Claims against trespassers – make sure you DON’T know your defendant

On 20 April 2020, the updated version of CPR Practice Direction 51Z (Stay of Possession Proceedings, Coronavirus) came into force (link: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51z-stay-of-possession-proceedings,-coronavirus). This imposes a blanket 90-day stay on all Part 55 possession claims, but sets out some very limited exceptions.  Jonathan Wright considers the practical implications.

POSSESSION CLAIMS AGAINST TRESPASSERS

It is still possible to pursue possession claims against trespassers, but there is a catch – such a claim only dodges the stay if r.55.6 applies to it, ie. where “the claim has been issued against ‘persons unknown’.”

This means that a claim against only named, identified trespassers is still caught by the 90-day stay. A landowner who doesn’t know the name of the defendant is ironically in a stronger position than a landowner who does.

A QUIRK OF DRAFTING

By a quirk of the drafting, applications for an interim possession order under CPR Part 55, Section III (which can only be brought against trespassers) get around the automatic 90-day stay regardless of whether they are issued against “persons unknown” or not. If an IPO is actually granted, there has to be a substantive hearing of the possession claim itself within 7 days, under r.55.25(4) – even if the claim is one that would have been caught by the 90-day stay if it hadn’t been for the IPO application.

A careful reading of the practice direction is going to be essential when advising on trespass cases between now and July

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