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4.      C I V I L    P R O C E D U R E    R U L E S

P A R T   5 5


CPR Part 55 – implemented on 15 October 2001.


Materials

Civil Procedure (Amendment) Rules 2001 SI No. 256, Schedule 1. 

Practice direction - PD55.

Forms -  available at www.courtservice.gov.uk/fandl/menu_house.htm

N206 A  Notice of Issue

N206 B  Notice of Issue

N5 Claim form for possession of property

N5A Claim form for relief against forfeiture

N119 Particulars of claim for possession (rented residential premises)

N7   Notes for defendant

N7A  Notes for defendant

N11R Defence form (rented residential premises)

N120 Particulars of claim – mortgaged residential premises

N11M  Defence form – mortgaged residential premises

N5B Claim form – accelerated possession procedure

N11B Defence to possession claim – accelerated procedure

N7B Notes for defendant – forfeiture claim

N121 Particulars of claim – trespassers

N11 Form of defence

N26 Order for possession

N27 Order for possession (forfeiture)

N28 Order for possession (rented residential premises)(suspended)

N28A Order for possession (rented residential premises)(postponed)

N440 application for time order



Application

Part 55 must be used where claim includes possession claim brought by

-                     Landlord

-                     Lender

-                     Licensor

(CPR 55.2)


Civil Procedure (Amendment) Rules 2001 para 31 (Transitional provisions) provides that CPR 55 only applies to claims issued on or after 15 October 2001.



Trespassers

Part 55 must also be used in a claim against trespassers

-         replacement to CCR Ord 24 and RSC Ord 113 is within Part 55

A claim against trespassers means a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether his tenancy has been terminated or not;  (CPR 55.1(b))


Part 55 has been amended to include claims where a landlord seeks an interim possession order under Criminal Justice and Public Order Act 1994 - see Part 55, paras  20 to 28.  It may also be used where a landlord seeks a demotion order as an alternative to a possession order.


Which court?

Possession claims must be started in county court for district where property situated (CPR 55.3(1))


But a claimant can start in High Court if there are exceptional circumstances (PD55 para 2.1), e.g.

 -    complicated disputes of fact

-         points of law of general importance

-         claim against trespassers and substantial risk of public disturbance to persons or property which require immediate determination


The value of the property and amount of financial claim may be a relevant circumstances - but they alone will not normally justify starting the claim in the High Court.


PD 55 points out consequences of issuing in High Court when not justified.


Claim form

Must be in prescribed form (PD55 para 2.6)

Must be verified by statement of truth (CPR 22.1)  A rubber stamp of a signature does not comply - see Birmingham CC v Hosey December 2002 Legal Action 20, Birmingham County Court, 2 October 2002.


In claim against trespassers, if claimant does not know the name of a person in occupation, must be brought against "persons unknown" in addition to any named defendants (CPR 55.3(4)).


If issued in High Court must be accompanied by certificate stating reasons for bringing claim in High Court, verified by a statement of truth.


Particulars of claim

Must be filed and served with claim form (CPR 55.4)

All particulars of claim must

·        comply with CPR 16

·        contain concise statement of  facts

·        if interest is sought, give details

·        identify the land to which the claim relates (PD55, para 2.1(1))

·        state whether it is residential property  (PD55, para 2.1(2))

·        state ground on which possession is claimed  (PD55, para 2.1(3))

·        give full details of any mortgage or tenancy agreement  (PD55, para 2.1(4))

·        give details of every person who, to the best of the claimant's knowledge, is in possession of the property (PD55, para 2.1(5))


Additional requirements for particulars of claim where tenancy of residential premises (PD55 para 2.3)

If non-payment of rent, particulars of claim must provide

·        amount due at start of proceedings

·        in schedule form, dates when arrears of rent arose, all amounts of rent due, the dates and amounts of all payments made and a running total of the arrears

·        daily rate of any rent and interest

·        any previous steps taken to recover arrears, with full details of any court proceedings

·        any relevant information about defendant's circumstances, including details about benefits and payments direct


Also

·        name of any person known to be entitled to apply for relief from forfeiture claimant must file copy of particulars of claim for service upon him (PD55 para 2.4)


Additional requirements for particulars of claim where mortgage of residential premises (PD55 para 2.5)

If residential premises, particulars of claim must state

·        whether Class F land charge has been registered, or a notice under Matrimonial Homes Act 1983 has been entered and whether a notice under Family Law Act 1996 has been registered - if so claimant must serve notice of proceedings on such a person

·        state of the mortgage account, including

·        amount of advance, periodic payment and interest required

·        amount needed to redeem mortgage including solicitors costs and administration charges

·        if regulated consumer credit agreement, total amount outstanding

·        rate of interest payable


If claim based on arrears

·        in schedule form, dates when arrears arose, all amounts due, the dates and amounts of all payments made and a running total of the arrears

·        details of all other payments to be made and claimed

·        any relevant information about defendant's circumstances, including details about benefits and payments direct

·        any previous steps taken to recover arrears, with full details of any court proceedings


Additional requirements for particulars of claim where claim against trespassers (PD55 para 2.6), namely, must state claimant's interest in land and circumstances in which occupied without licence or consent


Effect of failure to comply - CPR 3.10.


Service

Normal rules in CPR Part 6 apply (personal service, first class post, leaving at last known address, document exchange, fax by court, or claimant)


Where claim against trespassers who are persons unknown by

·        attaching to main door or some other part clearly visible; and

·        though letter box in sealed transparent envelope addressed to "the occupiers"; or

·        placing stakes in the land

(If these methods are to be used, claimant must supply the court with sufficient stakes and transparent envelopes (PD55 para 4.1)


Defendant's response

CPR Part 10 (acknowledgement of service) does not apply (CPR 55.7(1))

CPR Part 12 (default judgment) does not apply (CPR 55.7(4))

Must be in form annexed to PD (PD 55 para 1.5)

CPR 15.2 (defendant who wishes to defend must file Defence within 14 days) does not apply in claim against trespassers  (CPR 55.7(2))

In any other possession claim defendant may take part, but failure to file or serve Defence may be taken into account when deciding costs order. (CPR 55.7(2))


In Consumer Credit Act cases, borrower may apply for time order in Defence or by application in proceedings (PD55 para 7.1) and N440)


Hearing dates

Court will fix a date on issue (CPR 55.5(1)


Time between service and hearing must be at least

-                     2 days (trespassers - non-residential land)

-                     5 days (trespassers - residential premises)

-                     21 days (all other possession claims)

CPR 55.5(2) and (3)


In addition

-                     hearing date will be not less than 28 days from date of issue (CPR 55.5(3)(a))

-                     standard period between issue and hearing will be not more than 8 weeks  (CPR 55.5(3)(c))


But time may be shortened (CPR 3.1(2)(a))

Particular consideration should be given to shortening time where

            (1)        the defendant, or a person for whom the defendant is responsible, has assaulted or threatened to assault:

                        (a)        the landlord;

                        (b)        a member of the landlord’s staff; or

                        (c)        another tenant;


(2)               there are reasonable grounds for fearing such an assault; or


(3)               the defendant, or a person for whom the defendant is responsible, has caused serious damage or threatened to cause serious damage to the property or to the home or property of another resident.  (PD 55, para 3.2)      


At the hearing (or any adjournment)

The court may

-                     decide the claim; or

-                     give case management directions  (CPR 55.8(1).


Case management

If the claim is genuinely disputed on grounds which appear to be substantial, directions will include allocation to track or directions to enable it to be allocated


Allocation

Only allocate to SCT if all parties agree (CPR 55.9(2)

If allocated to small claims track, FT costs regime applies but trial costs in the discretion of the judge and shall not exceed amount of FT costs allowable in CPR 46.2 if the value were up to £3,000 - i.e. currently £350.  (CPR 55.9(3))


Consider

-                     CPR 26.8

-                     amount of arrears of rent or mortgage installments

-                     importance to defendant of retaining possession

-                     importance of vacant possession to claimant

PD 55 para 6.1 - financial value not necessarily the most important factor - claim may be allocated to FT even though the value of the property is in excess of £15,000.


Preparation for hearing

Apart from claims against trespassers, all witness statements must be filed and served at least two days before hearing.

Should include evidence of arrears up to date at hearing - if necessary by including daily rate - but not prevent it being brought up to date at hearing. (PD 55 para 5.2)


Defendant should give evidence about amount of outstanding benefits and state of benefit claims (PD 55 para 5.3).


Mortgage possession claims - claimant should not less than 14 days before hearing send notice addressed to the occupiers giving details of hearing - and must produce a copy and evidence of service at the hearing. (CPR 55.10))


Where claimant serves claim form and particulars of claim, claimant must produce certificate of service at hearing (CPR 55.8(6))


Evidence at Hearing

If not allocated, or allocated to SCT, any fact that needs to be proved may be proved by evidence in writing - witness statement or claim form with statement of truth. (CPR 55.8(3))

-         but if disputed and maker of witness statement not present, court will normally adjourn so that oral evidence can be given. (PD55 para 5.4))


Accelerated possession procedure

Applies only to claims brought under Housing Act 1988 s21 to recover possession against assured shorthold tenant (CPR 55.11).

Must be started in county court for district in which property is situated.


Conditions set out in 55.12 must be complied with

(a)    tenancy entered into on or after 15 January 1989;

(b)   only purpose is to recover possession - no other claim made

(c)    tenancy did not immediately follow assured tenancy which was not AST

(d)   was an AST in accordance with s19A or s20(1)(a) to (c)

(e)    tenancy is subject to written agreement, or follows tenancy where there was a written agreement

(f)     s21(1) or s21(4) notice given


Claim form

-         must be in form set out in PD

-         contain information and be accompanied by documents required in that form

-         all sections must be completed


CPR 55.14 Defence

Defendant who wishes to oppose claim must file Defence within 14 days after service of claim form

Defence must be in form set out in PD


Consideration by judge

CPR 55.15 Claim referred to judge, either

-           on receipt of Defence, or

-           on request of claimant after expiry of 14 days


Judge can still consider Defence if Defence received out of time but before landlord's request is received.

If defendant does not file Defence and no request by claimant within three months after service, claim will be stayed.


Consideration of claim (CPR 55.16)

Judge will either

(a)    make an order for possession without a hearing

(b)   if not satisfied claim was served or claimant is entitled to possession, fix a hearing date and give case management directions - at least 14 days notice of hearing must be given; or

(c)    strike out claim if it discloses no reasonable grounds for bringing claim - if struck out, reasons must be given with the order - claimant may within 28 days apply to restore claim

N.B.  Manel v Memon (2001) 33 HLR 235, CA

The claimant landlord brought proceedings under the accelerated possession procedure (then CCR Ord 49 r6A) against the defendant claiming that he was a pre-1997 assured shorthold tenant.  The tenant filed a reply denying that the landlord had served a valid s20 notice because the notice served omitted the four bullet points with instructions and advice to the tenant set out in Form 7 of the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1998 SI No. 2203. 

            The Court of Appeal held that the notice was defective and a possession order made by the district judge was set aside. The Court of Appeal expressed concern that the district judge adopted the accelerated possession procedure and made a possession order without giving the tenant the opportunity to make representations at an oral hearing.  Holman J said

“[The accelerated possession procedure] is a robust machinery.  It depends upon district judges rigorously considering the documents which have been filed.  Some replies may be little more than a plea, however genuine for mercy. But if, on the face of the reply, a matter has been raised which, if true, might arguably raise a defence; or if the documents filed by the claimant might arguably disclose a defect in his claim, then the district judge must necessarily be “not satisfied” within the meaning of C49.6A(16) and a hearing on notice must be fixed.”

Although decided under CCR Ord 49 r6A, exactly the same considerations apply to accelerated possession procedure cases under Part 55.



Postponement of possession  (CPR 55.18)

Claimant may indicate in claim form s/he is content for judge to consider postponement without a hearing.   In that case judge may fix date for possession in six weeks without a hearing.


Otherwise, if Defendant seeks postponement on ground of exceptional hardship (Housing Act 1980 s89) judge must make an order for possession within 14 days, but direct a hearing on issue of postponement.

Hearing must be before date on which possession is to be given up.

If at hearing, judge satisfied will be exceptional hardship, may vary date on which possession must be given up - but to no more than six weeks after date on which original order was made (PD 55 para 8.4 and Housing Act 1980 s89).


Power to set aside or vary order on application within 14 days of service of order, or on court's own initiative (CPR 55.19)


Nic Madge

29.12.2008

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