12
May
20
Articles, Property, Chancery & Commercial
Arkin v Marshall – Challenge to PD 51Z Dismissed

The Court of Appeal has handed down judgment in the appeal concerning CPR Practice Direction 51Z (“PD51Z”) which stays all Part 55 possession clams for 90 days from 27 March 2020. The PD was amended on 20 April 2020 to no longer include claims against trespassers, the issue of new claims or applications for case management directions that are agreed between the parties.

Background

This claim for possession was issued in September 2019 and allocated to the multitrack with agreed directions made on 26 March 2019, which provided for the usual steps of disclosure, witness evidence and so on to take place. That order was sealed on 27 March 2020, the same day that the stay imposed by PD51Z came into effect.

In the circumstances, the Defendant asserted that the claim was stayed. In response, the Claimant applied for the stay to be lifted on the basis the agreed directions could be complied with during the stay provided by PD51Z.

The application was dismissed with HHJ Parfitt who held that the stay imposed was a blanket stay which could not be lifted using the Court’s case management powers under CPR 3. Permission to appeal directly to the Court of Appeal was given.

Court of Appeal Decision

The appeal was dismissed.

The Court dealt briefly with the jurisdiction point, deciding that in the unusual circumstances of the case, it was appropriate to deal with the appeal in the claim between the parties rather than by judicial review in the interests of an early and authoritative ruling on the validity of PD51Z.

The Court then went on to hold that:

  • PD51Z is a Pilot scheme which was properly enacted CPR 51.2, for good reason:

We can see no reason why it is not reasonable to envisage that the stay imposed by paragraph 2 may be shown to be effective: (a) to relieve pressures on the administration of justice during the pandemic, (b) to reduce the risks of spreading the virus occasioned by enforcing possession orders and thereby forcing citizens to move home rather than stay at home as the Government has advised, and/or (c) to abrogate court hearings, whether remotely or face to face, in possession proceedings, thereby avoiding the need for court staff and litigating parties to risk transmission of the virus.  Once that has been assessed, we cannot see why it may not be appropriate for the Master of the Rolls to consider putting in place a permanent rule or PD that imposes a limited stay on possession proceedings when and if the pandemic peaks again.” [paragraph 26]

  •  PD51Z is not inconsistent with the provisions contained in Schedule 29 of the Coronavirus Act 2020:

“They make separate and different provisions.  The Act changes the substantive law, and PD 51Z imposes a temporary stay to protect and manage County Court capacity, and to ensure the effective administration of justice without endangering public health during a peak phase of the pandemic.” [paragraph 28]

 

  •  The PD is not incompatible with Article 6 or the principle of access to justice because “the short delay to possession litigation enshrined in PD 51Z is justified by the exceptional circumstances of the coronavirus pandemic” [paragraph 33].

 

  • The amendment to PD51Z made on 20 April 2020 does not exclude ‘agreed’ directions from the stay, only ‘applications for agreed directions’:

“There is an obvious value in the parties agreeing, and obtaining the court’s endorsement of, directions which will take effect on a date or dates post-dating the end of the stay: they will come out of the end of the stay with an already-established timetable, and avoid a potential rush to make applications immediately the stay is lifted.”

 

“…there is also value in the parties agreeing, and obtaining the court’s endorsement of, directions which take effect during the stay albeit they cannot be enforced during its currency: we see no reason why parties cannot for example, get on with agreed directions for disclosure on a voluntary basis during the stay, and thereafter, seek to adjust any post-stay case management timetable by reference to steps agreed to be taken during the period of the stay.” [paragraph 38]

 

  • Finally, that whilst the PD does not override the general power to lift a stay contained in CPR 3.1, the court did “not think that any normal case management reasons could be enough to justify an individual judge lifting the stay imposed by PD 51Z. The reasons for it make it clear that they go far beyond any individual relationship of landlord and tenant or mortgagee and mortgagor. The blanket stay has been imposed to protect public health and the administration of justice generally.

It remains to be seen what will count as the appropriate ‘exceptional circumstances’ which would justify lifting the stay, but the judgment makes it clear that these are likely to be few and far between; such that not lifting the stay would defeat the purpose of PD51Z itself.

The fact that the parties can apply to obtain agreed directions, but not be able to enforce their compliance during the period of the stay will be of little practical assistance to most litigants, but is particularly unhelpful for claimant landlords.

Further, the court indicated [at paragraph 23] that the effect of the pandemic on the court system is unlikely to have eased by the end of the current stay period on 25 June 2020. It appears unlikely therefore that, even with an ease in the lockdown hopefully on the way, the effects of PD51Z will cease completely on 25 June 2020. More likely, further modifications will be made which may provide some extra flexibility for litigants which has not come from this recent judgment.

Written by or involving: Christopher Pask

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