A short introduction to possession hearings
Possession hearings are usually short, practical hearings in the County Court. They are often listed in the county court hearing centre serving the address of the property, and commonly appear in a possession “block list”, meaning several possession claims are listed at the same time. The result is that hearings can move quickly. Advocates therefore need to identify the key issues, the relevant documents and the order sought with clarity and economy.
A useful starting point is that default judgment does not apply in the ordinary way. Even if a defendant has not filed a defence before the first hearing, the court will usually consider whether the defendant has attended and raised matters which amount to an arguable defence. If so, the court may give permission for a defence to be filed and adjourn the claim for directions. If the defendant brings a draft defence to the hearing, the claimant’s advocate must be ready to respond to it and explain why the matters raised are not substantial, or why they do not amount to a defence to the possession claim.
The central question at the first hearing is whether the claim is genuinely disputed on substantial grounds. If it is, the court will usually adjourn and give case management directions. If it is not, the court may make a possession order there and then. In practice, this means the claimant’s advocate must be able to set out, in short and clear terms, why the claimant is entitled to possession. The defendant’s advocate, by contrast, will usually seek to show that there are disputed factual or legal issues which cannot fairly be determined at a short first hearing.
If a possession order is granted, the court will then need to decide the form of the order. This usually involves three issues: the date by which possession must be given up, whether any money judgment should be entered, and costs.
The time for giving up possession depends on the type of claim. In cases based on mandatory grounds, such as serious rent arrears, possession will often be ordered in 14 days. Where the grounds are discretionary, the court has wider powers and may allow a longer period before possession has to be given up. Defendants will often ask for as much time as possible, particularly where they need to find alternative accommodation. The claimant’s advocate will usually argue that further time is unnecessary, or that there are no special circumstances justifying a delay.
The court may also be asked to enter judgment for rent arrears, mesne profits, interest or other sums due. Where those sums are claimed, the claimant should be ready to take the judge to the evidence supporting them, such as rent schedules, statements of account or contractual provisions. It is important not simply to assume that the court will include the sums claimed. The figures must be properly evidenced.
Costs are also a common issue. The usual rule is that costs follow the event, meaning that a successful claimant will normally recover its costs. Where the tenancy or mortgage documents contain a contractual right to costs, the court will usually give effect to that right, including where appropriate on the indemnity basis. Judges may use the fixed-cost figures as a guide to what is proportionate, often producing costs in the region of several hundred pounds. However, the claimant’s advocate may need to explain why the fixed-costs regime does not apply, or why the costs should not be assessed down. Where there is a contractual entitlement to costs, that may disapply the fixed-costs regime.
Mortgage possession claims have their own practical feature. A lender will often be entitled, under the mortgage terms, to add the costs of a successful possession claim to its security. In that situation, the possession order may be silent on costs, because the costs are dealt with through the mortgage account rather than by a separate costs order.
In some cases, the court may grant a possession order but suspend it on terms. This means that the order exists, but cannot be enforced so long as the defendant complies with conditions set by the court. Those conditions commonly require the tenant or borrower to pay current rent or mortgage instalments, plus an amount towards arrears. If the conditions are breached, the claimant may then be able to enforce the order. Suspended possession orders are often used where the court considers that the defendant should be given a final opportunity to remedy arrears and avoid losing the property.
If no possession order is made at the first hearing, the court will usually give case management directions. The content of those directions depends on the case. If no defence has been filed, the order may simply give permission for a defence to be filed, often within 14 days, with provision for a reply and directions questionnaires or a further short directions hearing. If a defence has already been filed, the court may give directions towards trial, including track allocation, disclosure, witness statements, bundles, a trial window, a time estimate and, where necessary, expert evidence.
From the claimant’s perspective, the aim is usually to keep the case moving quickly and proportionately. This may mean asking for limited directions, such as exchange of witness statements followed by a further disposal hearing. Defendants, by contrast, may seek longer gaps between procedural steps. The advocate’s task is therefore to keep the court focused on what is genuinely necessary to resolve the possession claim fairly and efficiently.
