There is a growing body of “Coronavirus” jurisprudence (such as Re One Blackfriars Ltd [2020] EWHC 845 (Ch)), that promotes the ‘business as usual’ message to conduct as many hearings as possible remotely. However, the Legal Adviser to the Master of the Rolls has stated that this message must be balanced against limited resources to deal remotely with the two million claims issued annually in the County Court.
Possession claims under CPR Part 55 have been subject to rapid reform during the current COVID-19 crisis. CPR Practice Direction 51Z stayed all possession proceedings under CPR Part 55 until 25 June 2020. Just under one month later, PD51Z has been amended to address issues that have arisen in practice and been flagged by practitioners. These amendments seek to adjust the balance, by ensuring that PD51Z does not become a trespassers’ charter.
Given these important updates, Selborne Chambers has fast-tracked our sixth bulletin, in which:
Daniel Webb sets out the key procedural developments in the Practice Direction 51Z
Selborne Chambers remains open during this time. If you have any queries or requests in respect virtual meetings or instructing us during this time, please do not hesitate to contact a member of the clerking team on +44 (0)20 7420 9500 or at clerks@selbornechambers.co.uk.
Mark Warwick QC
PRACTICE DIRECTION 51Z
PD51Z was introduced on 27 March 2020, as set out in an earlier Bulletin. The key effects were to:
(i) Stay all CPR Part 55 possession proceedings and proceedings seeking to enforce a possession order by warrant or writ until 25 June 2020 (paragraph 2); and
(ii) Exclude claims for injunctive relief from the automatic stay (paragraph 3).
The Property Bar Association (‘PBA’) and the Property Litigation Association (‘PLA’) raised concerns in their letter dated 8 April 2020, to which the Legal Adviser to the Master of the Rolls replied on 20 April 2020.
Possession claims updated
As to possession claims, Practice Direction 51Z has been amended (here and here), with effect from 18 April 2020. The key amendments are twofold:
First, paragraph 2A states that the stay does not apply to:
(i) A claim against trespassers to which CPR r.55.6 applies (addressed further below);
(ii) An application for an interim possession order under Section III of Part 55;
(iii) An application for case management directions which are agreed by all the parties.
Secondly, paragraph 3 has been amended to clarify that the stay does not preclude the issue of any claims.
Effects of Practice Direction 51Z
It is now beyond doubt that:
(i) PD51Z was not intended to be restricted to housing possession proceedings, but intended to apply to all possession proceedings under CPR Part 55 – albeit now subject to certain exceptions.
(ii) Disputes involving former tenants of agricultural holdings are subject to the stay, despite the PBA and PLA seeking an exception.
(iii) The stay also applies to possession claims where the landlord of commercial premises claims that the tenant no longer has a right to remain. The Legal Adviser to the Master of the Rolls said that such a claim may be disputed, implying that there is good reason for the stay in such cases.
(iv) The stay imposed by PD51Z does not prevent issuing a claim, which had concerned those for whom limitation periods and time limits for applications for relief from forfeiture were relevant. This may raise interesting questions in the coming months, as stays are lifted, as to how the Court system processes a large number of pending claims.
CLAIMS AGAINST TRESPASSERS
The PBA and PLA questioned whether Practice Direction 51Z ‘constituted a 3-month licence to trespass’ by protecting squatters from eviction. While squatting in residential premises is a criminal offence, trespass to commercial properties or open land is not.
Updates to Practice Direction 51Z: CPR r. 55.6 claims permitted
The recent amendments to PD51Z have tempered these restrictions, to a degree: PD51Z states that the 90-day stay does not apply to claims against trespassers to which CPR r.55.6 applies. CPR 55.6 has two elements:
(i) There must be “a possession claim against trespassers”, which is defined by r.55.1(b) as: “a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land […]” (emphasis added). Claims against (sub-)tenants are excluded; and
(ii) The claim has been issued against “persons unknown”.
Points to consider in practice
If you are considering issuing a claim against trespassers, it would be worth considering:
(i) Is there a chance that the Defendant will engage with litigation to deny that they are a trespasser under CPR 55.6 (i.e. a person unknown), for example by alleging they have a tenancy? It is not yet known whether the Court will stay the claim or hear the dispute as a preliminary issue to determine if it is subject to the carve out or must be stayed.
(ii) The requirements of service on a trespasser pursuant to CPR 55.6 are rigorous, but entirely compatible with ‘social distancing’. These should be stringently upheld.
(iii) If you are preparing for a hearing, consider our practical tips for attending remote hearings (here).
Interim Possession Orders
Alternatively, applications for Interim Possession Orders, governed by Section III of CPR Part 55, are also now excluded from the general stay on possession proceedings. Such an application can be made where the only claim is a possession claim against trespassers for the recovery of premises (as defined in Criminal Law Act 1977, s.12) and the claimant has an immediate right to possession of the premises and has had such a right throughout the period of alleged unlawful occupation. Claims must be made within 28 days of the date on which the claimant first knew, or ought reasonably to have known, that the defendant (or any of the defendants), was in occupation.
CLAIMS FOR INJUNCTIONS
Recent case law: UCLH NHS Foundation Trust v MB
In its original form, the Practice Direction sought to make clear that it did not affect claims for injunctive relief. The amended Practice Direction does not change this. There has already been one well-publicised case of an interim injunction being used to obtain possession (University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB)). In that case, a licence to occupy a room had been terminated by the licensor. The defendant was therefore a trespasser.
It has long been the case that a property owner is, in principle, entitled to an injunction to enforce their rights against a trespasser, even an interim injunction. That is clear from the Court of Appeal decision in Manchester Corporation v Connolly [1970] Ch 420, which was referred to in the Supreme Court decision in Secretary of State for Environment, Food and Rural Affairs v Meier [2009] UKSC 110; [2009] 1 WLR 2780. Based on that line of authority, Chamberlain J granted an interim injunction requiring the defendant to leave by noon the following day.
The recent amendments to PD51Z would not have assisted the claimant in MB as it would not have fallen within CPR 55.6. There will remain some trespasser cases where a possession claim cannot proceed due to the stay, but an injunction will present an alternative route.
It should be noted, however, that MB concerned a case where what was sought was possession of a bedroom within a hospital ward. The ward was intended for patients requiring acute neuropsychiatry care for periods of up to 14 days. Specially adapted accommodation had been made available by a local authority for the defendant and she had signed a tenancy agreement for that accommodation. A detailed care package had been put together, including 24-hour care 7 days a week. Chamberlain J considered that it was clear that there was no defence to the claim. Furthermore, the defendant was not going to be left without care. If, however, an injunction was not granted, this might mean that another patient with a neurological condition would not be able to receive care that they needed. Chamberlain J thought that, in the context of a public health emergency, those consequences meant that the ordinary balance of convenience fell decisively in the claimant’s favour.
There were therefore very weighty factors pointing towards the grant of an injunction in the MB case. Potential claimants considering adopting the same route will need to identify the relevant factors in their situation and ensure that there is evidence to support those factors.
Anti-social Behaviour, Crime and Policing Act 2014
In addition, local authorities, chief officers of police, and housing providers can apply for injunctive relief excluding a respondent from their home under Anti-social Behaviour, Crime and Policing Act 2014, s.1 and s.13. Where a claimant seeks an order requiring a defendant to leave their home on a without notice basis, care must be taken to consider the guidance in Moat Housing Group-South Ltd v Harris [2005] EWCA Civ 287; [2006] QB 606. Courts will doubtless want to see some evidence as to how social distancing measures can be enforced if an injunction is granted and what alternative accommodation is available in the event that a respondent is excluded from their home.
Injunctive relief to enter premises
Landlords and tenants can continue to seek injunctive relief in relation to other matters (e.g. access for inspections or enforcing repairing obligations). Again, courts are likely to want to see some evidence as to how social distancing measures can be respected if an injunction is granted.
Service
In all cases involving injunctions, practitioners should give careful consideration to the normal requirements for personal service of the injunction order and how it is proposed to enforce the order if that should become necessary.
Insolvency proceedings
One alternative to possession claims and injunctions that has received some media attention is the possibility of landlords pursuing insolvency proceedings. Our colleagues Nicholas Trompeter and Isabel Petrie have written about this, so look out for their upcoming article on our website.