Further Update – Possession Proceedings during Coronavirus

An update to the new Practice Direction 51Z (“the PD”) in respect of possession proceedings has been published and is effective as of 18 April 2020.

It now provides that:

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 update clarifies that claimants can now issue claims for possession proceedings during the period that the practice direction is in force, but those claims will still be caught by the stay imposed by the PD.

Further, there is now the possibility for those with claims which are already on foot and require directions to apply for them, which may allow those claims to progress more effectively once the 90-day stay has otherwise expired. The directions must be agreed, however, which will potentially limited how effect this change is in practice.

Possession claims against trespassers (CPR 55.6) and claims for an interim possession order (under Section III of Part 55) are now unaffected by the automatic stay and can be pursued. Neither of those routes can be used against former tenant or sub-tenant or licensee.

Claims for injunctive relief remain unaffected (and were not caught by the first update to the PD) as demonstrated by University College London Hospitals Foundation Trust v MB [2020] EWHC 882 (QB).

In that case, the introduction of the new PD in its original form prevented an NHS trust from obtaining a possession order to facilitate the discharge of a patient from hospital, in circumstances where her bed was needed for critically ill-patients. The trust was able to obtain the relief it needed via an injunction instead, but the case demonstrates that the response to the pandemic though the new PD was very wide ranging, perhaps more so than anticipated. The latest update outlined above perhaps signals the start of the initial and very wide ranging reaction to the pandemic being softened somewhat.

A more detailed overview of how the coronavirus pandemic has affected both residential and commercial leases can be found here.