STOP PRESS: COURT OF APPEAL CHALLENGE TO PRACTICE DIRECTION 51Z, “STAY OF POSSESSION PROCEEDINGS – CORONAVIRUS”, FAILS

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At 1pm yesterday, 11th May 2020, the Court of Appeal handed down its judgment (remotely, of course) on PD51Z in the case of Arkin v Marshall & Anr (Lord Chancellor interested party; Housing Law Practitioners Association intervener) [2020] EWCA Civ 620.  The report can be found here. 

Sir Geoffrey Vos, Chancellor of the High Court, gave the decision of the Court of Appeal.  The bulk of the decision on fundamental challenges to legality could have been anticipated:  the Practice Direction is not ultra vires, it is pilot scheme, it does not offend the Coronavirus Act 2020, and it is compatible with Article 6 and the Principle of Access to Justice.

The interest for practitioners will be on the power of the Courts to lift the stay in individual cases:  the case management powers of the Court under CPR Part 3.1 remain effective, so the power to lift the stay exists.  Exercise of that power would, however, be very exceptional:  “while we would not go so far as to say that there could be no circumstances in which it would be proper for a judge to order that the stay imposed by PD 51Z should be lifted in a particular case, we have great difficulty in envisaging such a case” (para.42).  Where the stay itself endangers public health, was the only possibility raised (although the Court expressly declined to comment on the decision of Judge Freedman in Bernicia Group v Mark Mann (17 April 2020, County Court at Newcastle) – where the stay was apparently lifted for the purpose of taking possession of a property that was long vacant – because of insufficient detail on why the Judge in that case acted in that way).  The Court of Appeal further stated “it would almost always be wrong in principle [for the Court] to use” its power to lift the stay (para.46) and “possession claims are not to be dealt with on a normal case by case basis during the stay.  The Court pointed out that interested parties can make representations to the Master of the Rolls to amend the Practice Direction, as the Property Bar Association and Property Litigation Association have done.

Finally, the Court of Appeal addressed the effect of the stay, emphasising that parties should cooperate when they had agreed directions:  the stay stops enforcement of directions, but what is agreed can still be done.  In fact, there is also a veiled threat if what is agreed is not done by reason of the stay, but without good cause:  “If either party fails to do what it agreed to do during the period of the stay, the other party will, no doubt, be able to rely on that circumstance once the stay is lifted. It will be able to ask the court, at that stage, to take the conduct of the other party into account in making revised directions.” (para.50)  Be warned!

Anthony Verduyn

St Philips Chambers, Birmingham