The parts of the Civil Procedure Rules 1998 (CPR) dealing with housing cases have been described as a dog's breakfast.

Of most concern is the position regarding possession proceedings.Some old favouritesThe problems in this area have apparently arisen because the Lord Chancellor's Department's original intention of making no changes to possession procedure could not survive the abolition of the fixed date summons procedure (CCR ord 3 r2) and the implementation of the CPR.

Although CPR part 7.9 provides that 'a practice direction may set out the circumstances in which the court may give a fixed date for a hearing when it issues a claim', no practice direction was produced until 1 April 1999.

The aim of the practice direction (PD 8B) is, so far as is possible, to preserve the old regime.

For example, claims must be started in the court for the district in which the property is situated (PD, 8B.7).

Claimants must use the pre-26 April forms (N5, N119 and N120 -- see part 4 (forms) and PD 8B.8(2)).

There is no change in the information that must be included in the particulars of claim (see CCR ord 6 rr 3 and 5 which are retained in CPR sched 2 and, although it may not apply to part 8 claims, PD to CPR part 16, para 6).

As before, on issue, the court fixes a date for the hearing (PD 8B.9) and, except in cases where other rules provide for a shorter period, 21 days notice of the hearing must be given.

At the hearing the court may dispose of the case or give directions.All this is clear and simple.

Similarly the most obvious change, the initial listing of claims by mortgagees and by landlords based on rent arrears in private, causes few problems (CPR part 39.2(3)(c) and PD to part 39 para 1.5(1) and (2).

The fact that a hearing is in private does not affect existing rights of audience (PD to part 39, para 1.12).Statements of truthOther matters are not so obvious.

Does a landlord have to complete a statement of truth? None of the forms prescribed for possession proceedings includes a statement of truth.

Accordingly, many people assumed that no statement of truth was necessary.

However CPR part 22.1(1) provides that a statement of case must be verified by a statement of truth.

CPR part 2.3(1) provides that 'statement of case' means '.

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particulars of claim where these are not included in a claim form .

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.' CPR part 22.1(7) and PD to CPR part 22 para 2.3 both envisage situations where the statement of truth is included in a separate document.

The better view is that a statement of truth in the form of wording contained in part 22.1(7) should be prepared and filed with the claim form.

Careful thought needs to be given by institutional landlords and their advisors as to whether statements of truth should be completed by housing officers, managing agents, or solicitors.

H owever, failure to comply with CPR part 22.1(1) is not necessarily fatal to proceedings.

CPR part 22.2(1) provides that proceedings remain effective but the claimant cannot rely on the contents as proof of the facts alleged without calling evidence and the court may strike out the statement of case.Defence?Other difficulties are caused by the fact that the part 8 procedure applies to possession proceedings (PD 8.A2).

Part 8 is designed for cases which 'are unlikely to involve a substantial dispute of fact' (CPR part 8.1(2)(a)).

As a result there is no requirement in the rules or the practice direction that a defence or acknowledgement of service should be filed or served (see PD 8.B12, cf CPR part 15.1.).

The standard wording of form N5 states that a defendant must fill in the reply form (N11) and send it to the court within 14 days of service.

Although there is no provision in the rules stating that the Court Service must send out form N11 with form N5, the Court Service is still sending out these forms with possession claims.

Can a prescribed form impose an obligation that does not appear in a rule or practice direction? Can a defendant be penalised in costs if he or she turns up at the initial hearing to defend without having served a defence if the rules do not include such a requirement? Whatever the technical answers to these questions may be, tenants should, in line with Woolf principles of speed, cost effectiveness and openness ensure that landlords are informed if proceedings are to be defended as soon as possible after service.

(Part 12 (judgment in default) cannot apply to possession proceedings -- see part 8.1(5).)Written evidenceThere are other ways in which the part 8 procedure is inappropriate for possession proceedings.

Claimants must file any written evidence on which they intend to rely with the claim form (CPR part 8.5(1)).

CPR part 8.6 provides that no written evidence may be relied on at the hearing unless it has been served in accordance with part 8.5 or the court gives permission.

Is form N5 to be treated as a claim form? Does CPR part 8.6 apply to possession claims? It is clearly in everyone's interest for landlords to comply with this requirement by filing and serving copies of tenancy agreements and notices on issue, but it is essential that in cases based on rent arrears the court is shown an up-to-date schedule of arrears at the hearing.

Conversely, there is no requirement that a defendant file or serve written evidence before the initial hearing since part 8.5(3) only applies where a defendant files an acknowledgement of service within the meaning of CPR part 10.On the right trackAt the hearing the court may proceed to hear the case and dispose of the claim or give case management directions, including allocation to track (PD 8B.13).

Which is the appropriate track for possession proceedings? Some have suggested that all possession claims should be allocated to the small claims track.

Others have said that they should all be allocated to multi-track.

Both views are wrong.

Although CPR part 26 (allocation to track) is disapplied by CPR part 8.9(c), it is reapplied by PD 8B.15 and part 8.1(6)(b).

Accordingly the normal principles apply -- see CPR part 26.6 to 26.10.

In addition to the financial value of the claim, consideration should be given to the importance of a tenant preserving his or her home, the importance of vacant possession to a landlord, and, in neighbour nuisance cases, the effect on other people (see CPR part 26.8, and in particular sub-paras (1)(b) and (g)).

In rent arrears cases t he value of any counterclaim or other part 20 claim and the complexity of any matters relating to it should be taken into account (see CPR part 26.8(1)(e), and, in relation to counterclaims for breach of repairing obligations, CPR 26.6).

The norm will be for possession proceedings with a counterclaim for significant works to be carried out to be allocated to the fast track or multi-track.Defended mortgage possession claims are relatively rare but there is no guidance in the rules or any practice direction as to how the court should assess the financial value of such a case.

In view of CPR part 26.8(2)(a) it could be argued that the amount in dispute is what matters, but the potential loss of a borrower's home which will inevitably be worth more than £15,000 and CPR part 26.8(1)(b) are strong pointers towards allocation to multi track.It is the intention of the Lord Chancellor's Department to convene a working party to consider housing cases.

The sooner it is set up the better.