Court of Appeal Case Considering Application of Practice Direction 51Z (Arkin v Marshall and Ors)

Further to the series of Practice Notes considering the application of the new provisions in Landlord and Tenant Law, Rebecca Keeves now considers the implication of the Court of Appeal case, Arkin v Marshall [2020] EWCA Civ 620, which considers the consequences and application of the Coronavirus Act 2020 and Practice Direction 51Z to all Part 55 proceedings.

Dramatic changes to the law surrounding proceedings issued under Part 55 of the Civil Procedure Rules (“the CPR”) have been implemented to address the difficulties and risks during this unprecedented time as a result of Covid-19.

The case of Arkin v Marshall (“Arkin”) was subject to a leapfrog appeal under CPR, r52.23 and was heard by the Court of Appeal on 30 April 2020 with judgment handed down 11 May 2020. The facts of the case are not overly concerning but, in summary, this was a matter involving a mortgage and the appointment of a receiver, who issued two sets of proceedings under Part 55 which were then allocated to the multi-track.  The parties agreed directions which were incorporated into an order by HHJ Parfitt on 27 March 2020, being the day the PD 51Z (“the PD”) came into force. The directions required a number of actions to take place, ending with the exchange of witness statements on 26 June 2020 and a trial window was allocated of 5 October 2020 to 08 January 2021.

The original PD 51Z stayed Part 55 proceedings:

2. All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days form the date this Direction comes into force.

The PD was amended from 20 April 2020 by the addition of para 2A, which read as follows:

2A. Paragraph 2 does not apply to –

  • A claim against trespassers to which rule 55.6 applies;
  • An application for an interim possession order under Section III of Part 55, including the making of such an order, the hearing required by rule 55.25(4), and any application made under rule 55.28(1); or
  • An application for case management directions which are agreed by all the parties.

Of note, paragraph 1 stated that the PD was made “… under rule 51.2…”, which became relevant in Arkin.

The Respondent in R took this to mean the dates for directions previously made were no longer relevant and the matter was subject to a stay; the Appellant did not agree that the stay applied but averred that, in the event that it did, it should be lifted. Both parties requested Judge Parfitt to decide the matter on the basis of written submissions and on 15 April 2020 Judge Parfitt gave a judgment in which he held proceedings were stayed by the PD and that he did not have the power to lift the stay. He amended the original directions to take account of the period of the stay.

The grounds of appeal were as follow:

  1. Practice Direction 51Z was made ultra vires.
  2. Alternatively, the learned judge was wrong to find that [PD 51Z] was intended to apply to all proceedings under Part 55, even if they had proceeded past the stage of being allocated to the multi-track and had been given case management directions.
  3. The learned judge was wrong to decide that the court had no power to lift the stay on a case-by-case basis.

This led the Court to consider the following issues:

  • Did the Court have jurisdiction to consider the vires of PD 51Z, and should it do so?
  • If so:
    • 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”?
    • Is PD 51Z inconsistent with or rendered unlawful by the provisions of the Coronavirus Act 2020?
    • Is PD 51Z inconsistent with article 6 of the European Convention on Human Rights or the principle of access to justice?
  • Does PD 51Z apply to cases allocated to the multi-track in which case management directions had been given before it was introduced?
  • Does the court have jurisdiction to lift the stay imposed by paragraph 2 of PD 51Z?
  • If so, should the Judge have lifted the stay in this case?

The Court held that it did have jurisdiction to consider the vires, that the PD was a pilot scheme, that it was not inconsistent with the Coronavirus Act 2020 (“the Act”) or article 6 or the principle of access to justice, that the PD did apply to cases allocated with directions, that the court does have jurisdiction to lift the stay, and that it should not have been lifted in this case. Please find below an analysis of the reasoning behind each of these decisions.

Issue 1: Should the Vires Challenge be Considered?

The Respondent, supported by the Lord Chancellor as an interested party, submitted that this appeal should not permit a challenge to the vires of the PD because it had not been raised in the court below and because any challenge should have been by way of judicial review. By not following the procedure for judicial review, a number of important steps were missed and relevant parties did not have the opportunity to respond or give disclosure.

The Court did not agree with these submissions and held that, in the circumstances of this case, it was possible for the Court to deal with the vires challenge. In reaching this decision, the Court had regard to O’Reilly v Mackman [1983] 2 AC 27and Wandsworth London Borough Council v Winder [1985] AC 461, namely that public law challenges that take place within private proceedings can be dealt with in circumstances where justice and pragmatism make it appropriate.

It was accepted that the ideal situation would have been that the Appellant identified early doors the possible vires challenge but that failure to do so was against the background of PD 51Z being brought in quickly and without notice, and with submissions having to be prepared promptly and in a novel situation. The Court further noted that the issues raised were not exclusively of a public law nature and that there was an overlap between the public law and private law matters.

Whilst the Court held that the proper procedure was probably to stay the county court proceedings so that the vires point could be raised by judicial review, in the circumstances the failure to do so did not cause any real unfairness nor created any insuperable difficulty. The Court was also satisfied as to the inevitability of the granting of any permission application within judicial review process, and therefore the Appellant had not stollen a procedural march.

The Court also had regard to the strong public interest in an early and authoritative ruling as to the validity of PD 51Z and concluded that it could, and should, give a ruling on this point within these proceedings.

Issue 2(a): Was PD 51Z Properly Authorised as a Pilot Scheme?

The PRD is said to have been made pursuant to CPR, r51.2, which states:

Practice directions may modify or disapply any provision of these rules –

  • For specified periods; and
  • In relation to proceedings in specified courts,

during the operation of pilot schemes for assessing the use of new practices and procedures in connection with proceedings.

The question that fell for the Court to decide was whether or not there was a scheme or new practices and procedures that PD 51Z can properly be said to facilitate assessment.

The Lord Chancellor argued that it is a pilot for future practices and procedures that may be introduced to deal with any further issues arising out of the Covid-19 or other similar situations. One may speculate as to whether that was reverse reasoning once the question had been raised; nevertheless, in the absence of any other evidence, and having regard to the PD’s opening paragraph which states, “… is intended to assess modification 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” the Court found that it was a properly authorised as a pilot scheme. It held that the meaning of the language is plain and that a stay of possession proceedings is being trialled to assess its effectiveness in ensuring the administration of justice and protection of public health.

It was noted that that the implications of the PD were to end by 25 June 2020, being before the pandemic would end, and therefore the Court found it was reasonable to conclude that the intention was to assess future modifications that might be needed in respect of the CPR.

Issue 2(b): Is the PD Inconsistent or Rendered Unlawful by the Coronavirus Act 2020?

The point of contention here was sections 81-82 and schedule 29 of the Act and whether or not they were inconsistent with the PD (the Act coming into force after the PD).

The Act imposed the new requirement to serve three months’ notice on statutory tenants and gave landlords the right to apply to the court to dispense with the new notice requirement if the court considered it just and equitable to do so. The submission was that PD 51Z rendered that right nugatory because any subsequent proceedings would be stayed in any event.

The Court found, for a number of reasons, that the Act and the PD were not inconsistent (para 28 of the judgment).

Issue 2(b): Article 6 and the Principle of Access to Justice

The Court considered the case of R (Unison) v Lord Chancellor [2017] UKSC 51, in which it was made clear 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

and further stated 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 … [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 … [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 further considered Al-Rawi v Security Service [2011] UKSC 34 at para 31 of the judgment and noted at para 32 that the European Court of Human Rights takes into account all the circumstances of the case resulting in court delays being viewed as compatible unless they are extreme.

It was held that the short delay enshrined by PD 51Z is sufficiently justified as a result of the circumstances in which we currently find ourselves and reiterated the need, as stated in the PD itself, to protect public health. In addition, the Court concluded that the PD did not prevent access to justice.

Issue 3: Does PD 51Z Apply to Cases Allocated to the Multi-Track in which Case Management Directions had been given before it was Introduced?

This matter was not pursued following the amendment as set out above.

Issue 4: Does the Court have Jurisdiction to Lift the Stay?

The Appellant raised two main points in respect of this ground: Para 2A(c) (see above) was to be construed as meaning that any case management directions agreed by the parties should be carried into effect notwithstanding the stay; and, the court must have a general discretion to lift the stay, taking into account Part 3 powers, that other pilot schemes have been disapplied in particular cases, and that if the parties can agree to disapply the stay then the court must be able to do so.

On the issue of construction, the Court held that if the parties have agreed directions they can apply to have those directions embodied in an order and that that application is the element to which the stay doesn’t apply – not to the directions themselves.  The Court noted that there is a benefit in the parties agreeing, and obtaining an order for, directions to take effect on a date post-dating the end of the stay. The Court further stated that there is no reason that directions cannot have actions to be taken during the stay, such as disclosure, and that the only restriction is that there can be no enforcement of the directions during the stay; the Court noted particularly that the drafters could have said “paragraph 2 does not apply to case management directions agreed by the parties”, but that was not the wording used and therefore the intention was clear.

In respect of Part 3 powers and those contained in Section 49 of the Senior Courts Act 1981, both give the court the power to stay proceedings and it was noted that the power to stay proceedings must necessitate the power to lift it. However, the wide power should not be construed as giving the power to vary rules or practice directions generally.

It was held that PD 51Z could not be read so as to exclude Part 3 but that the proper exercise of that power is informed by the nature of the stay and its purpose and that for the court to lift stays subject to the PD would be to fatally undermine its purpose. The Court did not go as far as to say the power to lift a PD 51Z stay would never be appropriately used, but did state that it was difficult to envisage when such a circumstance would arise.

Of particular note and importance to lawyers, at paragraph 44 it is stated (emphasis added):

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 case by base basis during the stay. We would strong deprecate parties troubling the court with applications that are based only on such reasons and which are in truth bound to fail.

Issue 5: Should the Judge have Lifted the Stay in this Case?

This is more specific to the case and therefore is only dealt with briefly here. The Court held that the Judge Parfitt was justified in refusing the lift the stay, not because he was without the power but because this was not an exceptional case (see Issue 4 above).

It was noted that the stay did not prevent the parties complying with the directions that had already been agreed and ordered, only that any breach could not be enforced. It was accepted that in general parties are not expected to take actions during a stay but emphasised that they were permitted to do so and that the Court’s interpretation of PD 51Z was that the parties would be at liberty to undertake any of the agreed steps if an order has been made pursuant to paragraph 2A(c).

In conclusion, for better or worse, PD 51Z is here to stay and possession proceedings remain subject to the stay (save for the exceptions). It seems advisable for parties to take advantage of paragraph 2A(c) to agree directions and move matters forward as far as possible during the stay. If a party is resistant to doing so for no good reason, the conduct can be brought to the court’s attention when the stay is lifted.

The full case can be found at: