Coronavirus (COVID-19)—stay on possession claims is not ultra vires and can rarely be lifted (Arkin v Marshall; Marshall v Marshall)

Coronavirus (COVID-19)—stay on possession claims is not ultra vires and can rarely be lifted (Arkin v Marshall; Marshall v Marshall)

Arkin (as fixed charge receiver of Lodge Farm) v Marshall; Marshall (acting by Mehmet Arkin as fixed charge receiver of The Cottage and the Barn) v Marshall and another; (Lord Chancellor as Interested Party and Housing Law Practitioners Association intervening in both cases) [2020] EWCA Civ 620

What are the practical implications of this case?

It is almost impossible to apply to lift the 90-day stay to allow a possession claim to proceed, unless it is truly an exceptional application in the interests of the administration of justice and public health. Any such application, which is not of that type, will inevitably fail and attract an adverse costs order possibly on the indemnity basis and potentially a finding of totally without merit. The amendment to CPR PD 51Z, para 2A(c) allows a claimant in a possession claim to bring an application for agreed case management directions, which a court can embody in an order, during the stay, but the agreed directions are stayed. The parties can still carry out the agreed directions, such as disclosure, witness statements and expert evidence so long as the court is not involved during the stay. The court cannot list a telephone listing appointment during the stay. The agreed case management directions cannot be enforced during the stay, but a party refusing to carry out agreed case management directions during the stay could face adverse consequences when the stay expires on 25 June 2020, although the stay may be extended. It is possible that other exceptions may be made to CPR PD 51Z during the stay, particularly if it is extended, where the administration of justice can be performed without endangering public health during the lifting of lockdown measures.

What was the background?

There were two claims for possession of a family home occupied by Mr and Mrs Marshall and a nearby cottage occupied by their adult son. The claim against Mr and Mrs Marshall was brought by a fixed charge receiver appointed by a bridging loan company and acting as agent of Mr Marshall, the borrower. The action against Mr Marshall’s son was brought by the fixed charge receiver in Mr Marshall’s name. The two claims were defended and a costs and case management conference was listed for 26 March 2020. The CCMC was cancelled at the last minute, but a judge made orders in both claims for directions that had been agreed. On 27 March 2020, CPR PD 51Z came into force and there was a dispute as to whether the two claims were stayed and, if they were, whether the stay should be lifted. The judge who had ordered directions decided that both claims were stayed and he had no power to lift the stay. The claimant was granted permission to appeal by the High Court, which transferred the appeals to the Court of Appeal. On the appeal, the claimants argued that CPR PD 51Z was ultra vires because it was not a pilot scheme and impeded access to justice.

What did the court decide?

The vires challenge to CPR PD 51Z should proceed despite it not having been raised before the court below and despite the proper route being by way of judicial review. This was because of the strong public interest in an early and authoritative ruling as to the validity of CPR PD 51Z, the lack of prejudice and the fact that the Lord Chancellor had been joined as a party to the appeal.

CPR PD 51Z was a pilot scheme within CPR 51.2 to assess future modifications to the rules and Practice Directions of the CPR that may be necessary during the coronavirus pandemic that might last months or years.

CPR PD 51Z did not conflict with the provisions of the Coronavirus Act 2020 which affected the substantive law, imposing longer and new requirements for landlords’ notices to tenants.

The short delay of 90 days to possession proceedings was justified by the exceptional circumstances of the coronavirus pandemic, did not breach article 6 of the European Convention on Human Rights or the fundamental right of access to justice and was authorised by Parliament through CPR 51.2 by the Constitutional Reform Act 2005 and the Civil Procedure Act 1997.

CPR PD 51Z, para 2A(c) allows parties to apply during the 90-day stay for agreed case management directions to be embodied in an order, but the directions are stayed.

A judge has power to lift the stay. The only circumstances justifying the lifting of the stay would be the most exceptional circumstances where the stay would operate to defeat the purposes of CPR PD 51Z and endanger public health. Applications to lift the stay based on normal case management considerations are bound to fail.

The judge was right not to lift the stay in these two cases on the grounds advanced that: (i) agreed directions had been made the day before the stay came into effect, and (ii) CPR PD 51Z was amended to allow parties to apply for agreed case management directions to be made during the stay.

The parties can comply with agreed case management directions during the stay, but those directions cannot be enforced during the stay. Any failure to comply with agreed directions may count against that party after the stay has expired when the court is making revised directions.

Case details

  • Court: Court of Appeal, Civil Division

  • Judges: Sir Geoffrey Vos C, Lord Justice Underhill V-P and Lady Justice Simler

  • 11 May 2020

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