Angela Piers looks at the impact of the PD 51Z stay in housing possession cases and discusses the case of Arkin v Marshall which will be in the Court of Appeal on 30th April 2020, ...

...challenging the legality of PD 51Z, and the recent decision of UCL Hospitals NHS FT v MB [2020] EWHC 882

What Does Practice Direction 51Z Say?

On 27th March 2020, PD51Z was introduced to stay housing possessions for 3 months.  The PD ceases to have effect on 30th October 2020 and has been introduced to ensure that the enforcement of orders did not adversely impact public health during the Covid-19 crisis.  It applied to all proceedings brought under CPR 55 and all proceedings to enforce a possession order by warrant or writ. Claims for injunctions are not caught by the PD, even if a possession claim has been stayed. 

The PD was amended on 20th April 2020 (effective from 18th April 2020) to include Paragraph 2A, which spells out that the stay does not apply to claims against trespassers, or applications for interim possession orders – including making applications, hearings, orders and applications to set aside; and it clarifies that parties can still make applications for case management directions the parties agree.  That will of course ensure that cases can progress without further delay once the stay is lifted. The Notes to the Amendment stress that claims can still be issued, and the PD simply stays the claim.

UCL Hospitals NHS FT v MB [2020] EWHC 882 QB

In UCL Hospitals NHS FT v MB, the High Court considered PD 51Z, a hospital bed, a patient, and an injunction.   

The hospital needed the bed occupied by a patient who had been in hospital for a long period and resisted leaving.  The hospital issued injunctive proceedings, to which the PD does not apply.  The case determined that the patient was a trespasser once the licence to occupy the hospital bed was withdrawn, relying on Manchester Corporation v Connolly [1970] Ch 420 (CA) and Secretary of State for the Environment v Meier [2009] UKSC 11, [2009] 1 WLR 2780.

Mr Justice Chamberlain at paragraph 57, considered that a patient occupies a bed in hospital by permission, which in this case had been withdrawn.  He also considered that the  hospital was entitled to balance up the patient’s needs and the needs of other patients, and that unless the decision could be regarded as unlawful as a matter of public law ‘there is no basis for the court to deny the hospital’s proprietary claim to restrain the patient from trespassing on its property.’    The court was persuaded that there was an effective care package in place for the patient and was not persuaded of a clear public law defence to the claim.

In terms of the issues explored in the case, the court was considering an interim injunction, but the decision had the effect of a final injunction, and therefore the judge examined the public law arguments raised by the patient: ‘where what is sought is an interim injunction which would effectively determine the claim it is necessary for the court to be satisfied there is clearly no public law defence to the claim; and the balance of convenience and other discretionary factors must also be considered.’ 

Arkin (as Fixed Charge Receiver) v. Marshall F00HF362

There was no discussion in UCL v MB about whether the Stay under PD51Z could be lifted, but Arkin did consider it and HHJ Parfitt sitting at the County Court at Central London decided he had no such discretion. 

This case concerns two claims for possession of residential mortgaged property.  Before the Amendment to PD 51Z was published it came before His Honour Judge Parfitt to decide whether the stay applied to directions that had been agreed just days before the PD.  He decided that it did, that the PD imposed a general stay on all claims brought under Part 55, and that the court had no discretion under the PD and no power to lift the stay using case management powers under Part 3.  He referred to the case of Secretary of State for Communities and Local Government v (1) Bovale Limited (2) Herefordshire District Council [2009] EWCA Civ 171.  Bovale looked at whether a PD was binding and held that judges could not vary the rules or practice directions generally, although in particular cases, case management powers could be applied.  HHJ Parfitt concentrated on the binding nature of the PD and at paragraph 12 held that: “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.” He also noted that in UCL v MB the court did not consider disapplying the PD. 

On 16 April 2020, Kerr J gave permission to appeal.  The Court of Appeal will be asked to consider:

• whether the stay on possession proceedings is ultra vires;
• whether the stay applies to the requirement to comply with case management directions in all cases; and
• whether the stay can be lifted in certain cases.

Comment

• The case of Arkin is important because the Court of Appeal will consider whether judges have any discretion to lift the stay.  The Government and the Housing Law Practitioners Association asked to intervene.  HLPA, which supports the stay, asked practitioners for evidence and succeeded with their application to intervene by way of written submissions.  Its position is that the stay cannot be lifted; and if it can, then only in exceptional circumstances.
• The interplay between PD51Z and r. 3.1(2): PD51Z needs exploring to determine whether (and if so, to what extent) the court has any discretion to lift or vary the stay.  Under the Case Management provisions in r. 3.1(2) the court has a wide discretion when managing cases, including  (m) ‘take any other step or make any other order for the purpose of managing the case and furthering the overriding objective …...’   Does this rule allow courts in certain cases to interfere with the blanket 3-month stay?
• There is likely to be a considerable back-log of possession cases once the stay is lifted, but case management directions on disclosure, witness statements etc. can only continue, according to the Amendment, if both parties agree.  So, tactically, one party can prolong proceedings by not agreeing with one or all proposed directions, even in straightforward cases. Is that in the spirit of the overriding objective? 
• Arkin was heard, and permission to appeal was given, before the Amendment to PD 51Z.  The Amendment could have some impact upon the Court of Appeal’s considerations, and the hearing may lead to further amendment of the PD to clarify points raised in the arguments.
• UCL v MB is a case of very particular circumstances, and is confined to someone who had become a trespasser.  Consequently an injunction claim may not be used very often in this way, but the court’s consideration of public law defences may be useful in future cases.

 
PRACTICE DIRECTION 51Z: STAY OF POSSESSION PROCEEDINGS, CORONAVIRUS

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—

1. a claim against trespassers to which rule 55.6 applies;
2. 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
3. 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.

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