Trowers' property litigation team online – 17 April 2020

17 April 2020

Here's part four of our Friday round-up with some of this week's legal news in brief, followed by positive (yes, positive) news stories. Keeping in touch in new ways, we look forward to hearing your news and remain on hand to assist with any property-related legal issues.

Remote hearings – Practicalities and Tips

In accordance with Government guidance, the Courts and Tribunals Service (HMCTS) has temporarily closed a number of courts and tribunals across the country. As a result, many hearings will now be dealt with via telephone or online video conferencing.

Telephone hearings and the use of video technology for evidence have been available in the HMCTS for a number of years, but have perhaps not been used as widely as they might have been. In light of current events, HMCTS have been working to make these facilities more readily available and it is likely that changes made now may endure beyond the current crisis.

Some key practical points for those participating in remote hearings are covered in our article.

Execution of documents in the time of Covid

With the majority of people working remotely due to coronavirus, many businesses and individuals are facing new obstacles executing documents. With the current economic uncertainty it is more important than ever to ensure that legal documents are signed and executed correctly. To help with the execution of legal documents we have set out some FAQs in our recent advice note.

While Covid-19 has made execution more difficult logistically, it is still possible to continue with matters and proceed to completion. If you would like any assistance or have any queries on executing documents please do not hesitate to contact the team on the details shown below.

Possession claim of a hospital bed

We have previously reported on the stay on possession proceedings effected by CPR PD 51Z. Last week we published a further bulletin, illustrating how the moratorium on evictions during the Covid-19 outbreak extends to trespassers who have no licence or consent to occupy premises. On 9 April 2020, the High Court considered these recent changes in the context of hospital beds in the case of University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB) – link to full judgment here.

The Claimant NHS Trust issued an urgent claim for possession of a bedroom occupied by the Defendant in the National Hospital for Neurology and Neurosurgery. The bedroom was in a ward with 12 beds, intended for those requiring acute neuropsychiatry care for short periods of up to 28 days. The Defendant had been admitted to hospital over a year earlier suffering from complex psychological conditions. The medical team treating her believed that she could safely be discharged to adapted accommodation with a 24 hour care package, but the patient wanted the 24-hour care to be guaranteed for a year and was not willing to agree to a discharge.

The bedroom which she occupied was urgently needed for other patients, due to the Covid-19 pandemic, and the NHS Trust said the patient was at an increased risk of contracting Covid-19 if she remained in hospital.

At an initial telephone directions hearings, Mr Justice Chamberlain drew the parties' attention to CPR PD 51Z, which meant that the claim for possession could not proceed. The following day the NHS Trust made an application for an interim injunction requiring the patient to vacate the bedroom as she was no longer in need of in-patient care.

The NHS Trust had terminated the patient's licence to occupy the bedroom, meaning that she was now effectively a trespasser. A property owner is, in general, entitled to an injunction to enforce its rights as against a trespasser and those rights extend to a hospital. However, the effect of granting an interim injunction in this case would be tantamount to granting final relief, which meant that it should not be granted unless the court was satisfied that there was clearly no defence to the action.

The court considered the Defendant's capacity, as well as issues raised by the Defendant under the European Convention on Human Rights and the Equality Act 2010, but ultimately it granted the NHS Trust's application, requiring the patient to vacate the bedroom.

Practical effects of the stay on possession proceedings

What does the suspension of residential possession proceedings mean practically for landlords and tenants? Where Court directions have already been given, the parties should continue to prepare for trial (for example drafting witness statements) whilst also using the time to consider ADR, mediation and/or to revisit settlement options. Ultimately, it may be more beneficial to avoid recourse to Court entirely, where possible, as even when the Courts resume full function they are going to be under a huge strain and delays are inevitable.

It must also be remembered that the protections under the Coronavirus Act 2020 should not be seen as an opportunity for landlords and / or tenants to breach the terms of their leases. Tenants have a continuing obligation to pay rent and, similarly, landlords have a continuing obligation to keep the property in repair, for example in the case of assured tenancies or a long lease in a block of flats. Non-payment of rent by a tenant is not a defence to a landlord failing to repair the property. Of course, it may be difficult for landlords to carry out some repairs due to the lack of contractors and issues gaining entry but the landlord nevertheless has a duty to take "reasonable steps" to do so and landlords will need to evidence the steps they have taken if repairs cannot be completed. In relation to long leases, landlords may seek to agree with their tenants what repair is essential (for example health and safety related), and defer less urgent repairs for a short period.

Update on winding-up petitions

Winding-up hearings have now recommenced following the High Court's temporary adjournment a couple of weeks ago. Existing winding-up petitions are now being heard via Skype and new winding-up proceedings can still be issued at Court for the time being, albeit there is likely to be a backlog.

IT infrastructure upgrades

The recent restrictions placed on office-based working as a result of Covid-19 are expected to kick-start a rise in companies planning IT infrastructure upgrades to accommodate an ever increasing remote workforce. For the technology industry the shift in working practices will provide welcome business opportunities, but for many employers they will be forced to rethink their premises requirements and how to adjust their work spaces.

For tenants who are planning on carrying out IT upgrade works to their premises, it will be worth checking the terms of their lease as a starting point. Any infrastructure upgrades may require landlord's consent and a licence to make alterations to the premises or there may be a need to enter into separate wayleave agreements. Landlords and tenants should also keep in mind the impact of any reinstatement provisions in the lease.

This week's positive news

Whilst taking her daily exercise, one of our team is enjoying the tiny works of art in the "Community Pebble Gallery" which has sprung up near the beach in Whitstable.
Captain Tom Moore, a 99 year old war veteran has walked 100 laps of his garden and raised more than £16m (and counting) for the NHS. Captain Moore has received over 800,000 donations online having decided to complete the challenge as a way of raising money to thank the NHS and its staff for their continued hard work.
In Wales, donations of phones and tablets are helping patients keep in touch with families and friends.
In Belper, Derbyshire, the locals are reportedly gathering on their doorsteps at 6.30pm every evening to join in a cattle chorus, "mooing" for two minutes to lift their spirits.