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Practice Direction 51Z is here to stay

Arkin v Marshall 2020 challenged the legality of PD51Z, staying all possession proceedings under CPR Part 55 for 90 days during the pandemic.

Arkin v Marshall – Court of Appeal judgment

Summary

The case of Arkin v Marshall 2020 challenged the legality of Practice Direction 51Z which came into effect on 27 March 2020, staying all possession proceedings under CPR Part 55 for a period of 90 days during the COVID-19 pandemic.

Facts

A fixed charge receiver had brought mortgage possession proceedings and the parties had agreed directions, some of which fell due within the stay period. The county court determined that the stay applied to these proceedings. The fixed charge receiver appealed.

By the time the matter came before the Court of Appeal, Practice Direction 51Z had been amended (on 20 April) to provide that a stay does not apply to “an application for case management directions which are agreed by all the parties”. The court considered (a) whether the stay was lawful and, if so (b) whether, in the absence of agreement between the parties, the court could lift the stay in certain cases requiring the parties to comply with case management directions.

Judgment

The Court of Appeal handed down its judgment on 11 May 2020, dismissing the appeal.  Practice Direction 51Z was lawful, was consistent with the Coronavirus Act 2020 and is compatible with Article 6 European Convention on Human Rights. 

It was held that whilst a court retains the discretion to lift a stay, in possession proceedings it should not do so unless there are ‘exceptional circumstances’. It was suggested that the only exception might be where the stay would operate in such a way as to defeat the purposes of Practice Direction 51Z and endanger public health. As such, a lift in the stay under Practice Direction 51Z would only be granted in very extreme circumstances and is highly unlikely in most cases.

Comment

In summary, this decision highlights the intended purpose of the blanket stay imposed by Practice Direction 51Z, that is to ensure that neither the administration of justice nor the enforcement of possession orders endanger public health by the unnecessary transmission of the coronavirus. Going forward in this pandemic and during the period of the stay, the parties have no entitlement to apply to court to enforce compliance with directions, even where those directions are agreed. However, if the parties do agree to meet deadlines during the stay and they fail to do so, their conduct may be taken into account.

If you would like to discuss further please liaise with Jennifer Rogers, Associate at Jennifer.rogers@weightmans.com or Sian Evans, Partner at sian.evans@weightmans.com.

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