Benchmarks -- possession -- the changing regime -- a gentle guide through next month's extensive changes to land possession claims

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Possession proceedings were not included in the original Woolf reforms.

That situation is about to change.

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The Civil Procedure Rules 1998 (CPR) part 55, which deals exclusively with possession claims, will come into force on 15 October 2001.

It will apply to all possession claims issued on or after that date.

It is accompanied by a practice direction.

New prescribed forms have also been produced.Calling landlords, mortgagees and licensorsPart 55 must be used where court proceedings include a possession claim brought by a landlord, a lender or a licensor (rule 55.2).

It must also be used in a claim brought against trespassers, including those whose names are unknown.

However, part 55 does not apply where a landowner seeks an interim possession order (IPO) under the Criminal Justice and Public Order Act 1994.

County Court Rules (CCR), order 24 part II, which deals with IPOs, is retained in schedule 2 to the CPR.The basic rule is that possession claims must be started in the county court for the district where the property is situated (rule 55.3(1)).

But a claimant may start a possession claim in the High Court if there are exceptional circumstances (PD55 paragraph 2.1), for example, where there are complicated disputes of fact, where there are points of law of general importance, or where there is a claim against trespassers with a substantial risk of public disturbance or of serious harm to persons or property which requires immediate determination.

The value of the property and the amount of the financial claim may be relevant circumstances, but they alone will not justify starting the claim in the High Court.The claim form must be in prescribed form (N5 -- PD55 paragraph 1.5) and be verified by a statement of truth (rule 22.1).

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

If proceedings are issued in the High Court, the claim form must be accompanied by a certificate stating the reasons for bringing the claim in the High Court.

That also is to be verified by a statement of truth.Particulars of claim must be filed and served with the claim form (rule 55.4).

All particulars of claim must comply with part 16.

This means that they must contain a concise statement of facts and, if interest is sought, give details.

PD55 paragraph 2 imposes other general requirements for particulars of claim in possession actions.

In addition, there are prescribed forms for particulars of claim in actions based upon non-payment of rent (N119), residential mortgages (N120) and allegations of trespass (N121).

In arrears cases the particulars of claim must set out, in schedule form, the dates when the arrears arose, all amounts due, the dates and amounts of all payments made and a running total of the arrears.

Failure to use the correct form is not necessarily fatal.

An error of procedure or a failure to comply with the CPR does not invalidate the step taken and the court may make an order to remedy the error (rule 3.10).

In considering such matters, the court should have regard to the overriding objective (rule 1.1).The normal rules in part 6, which deals with service of claim forms and particulars of claim, apply to part 55 claims.

Service may be effected by personal service, first class post, leaving documents at the defendant's last known address and in some circumstances via the document exchange or by fax by the court.

Where the claim is brought against trespassers who are persons unknown, service should be effected by attaching the claim form to the main door or some other part of the building where it is clearly visible and by placing it though the letter box in a sealed transparent envelope, addressed 'to the occupiers.'DefendingPart 55 contains modifications to the normal rules for defendants who wish to respond to claims.

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

Nor does part 12 (default judgment) (rule 55.7(4)).

It is not possible for a claimant to obtain a possession order by default if the defendant fails to file or serve a defence.

The defendant's response must be in the form annexed to PD55 paragraph 1.5.

In practice this means that the defendant or the defendant's solicitor must complete forms N11R (Defence form -- rented residential premises) or N11M (Defence form -- mortgaged premises).CPR rule 15.2, which states that a defendant who wishes to defend must file a defence within 14 days, applies to most part 55 claims.

However, failure to file or serve a defence does not prevent the defendant from taking part in the proceedings.

It may though be taken into account when deciding what costs order to make (rule 55.7(2)).

The requirement to file and serve a defence does not apply in claims against trespassers (rule 55.7(2)).The hearingCourts will fix a date for the hearing on the issue of the claim form (rule 55.5(1)).

The time between service of the claim form and the hearing must be at least 21 days in all possession claims apart from those against trespassers.

In addition, part 55 provides that the hearing date will be not less than 28 days from the date of issue (rule 55.5(3)(a)) and that the standard period between issue and the hearing will be not more than eight weeks (rule 55.5(3)(c)).

There must be a minimum of two days between service and the hearing in claims against trespassers of non-residential land and five days where trespassers are alleged to be in possession of residential premises (rule 55.5(2) and (3)).

These times may be shortened in accordance with the normal provisions for extending or shortening time contained in rule 3.1(2)(a).At the hearing or any adjournment, the court may decide the claim or give case management directions (rule 55.8(1)).

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.

Judges will normally allocate to the fast or multi-track.

Possession claims may only be allocated to the small-claims track if all parties agree (rule 55.9(2)).

In considering allocation, courts should take into account the normal criteria contained in rule 26.8 (value, remedy sought, complexity, number of parties, etcetera).

In addition they should take into account the amount of arrears of rent or mortgage instalments, the importance to the defendant of retaining possession and the importance of vacant possession to the claimant.Except in claims against trespassers, all witness statements must be filed and served at least two days before the hearing.

They should include evidence of arrears up to the date of the hearing, if necessary by including a daily rate.

This does not prevent any arrears statement from being brought up to date at the hearing (PD55 paragraph 5.2).

If the claim has not been allocated to track, or has been allocated to the small claims track, any fact that needs to be proved may be proved by evidence in writing -- either in the form of a witness statement or the claim form with its statement of truth (rule 55.8(3)).

If the evidence is disputed and the maker of the witness statement is not present, the court will normally adjourn so that oral evidence can be given (PD55 paragraph 5.4)).AccelerateThe accelerated possession procedure, which allows landlords to obtain possession orders without a hearing (CCR order 49 rule 6A), is retained in a slightly modified form within part 55.

It applies only to claims brought under section 21 of the Housing Act 1988 to recover possession against assured shorthold tenants after service of two months' notice (rule 55.11).

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