Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?

A number of practice directions have been introduced to temporarily modify the court's procedural rules, the Civil Procedure Rules (CPR), to ensure that the courts can operate as effectively as possible during the coronavirus pandemic. We have been tracking these amendments here.

One such amendment, Practice direction 51Z, Stay of Possession Proceedings – Coronavirus (PD51Z), recently came under challenge for allegedly being implemented without proper legal authority.

PD51Z introduced a 90-day stay on all possession proceedings brought under Part 55 of the CPR and all proceedings for the enforcement of possession orders. Paragraph 2(A) of PD51Z sets out a limited number of exceptions, including applications for case management directions which are agreed by the parties.

The challenge to the validity of PD51Z was made by Mr Arkin (a fixed charge receiver) in possession proceedings Arkin v Marshall [2020] EWCA Civ 620, in which the parties had agreed case management directions prior to the implementation of PD51Z.

Mr Arkin argued that PD51Z was not a "pilot scheme" as required for practice directions implemented under CPR 51.2 to modify existing rules, and that the stay inhibited access to justice in contravention of Article 6 of the ECHR.

In its judgment given on 11 May 2020, the Court of Appeal rejected the challenge in its entirety, because:

• The stay was being trialled as a measure to protect public health by reducing evictions, and to reduce the burden on the court system by delaying applications for possession (approximately 138,000 possession claims are made each year in the county courts). As the stay could lead to a permanent rule, it constituted a "pilot scheme" under CPR51.2.
• Any delay to proceedings would not cause any real risk to access to justice, and was justifiable under the circumstances.
• While judges retain "theoretical" power to lift the stay, the Court of Appeal was strongly of the view that they should only do so in the most exceptional circumstances, such as if the stay posed a risk to public health. This was clearly not such a case.

Where does this leave parties who have agreed case management directions?

The carve-out is limited to the endorsement of agreed directions. Therefore, if the stay applies, parties are not required to carry out the agreed directions during the stay period, but can do so voluntarily. However, any applications to amend the directions order or to remedy compliance issues would have to wait until the stay has expired.

Although the impact of PD51Z itself has not been without controversy, we think this is the right approach. The purpose of practice directions is to enable the CPR to be amended without the need for further legislation, which provides a degree of flexibility to respond to a development – or an entirely unpredictable pandemic – as it arises. The alternative of requiring Parliament to legislate for every procedural amendment to be trialled would be simply unworkable.

Furthermore, the reasoning expressed by the Court of Appeal in Arkin has now been followed and extended in Okoro v London Borough of Hackney [2020] EWCA Civ 681. The judgment in this case confirms that PD51Z also applies to appeals from possession orders that have already been made. In view of the "blanket" character of the stay, this result is perhaps unsurprising.