The Court of Appeal have handed down judgment in this important case convening Practice Direction 51Z (“PD51Z”) in which HLPA intervened and the Lord Chancellor joined as interested party.
The outcome is that PD51Z is lawful, applies throughout possession proceedings and in all but the most exceptional cases should not be lifted. The court found it hard to envisage examples of when a matter will be ‘exceptional’ for the purposes of lifting the stay.
PD51Z was introduced by the Master of the Rolls on 26.03.2020 and was amended on 20.04.2020. The purpose of PD51Z is to stay all possession proceedings brought under CPR part 55 and to stay all residential eviction action (whether or not commenced by part 55) until 25th June 2020 with an option to extend that period. The appeal was brought by a fixed charge receiver in private mortgage possession proceedings but the key issues of general importance in the appeal were:
(i) did the Master of the Rolls have the power to make PD51Z in the terms of the original and/or the amended practice directions ? The appellant argued that PD51Z was ultra vires.
(ii) if he did was it intended to apply throughout the full duration of a part 55 possession action? The appellant argued that it did not apply once a claim had been allocated to the multi-track.
(iii) was it possible for a judge on the application of one of the parties (other than by agreement between the parties) to lift the stay? The judge in the county court considered not.
HLPA gathered evidence from 50 lawyers throughout the country in 2 short days in order to ensure that HLPA members’ expert view from the ‘coalface’ was before the court.
Judgment of Sir Geoffrey Vos, Chancellor of the High Court
The court had little difficulty in finding that PD51Z was lawful on its own term and not inconsistent with the Coronavirus Act 2020. Article 6 of ECHR was of no assistance to the Appellant.
Likewise it was found that the practice direction applies throughout the duration of a part 55 case. Part 55 case which have been allocated to track, even if it is the multi-track, are not excluded.
It is no surprise that the last of the grounds of appeal engendered the most consideration, mainly around the tension between the general nature of the stay in PD51Z and the case management powers at CPR 3.1 and s.49(3) of the Senior Courts Act 1981. Ultimately this point too was simply decided. PD51Z is subject to CPR 3.1. However the very purpose of PD51Z is the key to understanding in which circumstances a judge could properly lift the stay:
(§ 42) That purpose is of its nature blanket in character and does not allow for distinctions between cases where the stay may operate more or less harshly on (typically) the claimant. It would be fatally undermined if parties affected by the stay were entitled to rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case. Thus, while we would not go so far as to say that there could be no circumstances in which it would be proper for a judge to order that the stay imposed by PD 51Z should be lifted in a particular case, we have great difficulty in envisaging such a case.
(§ 44) 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 normal case by case basis during the stay. We would strongly deprecate parties troubling the court with applications that are based only on such reasons and which are in truth bound to fail.
(§ 46) We do not, however, rule out that there might be the most exceptional circumstances in which such a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD 51Z itself.
HLPA welcomes the judgment which is clear and unequivocal. The Appellant in this case had strong arguments to suggest that the Respondents would not have particular difficulty in complying with directions but the Court of Appeal nevertheless found that the judge was correct not to lift the stay.
Our members provided vital evidence of the difficulty we and our clients would have faced in meeting not only case management directions but also the many applications for the stay to be lifted that may have followed, absent the clear judgment of the Court of Appeal. We therefore welcome the fact that following this judgment our clients and our members can be confident that we retain the proper protection of PD51Z and applications to lift the stay, based on the individual facts of the case, are unlikely to succeed.
The evidence provided by our members is here: Arkin v Marshall HLPA evidence.