Possession claim goes to trial

At the hearing, the court must decide whether the claim for possession is 'genuinely disputed on grounds which appear to be substantial'.[1] This could involve not only deciding whether a ground for possession is proved in the light of any substantial defence, but also, for example, considering the technical accuracy of the service of the notice.

If the possession claim is genuinely contested, the court can allocate the case to track and give case management directions rather than making an order at first hearing.[2]

The Court of Appeal has confirmed that whether the claim is ‘genuinely disputed’ has the same meaning as the test for summary judgment in CPR 24.[3] The relevant factors are whether:

• that claimant has no real prospect of succeeding on the claim or issue

• that defendant has no real prospect of successfully defending the claim or issue

• there is no other compelling reason why the case or issue should be disposed of at a trial

Wherever possible, both the landlord and tenant should include all the evidence they wish the court to consider in their particulars of claim or defence.[4] Any witness statements that either party wishes to rely on must be filed with the court and served on the other party at least two days before the hearing.[5]

Parties can rely on evidence contained in the witness statements without the witnesses themselves having to attend court.[6] This would be appropriate where the evidence being given is not in dispute. If the evidence is in dispute, the court can hear the witness if present in court, or adjourn the hearing so that the witness making the statement can attend court to give oral evidence.[7]

This provision could be utilised by social landlords (local authorities, housing associations, etc) to prove service of notices, levels of arrears, etc where the appropriate housing officer is unable to attend court.

In addition, if relevant to any alleged rent arrears, the tenant should give evidence about any outstanding housing benefit payments, the status of any claim for housing benefit and any pending challenge against an adverse housing benefit decision.[8]

Where the claim is genuinely disputed on grounds which appear to be substantial, the court should give case management directions at the initial hearing.[9]

Case management directions are orders from the court about how the case is to be conducted before the final hearing. Most cases will be allocated to a particular track, determined by the type of case it is, its financial value and its complexity. The track a case is allocated to will have a significant bearing upon what sort of case management directions are made by the court and how, in general, the case will be managed by the court.

As well as having regard to the usual factors that apply to all cases when allocating,[10] the court must also have regard to:[11]

• the amount of any arrears (if applicable)

• the importance of vacant possession to the landlord.

The financial value of the property is not necessarily an important factor.[12]

Possession claims cannot be allocated to the small claims track unless both parties agree.[13] In practice, the vast majority of possession claims allocated to track will proceed in the fast track. Once allocated, the claim will proceed as normal to a final hearing. This could be anything from six to 12 months depending on the case management directions and how busy a local court is. In case of uncertainty, advisers should check with the listings officer of their local court.

HM Courts & Tribunals Service guidance for court and tribunal users during the coronavirus (COVID-19) outbreak outlines practices and procedures to minimise risks to the judiciary, staff and all those who attend courts and tribunals for hearings. The guidance will be updated when new advice is available.