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The housing possessions backlog and Nightingale Courts: a simple solution?

Natalie Foster explores the potential role of ‘Nightingale Courts’ and extended operating hours in unclogging the housing possessions backlog – and ensuring that the wheels of justice keep turning.

Now that possession hearings have resumed, coupled with the expected relaxation of social distancing and the lifting of the work from home guidance from 19 July 2021, what can realistically be done to deal with the enormous backlog in the county courts?

Members of 42 Bedford Row’s housing team have been looking at some of the potential solutions. Read Catherine Urquhart's article, Can mediation solve the housing possessions backlog? This article examines whether the 'Nightingale Courts' can make a difference.

In March 2020, when the courts of England and Wales suspended all possession hearings and paused all eviction proceedings, no-one that worked within the system missed the significance of those steps: the pandemic was going to exacerbate the significant backlog that was already present, in county courts up and down the country. There was a particular impact on housing possession hearings that were frozen outright.

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On 19 July 2020, the government announced that it would be opening Nightingale Courts as part of its court recovery plan to address the impact of COVID-19 on the justice system. The Nightingale Courts were set to hear not just civil cases, but also family and tribunal work, as well as non-custodial criminal cases. The Government said that these courts would go some way to ease the pressure on the court system, and tackle the number of outstanding cases. It was part of the Government’s plan to ensure justice continued to be served throughout the pandemic.

When social distancing measures do end, whether as expected on 19 July 2021 or later, will the use of Nightingale Courts end too?

Thirty-one Nightingale Courts have been opened thus far; however, earlier this year, the Government revealed that – in more than a dozen of the locations hosting Nightingale Courts – the hire agreements would end in June 2021. Despite negotiated extensions, at least five Nightingale Courts have now closed, and HMCTS has said it will consider replacement venues in locations where ‘an operational need remains’.

Well… this could be an opportunity for HMCTS to utilise this service for one of the worst-affected parts of the county court system: possession hearings.

Bar Council chair Derek Sweeting QC has said: “Unless the Government urgently commits to long term and sustained investment in the courts and the wider justice system, the number of cases stuck in the courts will continue to rise. Behind every number in this backlog are victims of crime, defendants, witnesses and their families, putting their lives on hold while they wait years to see justice done.”

There is an opportunity for some Nightingale Courts to be used exclusively for possession hearings. They could be specialist centres, with dedicated duty housing officers present to assist landlords and tenants, where necessary. These courts could be used in conjunction with the provisions already applied in county courts across the country.

In the same way that there are specially trained magistrates that sit in the family court and magistrates’ courts, there is a real opportunity for magistrates to be used at Nightingale Courts: to deal with Review Hearings, case management hearings, and other first return listings.

Magistrates or judges could deal with Review Hearings exclusively from these centres, and then all first listing appointments could be heard at one of these centres, in London, Manchester, Liverpool et al.  This would streamline the process and provide consistency in the approach taken by the courts to the administration and initial listing of these possession cases.

The former Law Society president David Greene recently said: “It is also vital the Government does not impose any artificial restriction on the number of judicial sitting days, as happened prior to the pandemic, as this was a significant contributor to the current backlog. If court rooms are available, the government must fund the judges to sit in them.”  

There is also the possibility of introducing ‘Extended Operating Hours’ for possession hearings in Nightingale Courts: early sittings from 8am to 10:30am, and/or late sittings from 4:30pm to 7pm.  A pilot began for extended court hours in September 2019, and there may be a case for its introduction more widely, for a temporary period, to clear some of the backlog – especially if the early and late sitting are conducted remotely.

Without touching too much of a sore point, it is fair to say that Extended Opening Hours remain largely unpopular amongst practitioners.

Whatever happens, there are undoubtedly a variety of quite simple measures, which HMCTS may take in order to tackle the backlog – first among them being to continue the use of Nightingale Courts.  We will soon see which measures survive the lockdowns.

Natalie Foster is a barrister at 42 Bedford Row.

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