Garden Court Housing Team and Liz Davies, Joint Head of Garden Court Chambers respond to Clerkenwell & Shoreditch County Court consultation on arrangements for listing possession claims after 25 June 2020.
- This is a reply to the letter dated 20.05.20 sent by the Operations Managers of Clerkenwell & Shoreditch County Courts and Stratford Housing Centre concerning arrangements for hearings in possession lists, urgent business lists and the general lists after the end of the stay imposed by PD 51Z, potentially from Monday 29.06.20.
- This reply is sent on behalf of the Housing Team at Garden Court Chambers. We are one of the largest teams of specialist housing law barristers in the country, acting predominantly for tenants and in many cases funded by Legal Aid. We responded to the Civil Justice Council’s Rapid Consultation on the impact of Covid-19 on the civil justice system here.
- Our position is that there should be a return to in person, face-to-face Court hearings as soon as circumstances allow. We understand the public health reasons for limiting those hearings at present. Justice and safety should not be in conflict. Once the pandemic emergency has lifted, we advocate a return to in person Court hearings as the norm and as the most effective form of open, accessible and fair justice.
- We have seen the draft response prepared by the Housing Law Practitioners Association, which we anticipate will have been sent by other housing practitioners. We endorse and adopt the points it makes.
- The introduction to the letter states that most possession hearings until the Autumn will take place remotely, but the actual proposals are to list all hearings in the first instance by telephone or video calls by BT Meetme, Skype or Microsoft Teams. A significant proportion of our clients are vulnerable for a range of reasons and have difficulty using technology. We are concerned that they will not be able to participate in hearings and so their effective access to justice will be highly limited.
- We are also concerned that they may not have the opportunity to obtain legal representation and/or give instructions prior to attending the hearing.
- We note that the proposals suggest revising notices to advise defendants to seek early legal aid assistance and that there is an expectation of parties to engage with one another before the hearing date more than previously. It is unrealistic that there will be any significant change in behaviour. Many of our clients have great difficulties in engaging with their landlords. We are aware from those that assist, under the housing possession duty scheme, that many tenants attend hearings having already unsuccessfully contacted a list of housing law firms. It is only likely to be more difficult for them to obtain representation given the difficulties faced by housing law advisers due to ongoing social distancing.
- Our view is therefore that if possession hearings are to restart, it is essential that this must be accompanied by an effective duty scheme to which all tenants with hearings listed on that day have access.
- It is also essential that tenants who are not practically able to access technology to participate in the hearing remotely away from the court have some method of participating by attending the court on the day.
- We would expect that the Courts have undertaken an equality impact assessment in relation to the ability to participate in remote hearing for persons with disabilities and those with childcare or other caring responsibilities, whether those people are lawyers or parties.
- We conclude by emphasising that applications for adjournments and for stay should be readily granted where: a party says that he or she wishes to obtain legal representation and cannot do so because of the current restrictions; a party is prohibited from leaving home or attending court because of the restrictions and risk to that person’s health; a party indicates that he or she cannot participate in remote hearings for technological reasons.
Yours,
Liz Davies, Joint Head of Chambers
Justine Compton and Marina Sergides, co-convenors Housing Team
