PD51Z Stay on Possession Proceedings is not unlawful – Guidance from the Court of Appeal provided today

PD51Z Stay on Possession Proceedings is not unlawful – Guidance from the Court of Appeal provided today

This article was published on: 11th May 2020

The Court of Appeal’s Judgment in the case of Arkin v Marshall was handed down today. This appeal, which was concerned with two residential mortgage possession claims, considered a number of issues, including:

  • whether the 90 day stay of possession proceedings imposed by Practice Direction (PD) 51Z is unlawful;
  • whether the stay applies to the requirement to comply with case management directions in the interim; and
  • whether the stay should be lifted in respect of individual cases

The appeal was dismissed.

There were five key questions considered:

1. Does the Court of Appeal have jurisdiction to consider the lawfulness of PD 51Z, and should it do so?

The Court determined that it did have such a power, and that no real unfairness would be created by exercising it.

2. Was the making of PD 51Z properly authorised by CPR Part 51.2 as a pilot scheme “for assessing the use of new practices and procedures in connection with proceedings”?

The Court determined that PD51Z should be regarded as a “pilot” and that it is “intended to assess modifications to the rules and PDs that may be necessary during the coronavirus pandemic.”

3. Is PD 51Z inconsistent with or rendered unlawful by the provisions of the Coronavirus Act 2020?

The Appellant failed to persuade the Court that PD 51Z was inconsistent with the Coronavirus Act 2020, stating that “the Act changes the substantive law, and PD51Z imposes a temporary stay…to ensure effective administration of justice without endangering public health during a peak phase of the pandemic”.

4. Is PD 51Z inconsistent with article 6 of the European Convention on Human Rights or the principle of access to justice?

The Appellant’s arguments were again rejected by the Court, which stated that “…the short delay to possession litigation enshrined in PD51Z is amply justified by the exceptional circumstances of the coronavirus pandemic.”

5. Does PD 51Z apply to cases allocated to the multi-track in which case management directions had been given before it was introduced?

Subsequent amendments to PD51Z (paragraph 2A(c)) have recently confirmed that the stay does not apply to an application for agreed case management directions.

6. Does the court have jurisdiction to lift the stay imposed by paragraph 2 of PD 51Z?

The Court determined that a judge does, in principle, retain the power to lift the stay which is imposed by PD51Z but it warned that there would be “great difficult in envisaging such a case” in which that power could or should be exercised.

7. Should the Court have lifted the stay in this case?

The Court stated that the circumstances of this case “do not allow the court to lift the stay”.

Practical Effects

This is a significant decision which confirms the wide application and effect of PD51Z to all possession proceedings caught by the stay (which will not include those which were excluded by recent amendments, such as certain trespasser proceedings).

Although a Court may, in theory, lift that stay it will be extremely difficult for a party to succeed in such an application, even in exceptional circumstances. Recent amendments to PD51Z also confirm that an application for case management directions, agreed by all the parties, will not be caught by the stay.

The decision provides helpful clarity for landlord and tenants affected by the stay, and the next key decision is likely to be whether the current stay period, which expires on 30 June 2020, remains in place or is extended further.

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