Courts and Inquiries
- The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350 have been amended by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020/447, as at 11.00 am on 22 April. Changes are summarised in theExplanatory Memorandum at paragraph 6.6.
- PINS recently issued an update regarding what the public can expect from it during the lockdown. Key points to note:
- Site visits remain postponed up until the middle of May, alongside hearing and inquiry physical events, as per previous guidance issued on 01 April. Cases have been progressed where the physical event was concluded prior to lockdown, no physical event is required, or where physical activity is further in the future and preparatory activity can continue.
- New cases are continuing to arrive at the normal level.
- The first ‘fully digital’ hearing is to take place on 11 May, with additional cases to be heard by digital hearings and inquiries in May and early June, with a view to upscaling digital events further over June/July.
- Postponed cases are being assessed to establish whether they can proceed digitally, traditionally, or via a hybrid approach.
- A trial of ‘virtual site visits’ is underway involving 13 Inspectors.
- Five local advisory visits have taken place remotely.
- The current aims are:
- 3 months from now, to roll out good practice “widely” in terms of number and events and types of casework covered,
- Six months from now, to develop the capability to conduct fully digital and hybrid events fairly and robustly across all casework areas.
- Anecdotally, it has been reported that individual Inspectors are provisionally listing inquiries for October/November 2020, in cases where appeals have already been validated.
- Richard Turney has participated in the first multi-day Planning Court remote hearing before Holgate J. Holgate J has previously provided guidance for how he wants these to be run (see our previous post here), and further guidance will be coming in due course.
- The National Infrastructure Planning Association has prepared a paper for the Government making recommendations regarding DCOs and Nationally Significant Infrastructure Projects during the current crisis.
Public Law, Health & Social Care Update
- Guidance for the Upper Tribunal Administrative Appeals Chamber has been updated as at 23 April. The full list of guidance can be found here.
- Debate has raged about the surge in winding up petitions for commercial tenants unable to pay their rent. See, here for the recent article by Tim Morshead QC and Evie Barden on whether a corporate tenant can get an injunction to restrain presentation of a winding up petition while the Coronavirus Act 2020 restricts its landlord’s ability to forfeit its lease.
- The Government, however, has stepped in. The Business Secretary announced on 23 April 2020 that it would introduce temporary measures in the forthcoming Corporate Insolvency and Governance Bill to protect “High street shops and other companies” from aggressive rent collection. The measures announced include:
- Changes to secondary legislation to prevent landlords using Commercial Rent Arrears Recovery (CRAR) unless they are owed 90 days of unpaid rent; and
- A temporary ban on the use of statutory demands and winding up orders where a company cannot pay their bills due to coronavirus. This is to be included in the Corporate Insolvency and Governance Bill.
And the Government’s Notes to Editors advises that:
“Under these measures, any winding-up petition that claims that the company is unable to pay its debts must first be reviewed by the court to determine why. The law will not permit petitions to be presented, or winding-up orders made, where the company’s inability to pay is the result of COVID-19.”
This suggests that there is unlikely to be a blanket ban, and that the courts will have a role to play in deciding what petitions may be presented, with regard to the reasons for insolvency.
- On 24 April, changes to the use of CRAR came into force in the Taking Control of Goods and Certification of Enforcement Agents (Amendment) (Coronavirus) Regulations 2020/451. The effect: while s. 82 Coronavirus Act 2020 in in force, a landlord cannot use CRAR unless an amount equal to 90 days unpaid rent is outstanding.
- Following the amendment of PD51ZA on , it is now clear that case management directions may be sought, where agreed by the parties. It is also clear now clear that the automatic stay does not apply to Interim Possession Orders (“IPOs”). In a recent podcast, Brooke Lyne explains what an IPO is and how to get one.
- On 30 April 2020, the Court of Appeal is due to hear a challenge to Practice Direction 51ZA (PD) in Arkin v Marshall. The joined claims are brought by receivers to enforce mortgage rights. At first instance counsel for the claimants argued that the 90 day stay did not exclude the court’s discretion to require the parties to comply with agree directions or to lift the stay in individual cases. HHJ Parfitt rejected that argument (see first instance judgment here) and the claimants have now appealed, it is understood on grounds which include that the stay is unlawful/ultra vires. The Housing Law Practitioners Association are considering an application to intervene, and are seeking evidence from practitioners.
- The TCC gave guidance on the approach to applications for extension of time for complying with directions in Muncipio de Mariana v BHP Group plc  EWHC 928 (TCC). With regard to applications for extensions of time, Judge Eyre QC stated
- The objective if it was achievable was to keep to existing deadlines and where that was not realistically possible to permit the minimum extension of time which was realistically practicable. The prompt administration of justice and compliance with court orders remained of great importance even in circumstances of a pandemic.
- The court could expect legal professionals to make appropriate use of modern technology.
- The court could expect and require from lawyers a degree of readiness to put up with inconveniences; to use imaginative and innovative methods of working; and to acquire the new skills needed for the effective use of remote technology.
- The approach required of lawyers could also be expected from professional expert witnesses. However, rather different considerations were likely to apply where the persons who would need to take particular measures were private individuals falling outside those categories.
- The court should be willing to accept less polished evidence and other material.
- However, the court had to take account of the realities of the position and while requiring lawyers and other professionals to press forward care had to be taken to avoid requiring compliance with deadlines which were not achievable even with proper effort.
- The court had to have regard to the consequences of the restrictions on movement and the steps by way of working from home which had been taken to address the pandemic.
- Those factors were to be considered against the general position that an extension of time which required the loss of a trial date had much more significance and would be granted much less readily than an extension of time which did not have that effect.
- Aaron Walder has published a piece in the Estates Gazette discussing how rent should be valued during the COVID-19 pandemic. The full piece can be found here.
Issue Authors: John Litton QC, Stephen Morgan, Aaron Walder, Evie Barden, Matthew Dale-Harris, Nick Grant, Alex Shattock