Court of Appeal gives judgment in important decision on PD51Z
11th May 2020
Arkin v Marshall & Others  EWCA Civ 620
Philip Rainey QC
and Michael Walsh
acted for the Appellant in this important appeal which concerns CPR Practice Direction 51Z (“PD51Z”) which stays (with very limited exceptions) all Part 55 possession clams until after 25 June 2020 (a date which may be extended).
The Court of Appeal have decided that:
- It is possible to challenge the vires of PD51Z in private law proceedings, without having issued a claim for judicial review (§14-15);
- PD 51Z was not ultra vires and is a Pilot within the meaning of CPR 51.2;
- The stay imposed by PD51Z can in principle be lifted (§42) but only in the “most exceptional circumstances” (§46).
- If parties agree directions under paragraph 2A(c) of PD51Z, those directions are nevertheless automatically stayed for the duration of PD51Z (§38).
The Claim and Procedural History
This is a case is a linked pair of complex mortgage possession claims brought by a fixed charge receiver in respect of a farmhouse and associated buildings. One claim is brought against the mortgagor for possession of the principal buildings; the second claim is brought against the mortgagor’s wife and son, who are said to be in possession of other buildings on the land.
A claim was issued in the Hertford County Court under CPR Part 55 as long ago as 24 September 2019 for possession of the properties. A first possession hearing was listed for 6 November 2019. The Claims were then transferred to the County Court at Central London and HHJ Parfitt gave case management directions by consent in an order made on 26 March 2020, which was sealed on 27 March 2020. The directions were the usual disclosure, witness statements and so forth. The trial window does not begin until 5 October 2020, with a telephone listing appointment on the first open date.
Due to the Covid-19 pandemic, the Master of the Rolls and the Lord Chancellor signed Practice Direction 51Z on 26 March 2020, which placed a stay on all CPR Part 55 possession proceedings. PD51Z came into force the following day, which was the same day the case management directions order was sealed.
The Marshalls’ counsel wrote to the Receiver’s solicitors asserting that the newly agreed directions had been stayed by PD51Z. The Receiver subsequently applied for the stay to be lifted, on the basis that the directions had been agreed by consent and could be followed during the stay period announced by PD51Z.
On 15 April 2020, HHJ Parfitt refused to lift the stay. His judgment held that PD51Z imposed a blanket stay which the Court did not have the discretion to lift using its case management powers under CPR Part 3..
Kerr J granted permission to appeal and transferred the case to the Court of Appeal on 15 April 2020.
The grounds of appeal were as follows:
- The Practice Direction was made ultra vires.
- Alternatively, the learned judge was wrong to find that PD51Z was intended to apply to all proceedings under part 55, even if they had proceeded part the stage of being allocated to the multi-track and given case management directions.
- The learned judge was wrong to decide that the Court had no power to lift the stay on a case by case basis.
The Practice Direction was amended on 18 April 2020 and dealt with some of the issues raised by the appeal. Namely, that PD51Z does not prevent claims from being issued under CPR Part 55 and nor does it apply to claims for possession against trespassers who are ‘persons unknown’ or to claims for possession to which CPR 55.21 applies.
The Amended Practice Direction at 2A(c) also says parties are able to make an application for case management directions which are agreed by all the parties during the stay period.
The Appeal was heard on 30 April 2020, with the Lord Chancellor appearing as an interested party and the Housing Law Practitioner Association intervening by way of written submissions.
The appeal was brought swiftly in the inter partes claims; it was not a judicial review. The challenge to the vires of PD51Z was limited to whether or not it was within the power conferred by CPR 51.2 under which it purported to be made; a point which was linked to the question of whether it was possible to lift the automatic stay. There was accordingly no direct attack on proportionality etc.
It was argued on behalf of the Marshalls and the Lord Chancellor that it was not possible to challenge the vires of PD51Z in private law proceedings and the Receiver ought to have issued proceedings for judicial review.
The Court decided that it was possible to consider the challenge in these proceedings and acknowledged that cases such as O’Reilly v Mackman  2 AC 237 and Wandsworth LBC v Winder (No.1)  A.C. 461 permitted exceptions to the general rule that challenges to the exercise of powers by public authorities should be by way of judicial review.
The Court concluded there was a strong public interest in an early and authoritative ruling on the validity of PD51Z (§17) but that it was not endorsing “a departure from previous case-law about the circumstances in which a challenge of this kind can be raised otherwise than by way of judicial review” (§18).
Is PD51Z ultra vires?
CPR 51.2 authorises “pilot schemes” to be made by Practice Direction. Crucially, CPR 51.2 authorises such “Pilot” Practice Directions to amend or disapply Rules in the CPR (normally a Practice Direction is subservient to the Rules). The Appellants’ principal argument was that PD51Z is not a Pilot, rather it is the purported exercise of an emergency power for a limited period and therefore CPR 51.2 cannot be the basis for it. Accordingly, the Appellants argued that PD51Z cannot be used to amend the CPR to impose a blanket stay on all proceedings under Part 55, save for the exceptions in the amended PD.
The Court found that paragraph 1 of the recital to PD51Z was the starting point, which provides that it “is intended to assess modifications to the rules and [PDs] that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders is carried out so as not to endanger public health” (see §22).
At §23 the Court indicated that PD51Z may be trialling longer term restrictions on possession claims, given that the Covid-19 Pandemic will be far from over when the current iteration of PD51Z expires on 24 June.
At §25, the Court went on to hold:
We can see no reason why it is not reasonable to envisage that the stay imposed by paragraph 2 may be shown to be effective: (a) to relieve pressures on the administration of justice during the pandemic, (b) to reduce the risks of spreading the virus occasioned by enforcing possession orders and thereby forcing citizens to move home rather than stay at home as the Government has advised, and/or (c) to abrogate court hearings, whether remotely or face to face, in possession proceedings, thereby avoiding the need for court staff and litigating parties to risk transmission of the virus. Once that has been assessed, we cannot see why it may not be appropriate for the Master of the Rolls to consider putting in place a permanent rule or PD that imposes a limited stay on possession proceedings when and if the pandemic peaks again.
For this reason, it was held that PD51Z is a Pilot within the meaning of CPR 51.2 (§26)
The second limb of the Appellants’ argument was that PD51Z restricted access to the Courts because it imposed a blanket stay (in its original form) without the express authorisation of Parliament. Indeed, s.82 and schedule 29 of the Coronavirus Act 2020 expressly envisage applications being made to Court in possession proceedings. Had Parliament intended all possession proceedings to be stayed it would have legislated for that; PD51Z rendered rights conferred and preserved by the 2020 Act nugatory.
This submission was buttressed by the Supreme Court’s decision in R (Unison) v Lord Chancellor  3 WLR 409 that a piece of delegated legislation would be ultra vires if there were “a real risk that persons will effectively be prevented from having access to justice” (per Lord Reed at ). He also said at  that “impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible. More recent authorities make it clear that any hindrance or impediment by the executive requires clear authorisation by Parliament” and that “[t]he court’s approach in these cases was to ask itself whether the impediment or hindrance in question had been clearly authorised by primary legislation” , and that “[e]ven where a statutory power authorises an intrusion upon the right of access to the courts, it is interpreted as authorising only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question” .
The Court of Appeal disagreed. The Court found that there was no inconsistency between PD51Z and the 2020 Act (§28):
“They make separate and different provisions. The Act changes the substantive law, and PD 51Z imposes a temporary stay to protect and manage County Court capacity, and to ensure the effective administration of justice without endangering public health during a peak phase of the pandemic”.
PD51Z was also not incompatible with the common law principle of access to justice, or Article 6 of the European Convention on Human Rights (§34). The Court held that the exceptional circumstances of the coronavirus pandemic “amply justified” the short delay.
Complying with agreed directions
The Appellants argued that if parties had agreed directions for which an application was made under paragraph 2A(c) of PD51Z, the stay obviously did not apply to those directions. The Court of Appeal disagreed and held that the application to embody those directions in an order was the only exception to the stay (§38). The Court said:
“There is an obvious value in the parties agreeing, and obtaining the court’s endorsement of, directions which will take effect on a date or dates post-dating the end of the stay: they will come out of the end of the stay with an already-established timetable, and avoid a potential rush to make applications immediately the stay is lifted.”
The Court went on to suggest that:
“…we see no reason why parties cannot for example, get on with agreed directions for disclosure on a voluntary basis during the stay, and thereafter, seek to adjust any post-stay case management timetable by reference to steps agreed to be taken during the period of the stay.”
At §50 it was said “The parties are capable of complying with the directions they agreed whether or not the stay is lifted. The stay simply means that neither party will be able to apply to the court to enforce compliance with the agreed directions whilst it remains in place.”
Lifting the stay, but only in “exceptional circumstances”
The Court of Appeal accepted that PD51Z does not oust the general case management power to lift a stay (§42). However, although the Courts therefore retain a discretion to lift the PD51Z stay, it is almost entirely circumscribed. The Court of Appeal said (at §44):
“we do not think a any normal case management reasons could be enough to justify an individual judge lifting the stay imposed by PD 51Z … The blanket stay has been imposed to protect public health and the administration of justice generally. The approach of a blanket stay reflects the balance struck by the Master of the Rolls, and makes clear that possession claims are not to be dealt with on a normal case by case basis during the stay. We would strongly deprecate parties troubling the court with applications that are based only on such reasons and which are in truth bound to fail.”
Although there is the theoretical the power to lift the stay it “would almost always be wrong in principle to use it” (§46).
The Court went on to say:
“We do not, however, rule out that there might be the most exceptional circumstances in which such a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD 51Z itself.”
The question therefore is “what are those exceptional circumstances?” In the face of this trenchant warning against the use of the power to lift the stay it will probably only be done where there is a danger to life or to property.
The full ramifications of the Arkin judgment will take time to emerge, but certain points are immediately apparent.
First of all, at §23 the Court of Appeal pointed out that because the Pandemic will not have abated by 25 June when PD51Z expires, and pressures on the courts may not have eased, continued restrictions on possessions may be necessary after that date. Many in the property industry may well have been assuming that with lockdown about to ease, PD51Z will simply end on 25 June but that is a very unwise assumption.
The narrow interpretation of the recently-introduced paragraph 2A(c) exception in the amended PD51Z may also be a surprise to many. Being able to make an application for agreed directions, but not have time limits running, would seem of limited utility. Requiring parties to complex possession proceedings to get on with disclosure, witness statements, expert evidence, mediation etc. during the period of the stay would prevent a deluge of cases needing disposal at the end of the stay. None of the foregoing requires the movement of people or attendance at Court.
It must be questionable how many defendants in possession proceedings will consider it in their interests voluntarily (without the threat of enforcement) to comply with directions. And since the directions are stayed, the time limits do not run (once the stay expires, time starts to run from the point at which the stay came into force e.g. if 2 weeks out a 4 week period had run before the stay came into force, the remaining 2 weeks runs from when the stay expires). It is difficult to see how the other side could criticise non-compliance during the stay period once the stay expires and it becomes possible to apply to the court. During argument the Court of Appeal suggested that the timetable could be shortened by further directions given after the PD51Z stay expires, in order to get matters back onto the original timetable; such an application would surely face an uphill struggle.
The rigour of the stay is also affirmed by the Court of Appeal: it is not possible to have a telephone listing appointment to obtain a trial date in a multi-track claim. It is not even possible for a Judge of his own motion to make provisions for rejigging the directions timetable and moving the listing appointment to take account of the stay (see §53 and §54 of the judgment)
The circumscription of the exercise of the Court’s power to lift a stay will disappoint litigants who had hoped for some flexibility – particularly given that the PD51Z stay could conceivably be extended beyond the current expiry date if, as seems likely, the CV19 crisis is far from over and the court system remains underfunded and under pressure. Arkin was a residential claim, but PD51Z of course stays all possessions including commercial landlord and tenant claims. Commercial landlords with claims which are not rent-arrears based may reconsider whether the self-help remedy of peaceable re-entry is now their only realistic option, given that the possession lists will inevitably be clogged with cases adjourned over from the stay period once PD51Z is lifted – if it is not extended.
The Court of Appeal suggested at §45 that interested persons who find the stay to be operating unfairly in a particular class of case could write to the Master of the Rolls asking him to make further amendments to PD51Z. This is in fact what the Property Bar Association and Property Litigation association have done, as the judgment acknowledges. Other parties and interest groups may well be emboldened to do so. But is this the right course for the law, rather than having it develop through the experience of applications to lift the stay? And there are myriad potential reasons why PD51Z would operate harshly in particular cases and where the objectives behind the stay would not be endangered by lifting it; but the possibility of writing a letter directly to the Master of the Rolls seeking amendment of PD51Z is not what §45 is suggesting and is clearly not a course open to an individual litigant.