Trespassers and persons unknown beware – Practice Direction 51Z amended

It was almost a month ago (27 March 2020) that Practice Direction 51Z became effective. The PD was made as part of a process of assessing modifications to the operation of the CPR and PD’s that may be necessary during the Coronavirus pandemic.

The main change effected by the PD was that 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 were stayed for a period of 90 days.

The original form of the PD was 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. 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.

3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2.

The PDs imposed a total stay on possession proceedings and, in effect, gave a three-month licence to trespass even if proceedings were issued. Whilst squatting in residential premises is a criminal offence this does not apply to commercial properties and anecdotal evidence suggested that claims being issued against trespassers of both residential and commercial properties were (wrongly) automatically stayed.

On 20 April 2020 urgent clarification was given as to whether the automatic stay imposed by PD 51Z was intended to apply to cover claims against trespassers including IPOs. Paragraph 1 of the PD has not changed, but paragraph 2 was amended and now reads (I have shown the amendments in bold):

1. 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 claim against trespassers to which rule 55.6 applies;
        • 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
        • an application for case management directions which are agreed by all the parties.”

The amended paragraph 3 now reads:

1. 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.

But, as always, new ambiguity has been created.

On first glance it appears that claims against trespassers falling within CPR 55.6 are now excluded from the 90-day stay – which will come as welcome relief to landlords who are faced with trespassers who are moving into empty premises believing  that they cannot be evicted for three months (although it is notable that despite the amended PD being in force for almost two days, the Civil Court Listing Priorities have not been amended to include trespasser claims).

But on a closer reading, some issues start to arise. Does the reference to CPR 55.6 (which only applies to claims issued against persons unknown) apply to all trespassers or just persons unknown?

CPR 55.6 reads:

Where, in a possession claim against trespassers, the claim has been issued against “persons unknown”, the claim form, particulars of claim and any witness statements must be served on those persons by—

(a) (i) attaching copies of the claim form, particulars of claim and any witness statements to the main door or some other part of the land so that they are clearly visible; and

(ii) if practicable, inserting copies of those documents in a sealed transparent envelope addressed to “the occupiers” through the letter box; or 

(b) placing stakes in the land in places where they are clearly visible and attaching to each stake copies of the claim form, particulars of claim and any witness statements in a sealed transparent envelope addressed to “the occupiers”.

We suspect the intention was that the reference to 55.6 was intended to be a reference to a “possession claim against trespassers” which is defined in CPR 55(1)(b) as “a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether his tenancy has been terminated or not.”

If this interpretation is correct, then the exclusion applies to anyone who entered or remained on the land without consent (except a claim against a tenant or sub-tenant).

However, on a plain reading of the amended PD, any claim against a named occupier would not be covered by the exception (as it would not be a claim issued against “persons unknown” and therefore not “a claim against trespassers to which rule 55.6 applies.” It does not seem right that simply knowing the name of the trespasser takes the claimant outside the exception. If this was not what was intended, it looks like we will need another amendment.

Unless and until a further amendment is made, one  way to put yourself within the exclusion may be to simply plead ‘persons unknown’ as an additional defendant (and in many cases, this is done as a matter of course) – as that would trigger the service requirements of CPR 55.6. However, what happens when a claimant knows there are no ‘persons unknown’ occupying the land – are they prevented from obtaining an order simply for knowing a trespassers name? You are then clearly running the risk of the claim being struck out as an abuse. An alternative is to state in the Claim Form/Particulars of Claim that whilst a name has been given, you have no proof this is the correct name and simply bring the claim against persons unknown and join them into the proceedings once they object.

But we must give credit where it is due. What the amended PD has done is given some clarity regarding issue of possession claims. Before the amendment, some claimants queried whether they were allowed to even issue claims – it is now clear that claims can be issued but will be automatically stayed for a period of 90 days. This, therefore, removes the concerns about the impact of the PD where possession proceedings would otherwise be barred by expiry of the limitation period and where there is a time limit on the making of an application by the tenant for relief from forfeiture.  As to whether the Court on the ground are actually issuing is another matter and the subject of a further article.