23rd Apr 2020

Upon my recent Article entitled “The Impact of Coronavirus (COVID-19) on Housing and Real Estate Litigation” I concluded that “we can expect further developments in the area of housing and real estate litigation commensurate with how society is impacted by the coronavirus”. I had not appreciated that further developments would arise within a month of Practice Direction 51Z (“PD 51Z”) coming into effect.

On 20 April 2020 the Master of the Rolls and the Lord Chancellor signed an Amended Practice Direction, amending PD 51Z, taking effect from 18 April 2020. PD 51Z now reads as follows:

This Practice Direction supplements Part 51

1. This practice direction is made under rule 51.2 of the Civil Procedure Rules (“CPR”). It 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. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.

2. Subject to paragraph 2A, 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.

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.

3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2, and the fact that a claim to which paragraph 2 applies will be stayed does not preclude the issue of such a claim.

The substantial amendments are introduced by paragraph 2A and paragraph 3:

1. Paragraph 2A(a)

The 90 day stay imposed by paragraph 2 (“the Stay”) does not apply to possession claims pursued against trespassers to which CPR Rule 55.6 applies. It is important to note the amendment does not appear to cover ALL possession claims pursued against trespassers, as defined by CPR Rule 55.1(b). It seems only to concern possession claims that have been issued against “persons unknown”, being the subject matter of CPR Rule 55.6.

2. Paragraph 2A(b)

The Stay does not apply to applications for Interim Possession Order (“IPO”) under Section III of CPR Part 55.  This amendment runs alongside paragraph 2A(a) so far as IPOs are sought when the occupier against whom the application is sought is a trespasser, the applicant has an immediate right to occupation and has had such a right throughout the alleged unlawful occupation and such application has been made within 28 days of discovery of the trespass.

3. Paragraph 2A(c)

The Stay does not prevent the parties from applying for case management directions that have been agreed. This amendment allows the parties to agree case management directions that come into effect upon conclusion of the stay. The case management decision is permitted however the active case management steps remain stayed for 90 days from 27 April 2020 (i.e. until 25 June 2020).

4. Paragraph 3

Clarity is provided to the effect that the Stay does not prevent a party from issuing a claim. It only prevents further steps being taken in the proceedings until after the expiry of the stay.

It seems obvious to the writer that the amendment effected under paragraph 2A(a) may cause confusion to the unwitting practitioner i.e. whether all possession claims pursued against trespassers are excluded from the stay or whether the same is limited to claims against “persons unknown”. It is interesting to note whether this provision will be further revised.

Oliver Caplan
April 2020

If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.