Appeal of Practice Direction 51Z Fails

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01 June, 2020

As you all know by now the provisions of the Coronavirus Act 2020 came into force on 26 March 2020. Since this time all possession proceedings, and all proceedings seeking to enforce an order for possession have been stayed for 90 days with any new Notices of Seeking Possession and Section 21 Notices being amended to 3 month Notices, regardless of grounds. New possession claims can still be issued however they will automatically be stayed until the end of the moratorium period, presently 25 June 2020. The Practice Direction is to cease to have effect from 30 October 2020, unless extended.

I did confirm, however, that there was an appeal pending in the case of Arkin v Marshall, [2020] EWCA Civ 620 which involved two claims for possession, to consider whether the automatic 90 day stay of proceedings is unlawful (ultra vires), whether the stay applies to the requirement to comply with case management directions in all cases and whether the stay should be lifted in individual cases.

The Court of Appeal handed judgment down on 11 May 2020 and unsurprisingly dismissed the appeal, finding that it was not ultra vires or contrary to the Coronavirus Act 2020 or incompatible with Article 6 of the European Convention on Human Rights.

The court also confirmed that the stay related to agreed directions but confirmed that this did not prevent the parties from complying with them and failure to comply might be relevant to future directions.

The court of appeal concluded that it was still theoretically possible for the stay to be lifted in exceptional cases but accepted it was difficult to envisage such a case given that PD51Z has imposed a blanket stay designed to alleviate the burden on the justice system and didn't make allowances for cases where the stay might effect one party more harshly than the other.

In most cases the courts have sent orders confirming the stay of ongoing possession actions and subsequently, any directions. However, if no order has been received it is important to agree with the opposing party whether the directions, in place before the moratorium period was imposed, should still be complied with. In most cases it will preferable, if not necessary, to delay compliance given that, in possession proceedings, a lot can change in three months.

I would be surprised if we see any further challenges to PD51Z before the end of the moratorium period but you never know….

For those that want to know more the full judgment can be found here: https://www.judiciary.uk/wp-content/uploads/2020/05/Arkin.APPROVEDjudgment-of-the-court.pdf

For more information contact Sarah Rogers in our Housing & Regeneration department via email or phone on 01772 220161. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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