Review and Substantive Hearings
After a suspension of all possession matters in 2020, the Court finally re-commenced the re-listing of thousands of matters which were either due to be heard, or new matters that were issued by the Courts, albeit with a new procedure – the implementation of Review (“R”) and substantive (“S”) hearings.
The Claimant – usually the Landlord will issue proceedings (via PCOL, manual or accelerated proceedings) by sending the requisite signed and completed claim and particulars of claim to the Court closest to the address of the property that they are seeking possession of. The Court will then issue the Court proceedings and serve a copy of them back on the Defendant (tenant) and Claimant (Landlord).
The Review Hearing – “R” Hearing
The Review date is given to allow for the Defendant to obtain free of charge legal advice via the duty Solicitor, who will be nominated on the Notice of Review hearing, and this is usually 28 days after Court proceedings have been served, however we are aware of some Courts (particularly in the London area) taking significantly longer due to major backlogs and staff delays because of self-isolating and social distancing. The Claimant then must compile all of the documents – including all of the Court proceedings, Court Orders, a copy of the Notice that was served on the Tenant, and any other documents that are relevant, and these must be complied with the Court proceedings at the front and then each page numbered. The Claimant must then send a copy of the bundle they have compiled to the Court and to the Defendant (or to their Solicitor if they have been notified that they have a Solicitor acting for them) electronically – this means via email. The Courts have now set up specific possession-only email inboxes to deal with this work, and the email address for these are listed on the Review Hearing Order itself. With regards to the Defendant, an email address may be given on the Tenancy Agreement or even deposit information, if not, then the documents will have to be sent to the Tenant in the post.
When sending these documents to the Court and Defendant, they must be sent no later than 14 days before the review hearing. If the bundle is sent less than 14 days before the hearing, then there is a strong chance that the Court will simply not place the bundle on their Court file, which means when the Judge reviews the matter, there will be no bundle, and therefore the Landlord will be non-compliant. If this is the case, then the Judge has the option to either strike out the Claimants case – which means that the Claimant has to start from scratch, and re-issue proceedings, or the Judge will say that the matter will not be listed for an “S” hearing until a compliant bundle is filed.
Next, either within the bundle, or in a covering email, the Claimant must confirm the following:
- That they have served a copy of the bundle on the Defendant, and that it contains all relevant information.
- That the Claimant will be available on the date of the Review Hearing to discuss the matter with the Judge/Defendant/Duty Solicitor – if required.
- The Landlord will also need to inform the Court if the Tenant has been affected by COVID – if so, how. Have they lost income? Work? Have they suffered a bereavement?
This information must be supplied, along with the Electronic bundle to the Court, failing which the reviewing Judge has the option to either strike out the Claimants case – which means that the Claimant has to start from scratch, and re-issue proceedings, or the Judge will say that the matter will not be listed for an “S” hearing until a compliant bundle is filed.
The R Hearing itself is then conducted by a Judge based purely on documents sent to him, and without the attendance of either party, taking the Judge approximately 5 minutes. Ideally, this review time should be taken for the Landlord and Tenant to negotiate and see if any settlement can be reached.
The Substantive Hearing – “S” Hearing
If no settlement or compromise can be made at the “R” Hearing, then the matter will be listed for a “S” Substantive hearing – also known as a “possession hearing”, which is usually listed about . At this hearing, all of the parties must attend Court – whether this be in person or via remote link (the Court Order listing the hearing will tell you).
The “S” hearing is usually listed for approximately 15 minutes, at which the Court will either give further case management directions, because they are disputing something and opposing the claim the landlord is making, then the Court could inform the parties that they do not have the time to hear about the disputed issues that day, therefore the Court relists it for a day when they have a longer hearing time, and will tell the parties a date when they are to mutually exchange all evidence in relation to the issue.
The Court can also make a Possession Order at the substantive hearing, which means that they can Order that the Defendant is to leave the property. This can be as little as 14 days, or as much 56 days – (14 plus 42 – the most extension the Court can give is 42 days), however will not usually be any less than 14 days. If the Tenant has not vacated after this time then the Landlord can enforce by filing a Warrant of Possession at the County Court for a Bailiff to formally evict the tenant.
A Useful checklist:
- Don’t forget to inform the Court how your Tenant has been affected by COVID, even if you don’t know, tell the Court you’ve tried to contact your tenant, and they’ve not responded.
- Get your bundle prepped and ready – it must be filed 14 days prior to the review hearing – if not, it could delay the whole claim, and don’t forget to number each page.
- Be ready to attend the Substantive hearing. The Court is going to expect either the Landlord or his Managing Agent to attend, as someone needs to tell the Court about the situation with the tenant, and why possession is required.