One of the court’s responses to the challenges of the pandemic has been to amend the way in which possession claims operate with the inclusion of a “triage” stage. Instead of a possession hearing being immediately listed, an order setting a “Review Date” is instead made.
The Civil Procedure Rules have been amended to remove the expectation that a possession hearing will be listed within 8 weeks and the Master of the Rolls published “the Working Group’s Overall Arrangements” which created the concept of the Review Date.
The stated aim of the Review Date is to give the parties and, in particular the defendant (who in most cases will be a consumer) the opportunity to seek advice from the free duty scheme and the parties an additional opportunity to reach an agreement without the need to proceed to a substantive hearing.
Clearly, in circumstances where the court service is facing significant challenges in operating at full capacity, any scheme which triages claims and sees a number of claims conclude by consent is attractive to the court service.
In concept, the scheme is also attractive to mortgage lenders. They want to do all that they can to help their customers stay in their homes and to offer appropriate forbearance. If an agreement on repayment of mortgage arrears can be reached with the customer (who has had appropriate advice) and can be concluded in a suspended possession order which provides for a sustainable repayment arrangement, this meets the commercial and regulatory aims of mortgage lenders in most cases.
Currently, the Civil Procedure Rules (Practice Direction 55C) provide that the removal of the listing of possession claims within 8 weeks will end on 30 July 2021. If nothing changes then one would expect that Review Dates would disappear and we will revert to the previous approach.
Will the provisions of Practice Direction C be extended with the consequent extension of the Review Date approach?
The court service may continue to see significant challenges to its capacity. Even prior to the pandemic resources were stretched and the Civil Courts tend not to be the focus of investment. If there is a significant uplift in claims that resource will be stretched even further, even if all social distancing measures are removed of which there is no certainty.
For these reasons, I can envisage that the court would be keen to maintain any scheme which triages cases and, potentially, releases court time. However, does the evidence stack up that Review Dates are achieving their aims?
There is, to date, no official data on the number of claims which are concluded at the Review Date. In the absence of such official data, we are, therefore, forced to look at real but more limited data from our own experience which relates to mortgage possession claims, rather than landlord and tenant matters.
The reality is that, strange as this may seem given that homes are at risk, defendants are not engaging in the Review Date process. Our clients and we have always sought to engage with customers prior to a possession hearing in order to find a solution which works for everyone and which is sustainable. This approach continues and works in many cases. However, it does not seem that the Review Date is having any impact.
Indeed, some members of the judiciary appear to have recognised this as well and we are seeing orders granted, following issue of the claim, which simply list the matter for hearing and do away with the Review Date.
Worthy, therefore, whilst the concept of the Review Date is, the reality is that it appears to have simply added an additional administrative step to the process which is not adding value but which is adding cost which, ultimately, is borne by the defendant.
Unless engagement rates increase, as a result of the Review Date, it would seem that a reversion to the original approach with an immediate listing of a possession hearing (which, of itself, raises the urgency for the defendant) is the best approach to encourage early engagement and resolution without the need for a formal hearing.