PRACTICE DIRECTION 51Z – AMENDMENT AND APPLICATION
Further to Rachel Anthony’s observations on PD51Z (April 2020), practitioners might find it useful to know that the Practice Direction has already been amended, clarified, applied in Court, and appealed.
Amendment
On 20 April 2020, PD51Z was amended. A new Section 2A excludes the following from the automatic 90 day stay from 26 March 2020:
i. applications for case management directions, where directions are agreed by the parties;
ii. claims against trespassers to which CPR 55.6 applies (ie. against “persons unknown”);
iii. applications for IPOs under Section III of Part 55 (including the making of such an Order, the hearing required by CPR 55.25(4), and any application under CPR 55.28(1)).
Clarification
Section 3 of PD51Z also now expressly states that new claims may still be issued under Part 55.
Application
In UCL Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB), Chamberlain J had to examine issues relating to the discharge a patient (MB) who had a functional neurological disorder and long-standing complex psychological conditions. There was a dispute over the care package to be put in place when MB left the hospital, and MB refused to leave until her proposals for care were accepted. The Claimant originally applied for possession of MB’s hospital room, which she occupied under licence. Chamberlain J drew the parties’ attention to PD51Z and, subsequently, the Claimant sought an interim injunction to require MB to leave its hospital and not re-enter without prior written permission from the Claimant, save by ambulance. PD51Z Section 3 permitted such an application to be made. Chamberlain J granted the injunction, determining that MB had no sustainable public law defence.
Appeal
Interestingly, the validity of PD51Z itself has been challenged in a case that leap-frogged to the Court of Appeal. In Arkin v Marshall (decision of HHJ Parfitt in the Central London Court on 15 April 2020), the Court had to consider the application of PD51Z to 2 claims for mortgage possession that had been issued under Part 55 in September 2019 and allocated to the multi-track in November 2019. A CCMC was due to take place on 26 March 2020. PD51Z came into effect that day. The Claimants argued that the application of PD51Z was discretionary. The Court determined that it was required to give effect to PD51Z. Permission for appeal was granted to the Claimants on 16 April 2020.
The Appeal was heard on 11 May 2020. The Appellants argued that PD51Z was made ultra vires, that the Judge was wrong to find that PD51Z was intended to apply to all Part 55 proceedings (including those that had been allocated and given case management directions),
and, furthermore, that he was wrong to decide that the Court had no power to lift the stay on a case-by-case basis. On every point, the Court answered in the negative.
The jurisprudence argued in the Appeal makes for very interesting reading, but, for busy practitioners, the take-away points are these:
i. the Court recognised the value of parties agreeing directions which will take effect after the end of the stay and having them embodied in a Court Order but confirmed that any stay imposed by PD51Z prevents parties from seeking to enforce compliance;
ii. the Court accepted that judges retained a theoretical power to lift any stay but it would almost always be wrong in principle to use it. The only possible reason for lifting the stay that was argued in the Court was where the stay itself would operate to defeat the purpose of PD51Z and endanger public health. It is difficult to envisage when that would apply;
iii. the Court determined that, in fact, the Judge should not have made the directions that he did, even if they had been agreed, because paragraph 2A (c) was not then in force. This may be of interest to practitioners who face criticism when stays are lifted, for failing to comply with agreed directions embodied in an Order that pre-dates 20 April 2020.