Trinity Housing Law Barrister Examines the Impact of Practice Direction 51Z

Trinity housing law barrister, Helen Greatorex examines the impact of Practice Direction (PD) 51Z:

It is now almost a month since PD 51Z came into force and many of us have been grappling with the real implications of it and how and to what extent the court must allow the 90 day stay it imposes.

On 20th April 2020 an updated version of the practice direction came into force and on 30th April 2020 the Court of Appeal will hear an appeal in a possession claim about mortgaged property and the relevance of the stay to directions given in that case. Now seems like an opportune moment to consider the exact implications of PD51Z and particularly whether the effect of the practice direction is (subject to recent amendments) such that no progress can be made in claims for possession either in their being determined or in any order being enforced.

Practice Direction 51Z and Civil Procedure Rules Part 3

The first version of PD51Z simply stated at paragraph 2:

  1. All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force. [27th March 2020]

As a result courts up and down the country have been vacating their block possession lists and adjourning final possession hearings to be re-listed after the end of June 2020. But is it possible, all be it almost certainly in limited circumstances, to persuade a court despite the practice direction to go ahead and make an order for possession?

It is right to say that PD51Z does not specifically state that the stay imposed by it can be lifted or varied by the court and that there is no express discretion to do so set out in the practice direction. But I would suggest that the practice direction must be read in light of the rest of the civil procedure rules and particularly CPR3.1 which sets out “The court’s general powers of management.”

Importantly, CPR3.1(2) begins with the words: Except where these Rules provide otherwise, the court may ….... It goes on to set out a number of steps the court may take in managing cases including at (a) extend or shorten the time for compliance with any rule, practice direction or court order …… and at (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective …...

It would seem open to the court therefore in any particular case, even despite the lack of an express provision to do so in PD51Z, to lift or shorten the 90 day stay and I have been involved in a case in which (allbeit without opposition) the court was persuaded to do just that.

Arkin v. Marshall

The case of Arkin (as Fixed Charge Receiver) v. Marshall F00HF362 and Marshall (as Fixed Charge Receiver v. (1) Marshall (2) Marshall F00HF363 (Arkin) however suggests otherwise. His Honour Judge Parfitt sitting at the County Court at Central London hearing the matter involving proceedings for possession of mortgaged property considered the discrete question of whether the stay imposed by PD51Z applied to directions given in that case only days before the practice direction came into force.

Having considered the judgment of the Court of Appeal in The Secretary of State for Communities and Local Government. (1) Bovale Limited (2) Herefordshire District Council [2009] EWCA Civ 171 (Bovale) Judge Parfitt determined that the stay could not be interfered with and concluded that: The Proceedings were started as Part 55 claims and accordingly come within the PD51Z. Bovale requires any court to give effect to the practice direction. ….. this is not a discretion but a requirement of this particular practice direction.

In reaching this conclusion he placed particular weight on paragraph 29 of the judgment of Bovale which states:

How far is a practice direction binding? In our view a judge is bound to recognise and has no power to vary or alter any practice directions, whether brought in under the section 5(1) procedure or under the section 5(2) procedure or indeed any existing practice directions issued pre-2005 Act. There are powers under the rules, as we have already indicated, to apply case management powers in particular cases but otherwise practice directions must, as it seems to us, be binding on the court to which they are directed. …..

However, that judgement had previously at paragraph 27 considered the case management powers at Part 3 of the CPR and had specifically stated:

The above give wide powers in individual cases but cannot be construed in our view as giving the power to individual judges or any court simply to vary the rules or practice directions generally.

It would seem therefore that perhaps the more accurate interpretation of Bovale is that whilst a practice direction must generally, and without more, be binding on the court, the court can, taking into account the circumstances of any particular case, exercise its case management powers in respect of the requirements of that practice direction. This interpretation would, I would suggest, sit more easily with the provisions of Part 3 of the CPR and particularly the ability to take certain case management steps unless specifically enjoined not to.

Cases in which the Stay might be Lifted or Shortened

If the court does have the power to alter the 90 day stay in what circumstances might it do so? The starting point for answering that question must surely be paragraph 1 of PD51Z which states:

1. This practice direction …… is intended to assess modifications to the rules and Practice Directions that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. …...

It would seem likely therefore that where no modification to the rules or practice directions that might in future be implemented would affect the outcome of the case and where the matter need not be stayed in order to ensure that public health would not be endangered the court may be persuaded to consider lifting or shortening the stay.

For example, a case in which a landlord is all but certain the tenant has abandoned a property but in which it wishes to protect itself from any risk of an unlawful eviction claim by obtaining an order for possession would seem to fall into this category. How would any change in the rules in the future be relevant and how (assuming the tenant is living elsewhere) would public health be endangered by an order for possession being made. This might, be one example where the court would be satisfied that the 90 day stay served no purposes and be prepared to lift the same.

Update to Practice Direction 51Z

An update to Practice Direction 51Z was made on 20th April 2020. Paragraph 2 of the practice direction is now subject to a new paragraph 2A which states:

2A. Paragraph 2 does not apply to—

(a) a claim against trespassers to which rule 55.6 applies;

(b) an application for an interim possession order under Section III of Part 55, including the making of such an order, the hearing required by rule 55.25(4), and any application made under rule 55.28(1); or

(c) an application for case management directions which are agreed by all the parties.

Applications for Interim Possession orders under Part 55 are, in my experience, few and far between but it is important to remember that they may only be made in very limited circumstances; where the only claim made is a possession claim against trespassers; the claimant has an immediate right to possession of the premises and has had such a right throughout the period of alleged unlawful occupation; and where the claim is 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.

Perhaps the more relevant exception is that at 2A(a) but this is also not as straight forward as simply any claim against trespassers. The exception relates to claims against trespassers “to which rule 55.6 applies”. This rule deals with the service of claims against trespassers and sets out the methods of service where the claim has been issued against “persons unknown”. It would seem therefore, at first glance, that this exception does not apply to trespassers whose identities are known.

The dis-application of the 90 day stay to the making of case management directions would seem to be both sensible and welcome and will hopefully go some way to ensuring some cases progress and the inevitable future back log is reduced. Why should a case be held up for 90 days when parties can be continuing with disclosure, witness statements, etc.? But why this exception applies only to situations in which the directions are agreed by all parties is less clear. This would seem technically to enable one party to avail itself of the 90 day stay only by disagreeing with the nature of or timing for one direction.

It may well be that the updated PD51Z whilst providing for some circumstances goes on to create as many questions as the initial version. Hopefully at least the court’s discretion or not to lift or shorten the 90 day stay will be clear by the end of the month when the appeal in Arkin has been determined.

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