Managing the backlog in the courts

The Government recently announced that the restrictions on enforcement of evictions would continue until the end of May. But, less covered in the media, was the line which said: ‘The government will consider the best approach to move away from emergency protections from the beginning of June, taking into account public health advice and the wider roadmap’. 

Particularly for those landlords who have been through the court process but are unable to regain possession, this signal from the Government that they intend to move back to a more normal footing is welcome news. 

The NRLA has presented proposals to Government about what this should look like. We are conscious that the courts need extra resource to cope with the backlog of cases which have built as a result of the extended closure over 2020. Our proposals are aimed at reducing demand on the courts and increasing the number of possession cases which can be heard. 

How big is the challenge? 

According to Ministry of Justice figures, the average (median) time between claims and repossessions has doubled for standard possession claims by private landlords, from 17.9 weeks in quarter 4 of 2019 to 42.7 weeks in the same period in 2020. During this period, there were variable restrictions on enforcement. 

Over the same period, the median time between claims and possession orders being issued has almost tripled, from 6.9 weeks in 2019 to 26.0 weeks in 2020. The courts were open throughout the fourth quarter of 2020. 

What has the NRLA proposed? 

Virtual hearings 

To date, possession cases have not made use of online technology to hold hearings. This is in contrast to criminal cases, where the Government has talked about the possibility of online hearings helping to ‘keep the criminal justice system moving’.  

The impact of the pandemic provides a unique opportunity for a generational shift and a move to ‘digital by default’ unless there are clear reasons, in the interest of justice, why this would not be appropriate. 

As part of this move to ‘digital by default’ it is vital that tenants are offered advice at an early stage. Currently, many first access legal advice on the day of the court hearing. Providing this much earlier in the process would avoid last minute adjournments which further increase the burden on the courts, tenants and landlords. We have therefore proposed that information is included with the notification to the tenant that a claim for possession has been made to the court, directing them to an online portal which provides access to an online duty solicitor. 

Accelerated procedure in pre-Covid mandatory Section 8 cases 

For cases which pre-date lockdown measures in March last year, where mandatory possession claims are made, they should be decided without the need for a hearing if no defence is raised. The majority of these are likely to be claims under Ground 8 for serious rent arrears. In this case, landlords should fully and clearly document the arrears and the period to which they relate, to evidence that arrears were built before lockdown began. 

What does this mean for landlords? 

We encourage landlords who have grounds under Section 8 to use this process, rather than Section 21, to ensure that they will be able to enforce claims which are granted by the courts. It is likely that there will continue to be some form of prioritisation in the courts and/or for enforcement, to help the system manage the backlog, and Section 21 claims will remain at the bottom of any list. 

Furthermore, if you have rent arrears but have pursued possession under Section 21, the courts have judged in a recent case (Corporation of Trinity House of Deptford Strond v (1) Dequincy Prescott (2) Clodagh Byrne) the claim was not covered by the exemptions to the enforcement ban which allow enforcement in cases of extreme arrears.