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Does the automatic stay exclude all trespasser claims?

High Court reaffirms blanket stay on possession claims

Co-authored by Ranjeet Johal of Mills Chody LLP and James Poole of Ten Old Square Chambers

Is any claim against ‘persons unknown’ excluded from the automatic stay on possession claims? This was the question that the High Court had to consider in Rahbarpoor v Suliman.  The claim is for possession of a property in Ealing.  The claimants issued proceedings for possession in June 2018 against two named defendants and persons unknown, alleging that the defendants had unlawfully entered and occupied the property and had then began sub-letting it.  The defendants aver that the claimant transferred the beneficial ownership of the property to the first defendant in 2001 and rely on a trust deed purportedly entered into in January 2001.  The claimants say that this is a forgery.

The defendants applied to strike out the claim by the second claimant. The claimants argued that the application could not be heard as the claim was caught by the automatic stay on possession claims, first provided for by PD51Z and then by CPR r55.29.

The defendants disagreed. They argued that this was a claim in trespass and one of the defendants was ‘persons unknown’ so the trespasser exemption at r55.29(2)(a) (and at paragraph 2A(a) of PD51Z) was applicable; the blanket stay therefore did not apply.

The claimants said that trespasser exception did not apply here as:

  1. Although ‘persons unknown’ were a party to the claim, they were not the only defendants and so the exemption was not engaged. If the defendants were correct, then all a landlord needed to do to avoid the stay was to name ‘persons unknown’ as a party to the claim. That could not be what was intended when the stay was imposed. The exemption applies when ‘persons unknown’ are the only defendant.
  2. On three separate occasions this year the Court of Appeal had adopted a purposively broad construction of PD51Z in order to extend the blanket stay as far as possible. The defendants’ position was wholly inconsistent with this.

Deputy Master Rhys, in an ex tempore judgment, held that this was a claim to which the automatic stay applied and was not one which was subject to the exemption at rr55.29(2)(a). That exemption did not apply to claims where there was a named defendant as well as ‘persons unknown’. In coming to this judgment, the Deputy Master agreed with the claimants’ arguments that the stay was to be construed as widely as possible. In his judgment, the purpose of the stay was clear, and the defendants’ arguments would “drive a coach and horses through the Practice Direction and its intended effect”. The defendants’ position was “semantically arguable” but “wholly inconsistent with the purpose of the Practice Direction”.

However, the defendants were given permission to appeal on the basis that the judgment raises an important point of principle in respect of the operation of the stay and the ‘trespasser exemption’.

Mills Chody LLP and James Poole of Ten Old Square acted for the claimants.

This article is for information purposes only and is not legal advice. It should not be acted or relied upon and legal advice should be sought before applying any of the information in this article to any facts or circumstances.

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