Arkin v Marshall

A temporary blanket stay of possession proceedings imposed through a pilot practice direction may be valid where it permits assessment of procedural responses to a public-health emergency. A short stay justified by exceptional pandemic conditions is compatible with access to justice.

The court retains strict jurisdiction under its general case-management powers to lift such a stay. The power should, however, be exercised only in the most exceptional circumstances, particularly where maintaining the stay would defeat its own public-health purpose. Ordinary case-management considerations cannot justify lifting it. Parties may obtain agreed directions and perform agreed steps voluntarily, but cannot enforce them during the stay.

A fixed charge receiver brought two contested possession claims under Part 55 of the Civil Procedure Rules 1998. After the parties agreed case-management directions, Practice Direction 51Z imposed a 90-day stay on possession proceedings in response to the Covid-19 pandemic.

HHJ Parfitt held that the claims were stayed, that he could not lift the stay, and that the procedural timetable should be postponed. Kerr J granted permission to appeal and transferred the appeal to the Court of Appeal.

The issues were whether the Practice Direction was validly made as a pilot scheme; whether it conflicted with the Coronavirus Act 2020, article 6 or access to justice; how its exception for agreed directions operated; and whether the court could lift the stay.

1. Appeal dismissed, subject to variation of the order. The Court of Appeal entertained the collateral challenge to the validity of Practice Direction 51Z. Although judicial review would normally have been the appropriate procedure, the unusual circumstances caused no real unfairness and there was a strong public interest in an early authoritative ruling.

2. Practice Direction 51Z was validly authorised by rule 51.2 of the Civil Procedure Rules 1998. Its stated purpose demonstrated a genuine pilot: the stay permitted assessment of procedural modifications needed during the pandemic and of measures protecting public health. Experience from the stay could inform later rules for further pandemic peaks or other emergencies.

3. The Practice Direction did not conflict with the Coronavirus Act 2020. The Act altered substantive notice requirements, while the Practice Direction imposed a temporary procedural stay to protect court capacity and public health. The 90-day delay was amply justified by the exceptional pandemic circumstances and created no real risk that litigants would effectively be denied access to justice. It was therefore compatible with article 6 and the common-law principle of access to justice.

4. The exception in paragraph 2A(c) permitted parties to apply for agreed case-management directions to be embodied in an order. It did not lift the stay in relation to those directions. Parties could perform agreed steps voluntarily, including during the stay, but could not apply to enforce compliance while the stay remained operative.

5. The Practice Direction did not formally exclude the court’s general case-management powers. A judge therefore retained strict jurisdiction to lift the stay. Its blanket character and public purposes nevertheless meant that ordinary case-management considerations could never suffice. Lifting would almost always be wrong in principle and could be justified only in the most exceptional circumstances, particularly where the stay itself would defeat the expressed purposes of the Practice Direction.

6. The agreed directions and concern about delaying trial did not meet that standard. Paragraph 4 of HHJ Parfitt’s order was to be deleted unless the postponed directions could now be agreed and preserved under paragraph 2A(c).

1. Court of Appeal (Civil Division): By [2020] EWCA Civ 620, dismissed the appeal, save that paragraph 4 of HHJ Parfitt’s order was to be deleted insofar as the postponed directions could not be agreed.

2. County Court at Central London: HHJ Parfitt held on 15 April 2020 that the possession proceedings were stayed by Practice Direction 51Z and that the stay could not be lifted. He postponed the agreed procedural directions until after the stay.