On 6 April 2015, the Ministry of Justice introduced a new Pre-Action Protocol (“the PAP”) which will apply to a number of possession claims issued by social landlords. The PAP can be accessed in full here.
The PAP forms part of the Civil Procedure Rules and sets out the Court’s expectation of the parties’ conduct before a claim is issued. The intention is to provide a framework by which the parties can avoid litigation or minimise litigation costs by drawing out issues at an early stage. In general terms, failure to comply with a pre-action protocol can have serious consequences. In some cases, the Court can take compliance into account when deciding what order to make on costs (and can in some cases order the defaulting party to pay the other side’s costs). In extreme cases the Court can strike out a claim if a party has failed to comply, although in reality that is very rare.
It is widely accepted that the PAP is contradictory in places but is generally accepted that it will apply to claims:
- Based solely on rent arrears (Part 2), which largely mirrors the existing pre-action protocol relating to rent arrears. This only applies where the tenant has security of tenure, so for secure and assured tenancies.
- Where the Court’s only discretion in making the possession order is limited by section 89 of the Housing Act 1980, ie to delay the date for possession (Part 3). In theory this will apply to cases:
- Where the tenant has lost their security of tenure e.g. they have sub-let, or no longer occupy as their only or principle home, or have passed away and there are no further rights of succession;
- For introductory tenancies (although given that there is a statutory review process in place, this would seem somewhat repetitive and unnecessary);
- Where a Section 21 notice is served on an assured shorthold tenant; and
- Trespasser cases.
Part 3 requires the landlord, before issuing proceedings, to:
- Write to the tenant/occupier explaining why the landlord intends to seek possession and requiring the tenant/occupier to notify the landlord in writing, within a specified time, of any personal circumstances or other matters they wish to be taken into account. In many cases such a letter could accompany the notice seeking possession or notice to quit, so would not necessarily delay the issue of proceedings.
- The landlord should then consider any representations received, and if it decides to proceed with a claim for possession, give the tenant/occupier brief written reasons for doing so.
When possession proceedings are issued, it must be confirmed either in the pleadings or the witness evidence that the PAP has been complied with.
The intention of part 3 is to ensure that where an article 8 human rights defence is articulated by the tenant, the necessary information is available to a court at first hearing so that proportionality issues can be dealt with summarily or suitable directions can be given for subsequent hearings. However, the PAP fails to take into account that tenants are not always well placed to articulate an article 8 defence, particularly prior to the issue of proceedings when public funding is not always available. The extent the PAP will succeed in its aims is therefore debatable, and it is unlikely that the tenant will be precluded from raising an article 8 defence at the first hearing if they have failed to respond to the landlord’s PAP letter with personal circumstances that they want taken into account. Further, given that the Pinnock line of cases show that the threshold for a seriously arguable article 8 defence is a high one, it is questionable why the landlord should go to this trouble in cases where the occupiers have no right of occupation and an article 8 defence is unlikely to succeed.
There will be some exceptional cases where it will not be practical or appropriate to follow the PAP and advice will be needed on a case by case basis to avoid the potential sanctions for failure to comply.
The PAP has been in place for less than 6 months and it will take time for it to filter to the front line at the Courts. Until then, the full extent and force of the PAP is unknown, and we are taking a cautious approach in advising that the PAP is followed in the cases identified above. Many clients are becoming familiar with the requirements of the PAP and making provision for it in their procedures for instigating possession claims. The standard letters can be sent out with the notices and it should be possible to provide a written response to any representations before the notice expires. Time will tell if the PAP really has teeth or not.
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