A practice direction that stays possession proceedings during the Covid-19 pandemic has survived a legal attack at the Court of Appeal.
Giving the court’s decision, Sir Geoffrey Vos rejected a challenge to the validity of Practice Direction 51Z (PD 51Z), which stays possession proceedings for 90 days.
He said: “In our judgment, the short delay to possession litigation enshrined in PD 51Z is amply justified by the exceptional circumstances of the coronavirus pandemic. As paragraph 1 makes clear, there is a need to ensure that neither the administration of justice nor the enforcement of possession orders endanger public health by the unnecessary transmission of the virus.”
He ruled that courts do theoretically have discretion to lift the stay imposed by PD 51Z, but added: “We would strongly deprecate parties troubling the court with applications that are based only on such reasons and which are in truth bound to fail.”
He explained: “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.”
The matter came before the court in relation to three adjacent properties at Lodge Farm in Welwyn, Hertfordshire, all subject of a mortgage securing a loan to Gary Marshall. The mortgagees assert that sums due under the loan agreement are in arrears and/or that Marshall is in breach of other terms of the agreement, and appointed a receiver.
In September 2019, the receiver commenced two sets of possession proceedings in the Hertford County Court against Marshall and his son, and an order confirming a number of directions, including setting a trial window between October 2020 and January 2021, was made on 27 March 2020 – the day that PD 51Z came into force.
The question arose whether PD 51Z discharged the parties of the obligation to take any of the steps required by the agreed directions within the 90-day period, which the receiver maintained was not the case.
Earlier this month, the Property Litigation Association and Property Bar Association persuaded the Master of the Rolls to amend PD 51Z to exclude possession claims against “persons unknown” who are trespassing on property, which could include, for example, travellers, protestors or others squatting in commercial or residential property who are not known to the owner. Interim possession orders, enforceable against trespassers by police in certain circumstances, are also now excluded.
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