Civil Procedure Rules Practice Direction 51Z (“PD51Z”) made by the Master of the Rolls / Head of Civil Justice on 27 March 2020 imposes a 90-day stay of all possession proceedings brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession.
This very short Practice Direction gives rise to a lengthy list of questions, from the fundamental such as whether CPR Rule 51.2 is actually a valid basis in law for PD51Z; to mundane questions about re-listing. Recent cases have addressed two questions:
(1) Whether PD51Z is a “licence to trespass” for 90 days;
(2) Whether the stay under PD51Z can be lifted.
The first of those questions is addressed to some degree in UCL Hospitals NHS FT v MB [2020] EWHC 882. The case was an unusual and somewhat distressing one, with the Claimant seeking to remove a patient from a hospital bedroom in order to free up urgently-needed space. Chamberlain J noted that PD51Z stayed possession proceedings, but (by para.3 of PD51Z) not claims for an injunction. At [37] the Judge noted that a property owner is in general entitled to an injunction to enforce its rights as against a trespasser, relying on Manchester Corporation v Connolly [1970] Ch 420 (CA) and Secretary of State for the Environment v Meier [2009] UKSC 11, [2009] 1 WLR 2780. On the facts, an injunction was granted.
In principle, the same will apply to other trespasser claims, but it remains to be seen how willing the courts will be to entertain injunction applications on less unusual sets of facts.
It is clear from the judgment in UCL v MB that the claimant did not suggest that the stay under PD51Z could be lifted. That point was taken in Arkin (As Fixed Charge Receiver) v Marshall [F00HF362 & F00HF363] (HHJ Parfitt 15/4/20 unreported).
The claims in Arkin were issued as possession proceedings under CPR Part 55 in September 2019 to enforce mortgage rights. A CCMC had been due to take place on 26 March 2020; that did not take place but the parties’ counsel enabled the Court to give directions for a trial window between October 2020 and January 2021. PD51Z was then made on 27 March 2020 which had the effect of staying the proceedings for 90 days (until 24 June 2020), during which period the parties were due to carry out disclosure and submit their witness statements.
It was accepted that the PD51Z stay, unless lifted, did have the effect that the agreed directions would not apply in the 90 day stay period. Counsel for the Claimants* submitted that the stay should not apply on the basis that there was no increased public health risk by the parties complying with the agreed directions therefore there was no need for the stay to apply to the proceedings, which had developed well beyond the Part 55 starting point.
HHJ Parfitt rejected that submission, relying upon Sec of State for Communities v Bovale Ltd [2009] EWCA Civ 171. Bovale reviewed the source of the law relating to practice directions and concluded that the case management powers of judges did not give them the power to vary rules and practice directions generally. HHJ Parfitt held:
“[12] The Proceedings were started as Part 55 claims and accordingly come within PD51Z. Bovale requires any court to give effect to the practice direction…. this is not a discretion but a requirement arising out of the nature of this particular practice direction.
[13] Conclusion These claims are stayed for 90 days….”
The Judge also referred to the decision in UCL v MB, noting that:
“There was no suggestion in that case of any discretion to disapply the practice direction”.
It is understood that an application for permission to appeal Arkin may be pursued, but if the judgment is upheld, where do Arkin and UYCL v MB leave possession proceedings? It seems that unless there are grounds for seeking injunctive relief, PD51Z has the effect of halting any and all possession proceedings, regardless of what stage they may be at in the litigation or the complexity of the proceedings. There is no get-out. Whether this was really the intention of the PD51Z may be questionable – it may have been supposed that complex claims would not be “Part 55”, but in fact all possessions come under this Rule. Staying compliance with standard directions in possession claims, when the same sorts of directions are being complied with and enforced by the courts in all other civil litigation will no doubt cause further backlogs and delay once the Courts begin to operate more normally again.
* Michael Walsh of Tanfield Chambers appeared for the Claimants in Arkin v Marshall
Andrea Campos-Vigouroux