Jon Lester was recently successful in persuading a District Judge in the County Court at Central London (by telephone hearing) that she did have the residual power to lift the stay imposed on possession proceedings by the recently enacted Practice Direction 51Z.
Jon acted for the tenants of commercial premises whose lease had been forfeited for non-payment of rent. The day before the hearing of the landlord’s possession claim, the parties reached a compromise for relief from forfeiture to be granted on terms as to repayment of rental arrears by instalments. In more normal times, the parties would have embodied their agreement in a Consent Order. The difficulty was that the County Court’s jurisdiction to grant relief from forfeiture where rental arrears are outstanding at the date of the hearing (as in Jon’s case) requires that possession be ordered at the same time. As the possession claim is automatically stayed by the new Practice Direction 51Z, there was concern that the Court could not order possession, and therefore could not grant the relief that both parties wish to be granted.
Jon relied on dicta in the Court of Appeal case of Bovale Ltd v Sec. of State for Communities and Local Government and anor. [2009] 1WLR 2274 to the effect that the case management powers in CPR Part 3 can include the power to go against a Practice Direction.
The Judge was grateful to be taken to the helpful dicta in Bovale. She indicated that she and her colleagues in the County Court at Central London are inclined to take a pragmatic and sensible view of possession cases in these uncertain times. Where parties are in agreement and public health is not at risk, Judges should be able to depart from the terms of PD51Z if it serves the Overriding Objective. Note: the date for possession agreed on by the parties was after the relevant period, so no issues arose under s.82 of the Coronavirus Act 2020.
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