The Court of Appeal today handed down judgment in Arkin v Marshall [2020] EWCA Civ 620 in which it held that the stay on possession proceedings imposed by Practice Direction 51Z (“PD 51Z”) is lawful and will only be lifted in exceptional cases.
Background
In response to the outbreak on COVID-19 the Government sought to relieve pressure on residential property tenants whose income had been impacted by the lockdown. These included extending the statutory notice period for landlords which were incorporated in the Coronavirus Act 2020.
In addition, on 26 March 2020, PD 51Z entered into force which effectively stayed all possession matters for a period of 90 days i.e. until 25 June 2020.
PD 51Z provides: “Subject to paragraph 2A, all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force.”
The exceptions to the stay are: “(a) a claim against trespassers… (b) an application for an interim possession order under Section III of Part 55… (c) an application for case management directions which are agreed by all the parties.”
In the first instance decision, HHJ Parfitt was required to consider whether the parties to a possession claim brought under CPR 55 on 24 September 2019, were required to comply with directions that were due to be carried out during the stay.
It was argued on behalf of the Claimant, that complying with the directions would impose no risk to publish health and therefore the stay should not have applied to the proceedings. HHJ Parfitt, however, held that the court had no discretion to lift the stay.
The Claimant subsequently appealed.
The Appeal
The Court of Appeal was required to determine:
- Whether the stay on possession proceedings in PD 51Z is ultra vires;
- Whether the stay applies to the requirement to comply with case management direction.
- Whether, in individual cases, the stay should be lifted.
The Court of Appeal dismissed the appeal on the grounds that PD 51Z was both lawful and did not conflict with the right to a fair trial under Article 6 of the European Convention on Human Rights. Furthermore, that PD 51Z complied with the provisions of the Coronavirus Act 2020.
Whilst the Court of Appeal acknowledged that the court has the theoretical power to lift any stay, it would be in wrong in principle to use it. As such it would only do so in truly exceptional circumstances, such as where a stay would defeat the expressed purposes of PD 51Z itself.
Comment
The decision emphasises the high threshold required for lifting the stay imposed by PD 51Z. It also clarifies the requirement on parties to progress matters during the stay period and reiterates the fact that parties as always will be subject to sanctions if they fail to do so.
It, therefore, provides much needed clarity on questions the question marks raised in respect of PD 51Z by landlord and tenants alike.