Arkin v Marshall – The effect of Practice Direction 51Z on possession proceedings

On 26 March 2020 Practice Direction 51Z (PD 51Z) came into force in response to the Coronavirus Pandemic (Covid-19). The effect of PD 51Z was to place a stay on all existing and newly issued possession claims until 25 June 2020. This has clearly had a big impact on Landlords and Mortgagees who are seeking to recover properties from tenants and mortgagors who are in breach of their tenancies/mortgages.

The case of Arkin v Marshall [2020] EWCA Civ 620 was the subject of a leapfrog appeal and heard in the Court of Appeal earlier this month. The appeal was required to provide some clarity on the legality of the stay and how possession claims should proceed during the stay when case management directions are in place.

The case dealt with a number of issues but this particular article will look at the following points: –

• Can a stay be lifted by a Judge?
• Can case management directions proceed during the stay?

Can a stay be lifted by a Judge?

In the first instance, the Court of Appeal decided that PD 51Z was lawful. As to whether a Judge can lift the stay in a particular case, it was held this option was available to the Court, however, the stay should only be lifted in exceptional circumstances. The Court did not elaborate on what it would consider to be exceptional circumstances but it would be apparent the opportunity for a Court to exercise its discretion would be extremely rare. One exceptional circumstance might be a situation where a property has been abandoned for a significant period of time and a lack of action creates a risk that events may occur which go against current public health policy i.e. a large congregation of trespassers. However, the very nature of this type of event is likely to be extremely rare.

The justification for this almost blanket stay is to protect public health. Possession claims take up a large quantity of Court work and continuing this work would create a large interaction of different people putting the safety of the public and Court workers at great risk. The Courts have made significant steps to adapt to remote working but the general consensus is that the vast majority of possession claims would be unsuitable for remote hearings. Ultimately, the safety of the public is the understandable driving force behind the decision.

Can Case Management Directions Proceed During the Stay?

The vast majority of possession claims are straightforward and require very little case management. The stay imposed by PD 51Z in these circumstances will stop all claims in their tracks. But what implication does PD 51Z have on those more complex cases that require directions from the Court, can they still proceed?

The Court held that if the parties are capable of adhering to the Court imposed directions they should continue to do so. However, with the limits on movement and interacting with clients some directions will be more difficult to comply with than others. In these circumstances, the Court saw no reason as to why the parties could not seek to agree directions during the stay and any post stay directions. The difficulty parties are going to experience is that these agreed directions are not enforceable during the period of the stay. The Court can, of course, take into consideration the conduct of the parties during the stay in deciding case management directions moving forward and potential sanctions.

Therefore, the Court is quite happy for directions to continue during the stay as these directions will generally not add risk to public health or the administration of justice. The Court has left it to the parties to agree these matters between them but in cases where parties are uncooperative there is very little, if anything at all, a party can do to enforce directions whilst the stay is in place.

Comment

The decision in Arkin v Marshall has made it very clear that the stay imposed under PD 51Z is vital for public health and the administration of justice generally, which is why in all but very exceptional circumstances it is being applied to all possession claims. In addition, whilst the Court is happy for case management directions to continue during the stay it is likely that compliance with directions will be few and far between either because parties are uncooperative or the restrictions of movement make them difficult to comply with.

The Court in Arkin v Marshall also indicated the pandemic would continue to cause sufficient strain on the Court system beyond the expiry of the stay on 25 June 2020. Therefore, PD 51Z may be here for longer than the current three months, that is not say the stay will remain in its entirety. However, a return to normality for possession claims is unlikely to happen overnight.


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