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Part 55 Civil Procedure Rules - Possession Claims

Practice and Procedure Checklist: CPR 55 and PRACTICE DIRECTION 55A
FORMFINDER

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BEGINNING THE CLAIM May start claim in any County Court Hearing Centre (unless High Court exception applies in which case file certificate stating reasons) If not issued at Hearing Centre which serves the address where the land is situated, claim will be sent to correct Hearing Centre Claim Form Particulars of Claim Form of Defence to be sent with Claim Form plus Guidance Notes Court issues Notice of Issue No Acknowledgement of Service required Judgment in default under CPR 12 not available If D does not file Defence, may still take part in hearing Possession Claims Online 55.3(1)(a)(b) PD para 1 55.3(1)(c) 55.3(4) PD para 2.1/ para 2.5 55.3(5) 55.7(1) 55.7(4) 55.7(3) PD 55B N5 N120 N11M + N7 N260B
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PRE-HEARING TIMETABLE Court fixes date when it issues Claim Form or when [correct] County Court Hearing Centre receives the claim Hearing date will be not less than 28 days from the date of issue – standard period is not more than 8 weeks D must be served with Claim Form and Particulars of Claim not less than 21 days before hearing date Court may extend or abridge time Within 5 days of receiving notification of the hearing date from the court, C must send notice to the property addressed to "tenant or occupier", housing department of the local authority within which the property is located, and any registered proprietor (other than the claimant) of a registered charge over the property Contents of notice 55.5(1) 55.5(1A) 55.5(3)(a),(b) 55.5(3)(c) 3.1(2)(a) 55.10.2 55.10(3)(3A)
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EVIDENCE All witness statements must be filed and served at least 2 days before the hearing This does not prevent C from adducing up to date account information either orally or in writing at the hearing C should normally produce: • Account information/evidence of conduct of account • Charge Certificate with Mortgage/Conditions • Office copies • Clear Matrimonial Homes rights search – official certificate of search under LRR 2003, r 159(2); Sch 6, pt 5 • Any other relevant information (eg payment of social security benefits) Account information should include: • Amount of advance, current monthly instalment, balance • In cases of arrears of monthly instalments - in schedule form – dates and amounts of payments due/paid – for 2 years pre-issue (unless reliance placed on longer period) 55.8(4) PD para 5.2 PD para 2.5(6) PD para 2.5(2) PD para 2.5(3)
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HEARING C must bring 2 completed copies of Form N123 (Protocol Checklist) Where C serves Claim Form/Particulars it must produce at the hearing a Certificate of Service C must also produce: • Copy of notices to tenant/occupiers, local housing authority and other registered chargees • Proof of service At the hearing the court may decide the claim or give case management directions Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions will be given including allocation to track Court will have regard to a number of factors in deciding how to allocate to track including the amount of any arrears of mortgage instalments, and D’s conduct If the maker of a witness statement does not attend a hearing and the other party disputes material evidence contained in his statement, the court will normally adjourn the hearing so that oral evidence can be given Summary judgment is not available against a defendant in a residential mortgage possession claim If the court determines the claim, it will either make: • An order for possession absolute • A suspended order for possession PD 5.5 55.8(6) 55.10(4) 55.8(1) 55.8(2) 55.9(1) PD para 5.4 24.3(2)(a)(i) N123 N215 N26 N31
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EXECUTION Enforcement of an order for possession is by way of a warrant of possession Application is usually made to the County Court Hearing Centre which made the order, although it can be transferred A person applying for a warrant of possession must file a request for warrant certifying: (1) that the land which is subject to the judgment or order has not been vacated; (2) that notice has been given in accordance with the Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations 2010 If an order for possession has been suspended on terms as to payment of a sum of money by instalments the judgment creditor shall in his request certify (a) the amount of money remaining due under the judgment or order and (b) that the whole or part of any instalment due remains unpaid A warrant of execution shall be valid in the first instance for 12 months but can be extendedfor a period of 12 months at any one time A warrant of executiuon shall not issue without the permission of the court after certain events, including where six years or more have elapsed since the date of the judgment or order If the mortgagor re-enters the property, the mortgagee should apply for permission to issue a warrant of restitution The application may be made without notice but must be supported by evidence 83.26 83.26(2)(3) 83.26(4) 83.26(7) 83.3(3)(4) 83.2(3)(4) 83.26(8) 83.26(9) N325
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UNAUTHORISED TENANTS An unauthorised tenant should be alerted to the risk of repossession in two ways: (1) Upon receipt of a notice to 'the tenant or the occupier' which the lender is required to send to the mortgaged property within 5 days of being notified of the first hearing date by the court (2) Upon receipt of a prescribed form of notice of execution which the lender is also required to deliver to the mortgaged property at least 14 days before applying to court for a warrant of possession Upon receipt of either of these notices, the tenant may apply to court to suspend possession/postpone execution 5.10(2)(a) s 2 MR(PT)A 2010 and r3 DH (EPOM) Regs 2010 s 1(4) 55.10(4) Reg 4 and Sched N244
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APPEALS For the destination of appeals see CPR PD 52A An appeal against any decision of a District Judge goes to a Circuit Judge An appeal against any decision of a Circuit Judge goes to a High Court Judge All appeals need permission An application for permission to appeal can be made to the lower court or the appeal court (in the Appellant's Notice) If the lower court refuses permission to appeal an application can be made to the appeal court An application for permission to appeal to the appeal court (a first appeal) is made in writing, although it can be renewed orally The test for granting permission to appeal on a first appeal is that there is: (a) a real prospect of success; or (b) some other compelling reason for the appeal to be heard Permission is required from the Court of Appeal for a second appeal The test for granting permission to ppeal on a second appeal is that there is: (a) a real prospect of success and that he appeal raises an important point of principle or practice; or (b) some other compelling reason for the Court of Appeal to hear it Ordinarily an appeal is limited to a review of the decision of the lower court unless the court considers that in the circumstances it would be in the interests of justice to hold a rehearing The appeal court will allow an appeal where the decision of the lower court was: (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court PD52A Table 1 52.3(1) 52.3(2) 52.3(3) 52.4 52.6(1) 52.7(1) 52.7(2) 52.21(1) 52.21(3) N161