Contributors
To obtain possession of property from a residential tenant a landlord will invariably require a court order. In the vast majority of cases residential possession claims are dealt with under CPR PD 55.
On March 18 the COVID-19 pandemic led the government to announce a radical package of measures which included emergency legislation to suspend new evictions from social or private rented accommodation.
On 25 March the Coronavirus Act came into force preventing landlords from recovering possession of their property for a period of 90 days from 27 March 2020 and on 27 March, the Master of the Rolls, with the agreement of the Lord Chancellor published a new Practice Direction, PD51Z, providing that all claims under part 55 are stayed for 90 days.
The practical effect of these changes is that landlords in both the public and private sector have been faced with an influx of adjourned hearings causing significant delays with no apparent way to avoid the 90 day stay even for urgent or exceptional cases.
However, on Friday 17 April before HHJ Freedman sitting in the County Court at Newcastle, the Claimant landlord in possession proceedings challenged the legal hurdle presented by PD51Z and sought an outright possession order. The significant question for the Court was; could the Court use its powers under CPR 3.1(2)(a) and (m) to either shorten or dis-apply the stay imposed by PD51Z?
Background
To provide some context to the matter, in April 2019 we were instructed by our social landlord client to amend a suspended rent possession order to include anti-social behaviour ("ASB") grounds and to make the order outright ("the Main Application"). This application was defended on Equality Act grounds with the Defendant arguing that he suffered from a disability within the Act and that the ASB was a direct result of his disability.
In separate proceedings in June 2019 an Injunction Order was obtained (initially ex parte) to restrain the Defendant's ASB. The Defendant was found to have breached the Injunction Order on two occasions. The Defendant was arrested for a third and serious breach in September 2019. The breach was denied. Following a trial of the matter, the breach was proved and the Defendant was sentenced to a three month custodial sentence.
The incident lead to a criminal prosecution which is ongoing. The Defendant is currently bailed to stay away from his property.
Following a number of hearings in the Main Application the matter was listed for hearing on 17 April 2020. The matter was listed in front of HHJ Freedman, a circuit judge and designated civil judge for Newcastle upon Tyne.
Prior to the hearing the Defendant indicated, through his solicitors, that he would not oppose the making of a possession order. The terms of the Order were agreed between the parties.
PD51Z – Stay of possession proceedings
PD51Z provides that all possession proceedings are stayed for a period of 90 days from 27 March 2020, the precise wording by virtue of Paragraph 2 is as follows:
"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".
The intention of PD51Z is to provide a modification to the existing rules and Practice Directions which is deemed to be necessary during the coronavirus pandemic to ensure the administration of justice is carried out so as not to endanger public health.
PD51Z is applicable to all proceedings brought under CPR 55. This includes proceedings based on rent arrears, on anti-social behaviour, or on the no fault s21 grounds. The effect of PD51Z is that a landlord cannot bring possession proceedings for 90 days in any instance. Following an amendment to PD51Z which is effective from 18 April 2020 there an exception for a claim against trespassers to which PD 55.6 applies.
Overcoming PD51Z
A significant legal hurdle to overcome in this matter was the effect of PD51Z. There was no doubt that these proceedings fall within this category, and therefore, that the matter was subject to a 90 day stay. However, it was submitted on behalf of the Claimant that:
- CPR Part 3.1, sub-paragraph 2 provides that “Except where these Rules provide otherwise, the court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order ….. and (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective …..”
- There is nothing in the rules providing that the court cannot exercise its case management powers set out at CPR Part 3.1(2) in respect of PD51Z and therefore no prohibition on it exercising its discretion to shorten or dis-apply the 90 stay set out therein
- Paragraph 1 of PD51Z states that “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. …..”
- The Defendant does not and has not for around six months lived at the property in question and has given clear instructions that he has no intention of returning
- This case is not one in which any modification to the rules which may be decided upon in future would affect the administration of justice or ensure that enforcement of the order would not endanger public health.
The decision
The Judge accepted the Claimant's submissions and took a novel approach to make a finding that the stay imposed on these proceedings by PD51Z is, in exercise of the Court's powers under CPR3.1(2)(a), shortened to 0 days and/or is an exercise of the Court's powers under CPR3.1(2)(m), dis-applied. As a result, an outright possession order was made.
Summary
Whilst this matter involved exceptional circumstances, namely the Defendant having not occupied the property for six months and his agreement to the terms of a possession order, nonetheless, and rather significantly, this case demonstrates that the Court may and will exercise its powers to shorten or dis-apply the stay in PD51Z.
