PD 51Z Survives the Court of Appeal – Arkin v Marshall Case Commentary

12th May 2020 Commercial Litigation

Judgment was handed down remotely today by HH Judge Parfitt (mainly) in favour of the Respondent in respect of two appeals which sought to challenge the effect of PD 51Z. This is an important decision which offers some clarity to the current legal framework regarding possession claims, although it leaves the door ajar for extreme cases.

The Court of Appeal gave consideration to several issues.

Firstly, it examined whether the suggestion that PD 51Z was unlawful should even be considered, as it had not been done by way of a judicial review and was a point not raised in lower courts at all. This was allowed for several reasons:

  • the procedural irregularity had ‘not produced any real unfairness nor created any insuperable difficulty’ for the Court of Appeal;
  • the Lord Chancellor was now involved as an Interested Party; and
  • there was ‘a strong public interest in an early and authoritative ruling as to the validity of PD 51Z.

Emphasis was given though to the point that this is not a departure from established case-law on this issue, and this decision was made on the basis of the unusual circumstances of this particular case.

The second issue considered by the Court of Appeal was whether PD 51Z was truly a ‘pilot scheme’ which was allowed to be created under the relevant power in CPR 51.2. This was found to be clear from Paragraph 1 of PD 51Z, which states 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’. This appears to correspond with CPR 51.2, which provides that:

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

(a)  or specified periods; and

(b)  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 Court of Appeal also gave consideration to the Appellant’s argument that PD 51Z could not be a pilot scheme because it restricts access to justice and encroaches on the court’s general case management powers. The Court of Appeal was not persuaded by these arguments. No breach of Article 6 of the European Convention on Human Rights was found as PD 51Z merely delays possession litigation and for justified reasons, i.e. ‘the exceptional circumstances of the coronavirus pandemic’. The case management argument, which constituted issue number three, was not actually pursued due to the further amendment that has been made to PD 51Z, where Paragraph 2A(c) now provides that Paragraph 2 of PD 51Z does not apply to applications for agreed case management directions.

The court’s jurisdiction to lift the stay imposed by PD 51Z was examined next. The Court of Appeal, clarified that the court’s theoretical power remains, albeit only for use in the most exceptional circumstances. Particular emphasis was placed on the very high threshold of exceptionality needed for such action to be taken by the court where to do so could ‘defeat the expressed purposes of PD 51Z itself’.

Lastly, the Court of Appeal considered the validity of directions agreed between the parties before PD 51Z came into force, and then postponed until after the expiry of the stay by a court order made after PD 51Z had come into effect, but before the amendment allowing applications in respect of agreed directions had been made. Procedurally, this was made in error by the judge at the time, but could now stand to the extent of agreement of directions between the parties, pursuant to paragraph 2A(c) of PD 51Z.

Accordingly, the appeal was dismissed, save for the provision for the parties to agree directions.

It is worth noting that the Court of Appeal pointed out a difference between making an application in respect of agreed directions during the stay and making an application in respect of a party’s failure to comply with agreed directions. The former is allowed under PD 51Z, while the latter is not. Any steps resulting from a party’s failure to comply with agreed directions will need to wait until after the stay imposed by PD 51Z is lifted.

Conclusion

Overall, it is helpful that the above decision was delivered to clarify the current framework to some degree. It is probably unlikely that a case will meet the required standard of exceptionality to the extent that the stay imposed by PD 51Z will be lifted by the court.

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Neli Borisova is a Solicitor located in Londonin our Commercial Litigation department

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