Lessons in protocol

The Rent Pre-Action protocol, which came into force on 2 October 2006, covers all residential social landlords, local authorities and housing action trusts '“ the social housing sector '“ and it applies only to claims for possession based solely on rent arrears. But do not turn to the next page now if you do not do this kind of work, as there are some important lessons to be learned from this protocol, such as the use of a checklist and enforcement of compliance.

In this protocol the obligations on the landlord are comprehensive and extensive. They arise out of the subject matter, namely social housing and the need to support the tenants.

The protocol has its own sanctions for non-compliance which are in addition to those in the CPR Practice Direction '“ Protocols. In all but mandatory possession ground cases, the court has the power to adjourn, strike out or dismiss for non-compliance. Any breach supports the exercise of discretion by the judge in favour of the tenant.

Impact yet to be assessed

As yet the jury is out as to the protocol's impact. Leeds City Council prepared an early impact assessment which revealed that at first there was a fall off in the number of cases issued following the implementation of the protocol but that cases were returning their pre-protocol levels. The Ministry of Justice latest statistics confirm the pattern. By the quarter April 2007 to June 2007 the estimated impact was a reduction in issue of 10 per cent although the scope for estimation error is great.

Unlike CPR Part 7 cases, there is no allocation questionnaire, which covers any protocol compliance, to consider in rent possession cases, limited though that information is on compliance with any protocol. Defence forms are rare and the duty solicitor or Citizens Advice Bureau (CAB) adviser (where the county court is blessed with an advice desk) may have limited opportunity on the day to check if there has been compliance. It is important that the protocol is not forgotten when the parties come before the district judge. When I am hearing a rent possession case, I want to know that the protocol has been complied with. Many are adopting the checklist produced originally by Geoff Day from Yorkshire Housing. This sets out the 18 obligations, 17 on the landlord and one on the tenant. With knowledge there has been compliance, it is less difficult to exercise the court's discretion in the tenants' favour in the cases where the protocol applies.

The tenant who turns up at court against the background of full protocol compliance and having without any justification ignored all the social landlord's attempts to engage is likely to get an unsympathetic hearing.

However, there is as yet no decided case on the conflict that a local authority has between its rights and duties as a social landlord with its obligations under the Children Act 1989 where there are children in the property. Any child about to be evicted from their home must be a child in need.

The Civil Justice Council has resolved that social landlord rent possession cases should no longer be listed in large blocks, but be given a minimum of five minutes each, six per half hour, and has advocated that this practice be adopted nationally. To turn up at court and find that you have a few minutes to 'save your home' was considered to be unfair. With a substantial increase in defendant attendance as well as expert advice available to defendants at court under Duty Solicitor schemes and by advice agencies, the time taken to deal with these cases has increased.

The CAB's recent paper 'Unfinished Business' published in May 2008 makes reference to the government's homeless prevention agenda recommending that the rent pre-action protocol is more thoroughly embedded in court procedure to reduce variation in practice. The CAB comment on the positive impact of the protocol as reported by its county court advisers. The report raised the issue of variations in practice of district judges. The report recommends further training. I addressed this in March 2008 when I delivered a talk to 450 district judges on the Rent Protocol and its enforcement. My talk is being delivered to the deputy district judges later this year.

In addition the Court Service has been asked to consider amendments to the claim form in housing cases to give defendants more information on the protocol. The CAB's conclusion that the protocol has helped to ensure that housing associations only take possession action for rent arrears as a last resort is welcome.

Mortgage possession protocol

Mortgage possession cases are destined to follow suit. In the current economic climate with an increase in the volume of mortgage possession litigation already established by the statistics for the first quarter or 2008, a protocol for this category of cases cannot come too soon. A draft protocol is out for detailed consultation and the aim is to have the protocol up and running by next April. It has been put together by the Housing and Land Committee of the Civil Justice Council which I chair.

The Mortgages of Home Finance Conduct of Business Sourcebook produced by the Financial Services Authority applies to all post-October 2004 first charges and sets out the rules to be followed where default occurs (although non-compliance is unlikely to afford a defence or lead to an adjournment or strike out on a mortgage possession claim). The intention is to apply a significant part of theses rules to all other mortgages. A consistent and fair approach in accordance with the overriding objective is important.