints they have received has been minimal. This is how the scheme works at Havant. You drive in and hopefully will observe a series of signs like this.

For full details, then, you need to go the one sign at the lifts and stairs. Take your magnifying glass with you and this is what you will be confronted with. 

For those without a magnifying glass or 20:20 vision, I can tell you that the small print  at the bottom explains that you are accepting the parking deal by parking, waiting or otherwise remaining in the car park. Stay for longer than 90 minutes or return within two hours and you may be charged £70 which will be reduced by at least 40% if you pay up within 14 days. Failure to pay up within 14 days will mean the full charge will be levied and there may then also be recovery charges on top.  

I put some questions to Waitrose. Here are the questions and their answers.

Q To what extent, if at, will Waitrose have any input in a customer challenge to a charge being levied?

A We will support any customer who has needed longer whilst shopping at any of our shops, and this can be done  through our Customer Care team or at our Welcome desks in our shops.    

Q How do you communicate to customers that you would wish them to go to the Welcome desk if they wish to return within the time period and where do they park while they do this?

A Prior to any changes to our car park operation, we will advertise these to our customers so they are aware and can speak to a Partner in one of our shops should they have a question.

I put these questions to Britannia. They did not wish to answer any of them

Q How many car parks does Britannia run for Waitrose using the ANPR system?

Q When will a charge actually be imposed? Signage says there ‘may’ be a charge? What criteria will be applied in deciding whether there will be a charge and to what extent, if at all, will Waitrose have any say in the decision as to whether or not to impose a charge?

Q The signage suggests that the charge may apply on parking for in excess of 90 minutes or returning within two hours. Does this mean there may be a charge if a customer parks for five minutes, departs and returns within two hours and parks for another five minutes?  

Q How does the system distinguish between (a)  a driver who has simply passed through the car park or paused to read the detailed terms and conditions so as to decide whether or not to remain and (b) a driver who has parked in a bay with a view to remaining?

Q When does the return time run from? If a customer parks at 9.00am for 60 minutes, are they in jeopardy if they return at 11.00am or at 12.00noon?  Further, in order to trigger a return charge, is the customer in jeopardy if they return without actually parking or otherwise stopping within the car park? Is the signage not ambiguous?

Q Waitrose say that that they will support any customer who has needed longer in the car park and that this can be done through their customer care team or at their Welcome desk in the store. How will this actually work? Will Britannia automatically cancel a charge if Waitrose asks them to do so? Through what means of communication will the Waitrose ’support’ be channelled?

7 Why are the terms and conditions as displayed by the lift at the Havant store printed is such small  type? How can Britannia reasonably expect to argue that they are sufficiently conspicuous or readable? This is the only notice displaying those terms and conditions in the park? 

Britannia declined to answer any of them but a spokesman said:  “We operate and manage more than 500 car parks nationwide, include those at Waitrose stores. We are a member of the British Parking Association and the industry’s Approved Operators Scheme. All of our signs and procedures meet the approved operators’ code of conduct, including those at Waitrose stores. We work very closely with all of our clients to introduce the most appropriate parking solution based on their requirements. We are not at liberty to disclose information about arrangements between Britannia Parking and its clients. We do not comment on our own internal procedures. As a long standing car park operator and manager of more than 25 years, we take our responsibilities to our clients and customers using our car parks very seriously.”

If you are aggrieved by a number plate recognition charge at this car park or in a similar situation -  and you may be clobbered even though you were not the driver but were the registered keeper though see http://www.breakinglaw.co.uk/search/label/car%20parking - try and get Waitrose on your side and, with or without their support,  take advantage of Britannia's appeal scheme. And if your appeal fails and a county court claim is made against you, consider whether you may have grounds to contest it. Should you have been caught out because of something stated in the tiny print by the Havant lifts and stairs which was not stated in one of the bigger notices then you might be able to argue that you are not bound by it as it was too small to read and was not sufficiently prominent (see my book Breaking Law on small print at chapter 41).  Also check the bigger print notices to see how many were displayed on your route to the lifts and stairs and what they said. 

Before parking at a number plate recognition car park next time, take your watch with you - how many of us remember the exact time we parked ? - and that magnifying glass.

Just one other thing, Waitrose and Britannia. The sign at the lift and stairs doesn't quite make sense in the section just above the small print in respect of car park and store closure times.