Possession proceedings

Stay of all current possession proceedings (residential and commercial)

Civil Practice Direction 51Z

Practice Direction 51Z stayed all possession proceedings under Part 55, initially for a period of 90 days from 27 March 2020.

The Practice Direction also applies to the enforcement of possession orders and any applications for writs and warrants for possession, but it does not apply to injunctive proceedings.

 

The full text of the Practice Direction (as amended - lastly on 11 June) is as follows:

 

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—

(a)  claims for injunctive relief are not subject to the stay in paragraph 2, and the fact that a claim to which paragraph 2 applies may be stayed does not preclude the issue of such a claim; and

(b)  during the period of the stay in paragraph 2—

(i) time does not run for the purpose of any rule; and

(ii) no notice is required to be given by the court for the purpose of any rule.

Note: The stay imposed by PD51Z extends to any possession claim, even where that claim was not begun under CPR Part 55 (ie under Part 7 or 8, or by way of Part 20 counterclaim): TFS Ltd v BMG (Ashford) Ltd [2020] EWCA Civ 833. 

Extension of the stay

The stay has now been extended to 23 August 2020. The extension is embodied in a new rule: CPR Part 55.29.

(See Government announcement; the note on the Civil Procedure Rules website and The Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020).

 

Stay of possession proceedings, coronavirus

55.29(1) Subject to paragraph (2), all possession proceedings brought under this Part and all enforcement proceedings by way of writ or warrant of possession that are—

(a) stayed immediately prior to this rule coming into force; or

(b) brought after this rule comes into force and on or before 22nd August 2020,

are stayed until 23rd August 2020.

(2) Paragraph (1) does not apply to—

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

(b)proceedings under Section III of this Part;

(c)an application for case management directions that are agreed by all the parties; or

(d)a claim for injunctive relief.

(3) Paragraph (1) does not prevent the bringing of a claim notwithstanding that it may be stayed.

(4) For the purposes of the application of any rule to any proceedings that are stayed by paragraph (1)—

(a) time does not run; and

(b) no notice is required to be given by the court.

In this article Cecily Crampin and Imogen Doods of Falcon Chambers argue that the principles to be applied in considering whether or not to lift the stay (see below) are the same under this new rule as under PD51Z.

Going forward

The Government press release of 5 June announcing the extension of the stay to 23 August also says this about plans being devised to deal with the situation when the stay is ended:

  "The Master of the Rolls, as head of civil justice, has convened a judiciary-led, cross-sector, task-and-finish working group to consider and to address so far as practicable matters affecting litigants and the courts when the present stay on possession proceedings is lifted. This group has the support of the Lord Chancellor and Secretary of State for Housing, Communities and Local Government."

On 1 July, in answer to a question in the House of Lords, Lord Greenhalgh said that the courts would begin to process possession claims again after 23 August. He went on to say: "Work is underway with the judiciary, legal representatives and the advice sector on arrangements, including new rules, to ensure that judges have all the information necessary to make just decisions and that the most vulnerable tenants can get the help they need when possession cases resume."

 

Lifting the stay - complying with directions

Arkin v Marshall

[2020] EWCA Civ 620

Summary

The Court of Appeal has held that the PD51Z is not ultra vires. It also held that:

  • The court has the theoretical power to lift the stay but this might only occur in the most exceptional circumstances such as perhaps where the stay itself operated in such a way as to defeat the purposes of PD 51Z and endanger public health.
  • Orders for directions cannot be enforced whilst the stay is in force.

Citations

Sir Geoffrey Vos:

 

“In our view PD 51Z cannot be read as formally excluding the operation of CPR 3.1. As a matter of strict jurisdiction, therefore, a judge retains the power to lift the stay which it imposes. But the proper exercise of that power is informed by the nature of the stay and the purposes for which it was evidently imposed. PD 51Z imposes a general stay on proceedings of the kind to which it applies, initially subject to no qualification at all, and subsequently qualified only in the limited and specific respects provided for in paragraph 2A. The purpose was that during the 90-day period the burden on judges and staff in the County Court of having to deal with possession proceedings, which are an immense part of its workload, would be lifted, and also that the risk to public health of proceeding with evictions would be avoided. That purpose is of its nature blanket in character and does not allow for distinctions between cases where the stay may operate more or less harshly on parties affected by the stay were entitled to rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case. Thus, while we would not go so far as to say that there could be no circumstances in which it would be proper for a judge to order that the stay imposed by PD 51Z should be lifted in a particular case, we have great difficulty in envisaging such a case. The only possible such case canvassed before us was where the stay would operate in such a way as to defeat the purposes of PD 51Z and endanger public health...” (para 42).

“We would, in these circumstances, hold that, although as a matter of strict jurisdiction a judge retains a theoretical power to lift any stay, it would almost always be wrong in principle to use it. We do not, however, rule out that there might be the most exceptional circumstances in which such a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD 51Z itself.” (para 46)

“The fact that the parties agreed directions before PD 51Z came into force does not point towards the need to lift the stay. The parties are capable of complying with the directions they agreed whether or not the stay is lifted. The stay simply means that neither party will be able to apply to the court to enforce compliance with the agreed directions whilst it remains in place. If either party fails to do what it agreed to do during the period of the stay, the other party will, no doubt, be able to rely on that circumstance once the stay is lifted. It will be able to ask the court, at that stage, to take the conduct of the other party into account in making revised directions. A party to a claim that has been stayed under PD 51Z cannot, however, as we have said, apply to the court to enforce compliance with agreed directions, even if those directions have been made under the express exclusion in paragraph 2A(c).” (Para 50)

 

Appeals

London Borough of Hackney v Okoro

[2020] EWCA Civ 681

Appeals from orders for possession brought under CPR Part 55 are also subject to the stay imposed by PD 51Z. 

 

Injunctions

University College London Hospitals Foundation Trust v MB

[2020] EWHC 882 (QB)

The court held that PD does not apply to injunctions, and in this case a hospital obtained a mandatory injunction against a patient – who was medically fit to be discharged but who would not go - requiring the patient to leave the hospital. The position has since been clarified to make clear that the suspension does not apply to injunctions.

 

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