Court of Appeal Finds That The Stay On Possession Proceedings Due To Covid-19 Is Lawful

On 11 May 2020, the Court of Appeal gave judgment in the appeal of Arkin v Marshall [2020] EWCA Civ 620, which was concerned with whether or not the stay on possession proceedings due to last until 25 June 2020 is lawful.

The Court of Appeal held that Practice Direction 51Z is a pilot, is lawful and is compatible with article 6 of the European Convention on Human Rights. The Court of Appeal also considered whether a court has the power to lift the stay and said that “although as a matter of strict jurisdiction a judge retains a theoretical power to lift any stay, it would almost always be wrong in principle to use it. We do not, however, rule out that there might be the most exceptional circumstances in which a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD 51Z itself.”

The Court of Appeal also provided some helpful clarification on the effect of the stay on directions in possession claims. It explained that the provision in the Practice Direction that disapplies the stay for “an application for case management directions which are agreed by all the parties” (paragraph 2A(c)) is for the purpose of applying to the court to have agreed directions embodied in a court order “and nothing more”. This will allow parties to agree dates that post date the end of the stay thereby ensuring that the case is not delayed for a directions hearing or for directions to be agreed after the stay expires. The parties may also agree to take certain steps, such as voluntary disclosure during the stay, but the court cannot require them to do so. Furthermore, a party cannot apply to enforce compliance with agreed directions during the stay, but will be able to rely on any failure to do what was agreed once the stay is lifted and the court is looking at making any revised directions.