Court of Appeal hands down judgment on stay of possession claims during COVID-19 pandemic

The Court of Appeal has today handed down judgment in the case of Arkin v Marshall [2020] EWCA Civ 620.

The judgment holds that (a) the 3-month stay of possession proceedings under Practice Direction 51Z - in light of the current COVID-19 pandemic - is lawful and (b) while there is technically a residual power to lift the stay it would almost always be wrong in principle to do so.

Martin Westgate QC and Daniel Clarke were instructed by Edwards Duthie Shamash Solicitors on behalf of the Housing Law Practitioners’ Association (“HLPA”), who were granted permission to intervene.

HLPA’s intervention, set out extensive evidence from an urgent survey of its members, describing the extreme difficulties that would be faced by many defendants to possession claims in complying with case management directions in the current circumstances, and submitted accordingly that:

  1. Any residual power to lift the stay should only be exercised in exceptional circumstances;

  2. Specifically, that the effect of the delay on landlords could not constitute exceptional circumstances; and

  3. Courts should not be invited, in the absence of agreement between the parties, to undermine the Practice Direction by investigating whether parties are in a position to comply with directions in individual cases;

  4. Although there was nothing to stop parties agreeing reasonable steps to progress or settle cases during the stay where they were able to do so.

The Court rejected the Appellants’ submissions that the Practice Direction was unlawful and went on to find (at paragraphs 42 and 44), consistently with with HLPA’s submissions:

42. …The purpose [of PD 51Z] was that during the 90-day period the burden on judges and staff in the County Court of having to deal with possession proceedings, which are an immense part of its workload, would be lifted, and also that the risk to public health of proceeding with evictions would be avoided.  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. It follows that we do not think that any normal case management reasons could be enough to justify an individual judge lifting the stay imposed by PD 51Z.  The reasons for it make it clear that they go far beyond any individual relationship of landlord and tenant.  The blanket stay has been imposed to protect public health and the administration of justice generally. 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.