The Covid 19 pandemic was, as many have already pointed out, an unprecedented period and whilst we are beginning to see some return to normality, the issues it caused will continue to reverberate for some time to come. 

The health and wellbeing of individuals and families had to be the priority, and this remains the case. However there has been an impact on pretty much every area of life including personal finances, the laws of the land and, ultimately, the wider economy. 

One particular area which has been affected, and indeed has subsequently experienced significant change, is that of possession proceedings. 

Given the severity of the pandemic and the related economic issues such as lockdown and furlough, it was unsurprising that lenders, through their own policies and approach and a steer from government, essentially put a firm hold on actions. Expected, and the right thing to do. 

However, the client issues which might have existed prior to the pandemic, grew through the crisis and those which are in the pipeline still require to be managed, and one of the major changes which took place was the introduction of temporary provisions in September 2020 relating to possession proceedings in England and Wales. These are slated to remain place until November 2021. 

 These changes were contained in the Civil Procedure Rules and the new provisions were known as “Overall Arrangements”. 

In short, the provisions meant that lenders across E&W must provide courts with in-depth information relating to the impact of the pandemic upon their customers or their dependents.  

One of the most notable changes was the requirement for a Review Date to take place in repossession proceedings following the issue and service of a possession claim.  

The aim was to provide the lender and customer with a specific point in time to discuss the matter and to provide the opportunity to try and reach an agreement prior the matter proceeding further. Importantly the Review Date is not a hearing date – the parties do not go before a judge. That said, the judge may contact either or both of the parties by telephone or video.  

At the Review Date the Court will review and consider the paperwork and electronic bundle filed by the lender and having done so will determine whether to assign a Substantive Hearing, previously the first possession hearing, or to provide some other firm of direction. 

Thus far, the system has become well established and works well. The Review Date certainly provides the initial opportunity for each party to try and resolve the matter. All good, but – and it’s a fairly sizeable but – there have been some issues.   

There have been instances of judges granting possession orders at a Review Date which creates inconsistency and is simply incorrect. There have been delays and additional costs, and the level of telephone engagement from the Court and customers or their advisors has been relatively low. 

Furthermore, few cases have settled on the Review Date which, at the very least raises questions around their effectiveness and it appears that the intention for the Review Date to be a chance for the customer to get advice and achieve a settlement has not been evident in practice.  

There is definitely consensus that the system enhances the element of fairness towards customers who are experiencing difficulty and there is no doubt that everyone would wish to afford customers the opportunity to engage. It also should be noted that the profile of these re-start cases have typically been those customers in arrears prior to Covid. It’s therefore reasonable to conclude that the lack of engagement at the Review Date may not be typical versus the profile of more current cases.   

Of course, these changes are just one of many that lenders have had to adapt to and with November on the horizon, the looming question has to be, what next?  

If the temporary provisions are not extended beyond November, and the requirement for a Review Date is no longer necessary, what happens after that? 

Will lenders simply send a letter to their customers to encourage negotiation? Will a formal meeting still be required? Or do we go back to pre Covid processes? 

The government clearly has much on its plate at the moment but that is not sufficient reason for any decisions to be taken at the last minute on this most important of subjects. 

That said, in the absence of further guidance, there will be a desire for lenders to at least attempt to achieve similar engagement prior to any court hearing and the time to start talking should be sooner rather than later.  

Myra Scott is partner and head of lender services practice group at Aberdein Considine.