Possession Proceedings during COVID: PD51Z stay only to be lifted in exceptional circumstances
Practice Direction 51Z came into effect on 27 March 2020 and imposed a blanket stay of 90 days on all possession proceedings brought under Part 55 of the Civil Procedure Rules (excluding claims for injunctive relief). This was later updated on 18 April 2020 to also exclude clams against trespassers under rule 55.6, applications for interim possession orders under Section III of Part 55 and applications for case management directions which are agreed by all the parties.
Background
Arkin -v- Marshall concerns claims brought under Part 55 by a Receiver (appointed by Mortgagees) in respect of two adjacent properties. The claims were disputed, allocated to the multi-track and transferred to the County Court at Central London. Directions were agreed by the parties on 26 March 2020 and sealed by HHJ Parfitt on 27 March 2020 – the same date that PD51Z originally came into force.
The directions provided for disclosure and exchange of witness evidence during the period of the stay imposed by PD51Z, with the trial window between 5 October 2020 and 8 January 2021.
It was the Respondents’ view that the effect of PD51Z was to discharge the parties of the obligation to comply with the agreed directions within the 90 day stay. However, the Appellant did not accept that the stay applied to the proceedings at all and, if it did, it should be lifted.
On 15 April 2020, HHJ Parfitt considered the written submissions of Counsel for each party on this point. HHJ Parfitt held that the proceedings were stayed and he had no power to lift that stay. HHJ Parfitt also pushed back the dates for the directions until after the stay had been lifted.
The Appeal
The Appellant appealed the decision of HHJ Parfitt. The issues in question were:
- Whether PD15Z was lawful;
- If so, whether PD51Z was intended to apply to all cases, even those that had proceeded past the stage allocation to the multi-track and had been given case management directions; and
- Whether HHJ Parfitt was wrong to decide that he has no power to lift the stay imposed by PD51Z.
The amendments to PD51Z, as set out above, were made prior to the hearing of the appeal which took place on 30 April 2020. In light of these amendments, point 2 above was not pursued further at the hearing.
Although the challenge to the lawfulness of PD51Z was considered a challenge that ought to have been brought pursuant to Part 54 as a judicial review, in the circumstances of this case, the Court of Appeal considered that there was a ‘strong public interest in an early and authoritative ruling as to the validity of PD51Z’ [17] without endorsing a departure from the Part 54 procedure for judicial reviews.
PD51Z was made under Rule 51.2 which allows for modification or disapplication of provisions under the Civil Procedure Rules during the operation of pilot schemes. The Lord Chancellor (who was added as an interested party to the claim on account of the challenge to lawfulness) submitted that ‘PD51Z is a pilot for future practices and procedures that may be introduced to deal with the continuing problems caused by COVID-19 or other pandemics or in other emergencies’ [21]. The Court of Appeal held that this intention was clear from the wording of the first paragraph of PD51Z.
The Appellant argued that sections 81-82 and Schedule 29 of the Coronavirus Act 2020 (which relates to protection from eviction/forfeiture for residential/business tenancies) are in conflict with PD51Z which came into force at a later date. However, this was dismissed on the basis that the Act changed substantive law, whilst PD51Z simply imposes a temporary stay during a peak phase of the pandemic. There is no conflict.
The Appellant also submitted that PD51Z conflicts with Article 6 of the European Convention on Human Rights (the right to a fair and public hearing within a reasonable time). This was also dismissed with the Court of Appeal stating that a short delay to possession litigation is justified by the exceptional circumstances of the coronavirus pandemic and was in the interest of public health.
On considering whether the Court has jurisdiction to lift the stay imposed by PD51Z, the Court of Appeal held that although theoretically it did have the power to lift any stay, it should only be used in the most exceptional circumstances, in particular if the stay defeated the purpose for which it had been imposed. In this instance, a blanket stay was imposed with the purpose of protecting public health and the administration of justice generally, and so it is difficult to see what sort of circumstances might be so exceptional.
Concerning this case specifically, the fact that the parties had agreed directions before PD51Z came into force was not sufficient reasoning to lift the stay. The Court of Appeal held that the parties remained capable of complying with the agreed directions, albeit neither party would be permitted to apply to the Court during the period of the stay if the other failed to do what was agreed.
Conclusion
Parties to claims made pursuant to Part 55 should continue to comply with directions handed down prior to the stay imposed by PD51Z, where possible.
In instances where compliance is no longer possible, parties are expected to be reasonable in agreeing extensions of time for compliance, in the hope that this will prevent an influx of applications once the stay imposed is lifted. In order to assist, another Practice Direction, PD51ZA was introduced on 2 April 2020, which allows parties to agree an extension of up to 56 days without formally notifying the Court (rather then the current 28 days), as long as such an extension does not put a hearing date at risk.
It is important to note that whilst these new Practice Directions currently cease to have effect on 30 October 2020, that is not to say that they won’t be extended if it is deemed necessary. Parties should, therefore, continue to keep their litigation under review during this time.
