Melanie Dirom, partner in the housing team at Knights plc, talks about the difficulties that remote possession hearings would create for unrepresented tenants.
On 27 March 2020, the Master of the Rolls ordered a stay of all possession hearings for a period of three months. This was extended by a further two months and is now due to end on 25 August 2020. The purpose of the stay was to prevent an increase in homelessness at a time when there was an overwhelming public health concern and the message from the Government was to stay at home.
Without a doubt there is likely to be huge backlogs and delays when the stay of proceedings is lifted. Not only will the court be dealing with all matters which were in the system and stayed, but the new cases for issue held-back over the last five months.
It is highly likely, and truly concerning that the court system is going to be overwhelmed. With the likely removal of the (often unhelpful) block listing regime due to social distancing issues where possession cases are listed together in the one block list and the berated Judge works their way through the never-ending list, parties could be waiting months for a district judge appointment. The use of “Nightingale” courts is being reviewed to deal with the backlog but if this means parties travelling a great distance to get the court who has availability to hear the case, this brings its own set of problems. It is therefore expected that in the short term, and to get the litigation wheel back turning, that parties may be asked to engage in remote hearings to avoid the need for face-to-face hearings.
Represented tenants are likely to fare better in possession hearings, whether they are remote or in-person, but most tenants are not represented. There are various reasons for this. Some tenants do not know that help is available, legal aid may not be available or they simply cannot find a representative to help them. The first time a tenant even thinks about getting legal advice in a possession case can be when they are asked if they want to see the duty housing representative at court. The advice and service which is provided by the duty scheme is crucial to all in the sector.
As well as the absence of the duty scheme, it will be very difficult for unrepresented tenants to adequately manage remote hearing by telephone or video technology. They may not have laptops to access Skype, they may not have email, they may rely on smartphones with limited data. As well as the technological issues, there may be language barriers to overcome and vulnerabilities where the use of technology to access justice is simply not appropriate. Sadly, this group may find they are at a greater risk of losing their homes if they are unable to engage in the process.
In some circumstances, remote hearings could be beneficial. They would allow the justice system to continue to function and could be an adequate substitute, but I do express some concerns. My fear is for those tenants who have not had the opportunity to seek advice before a hearing and may not have a full grasp of the implications of what they are facing.
Remote hearings in possession cases must be carefully considered and not because they provide a quick fix to a backlog. They are unlikely to be suitable for all cases and we may have to push back to the courts and insist that the hearing is conducted face-to-face.