In a leapfrogged appeal ( EWCA Civ 620, 11 May 2020), the Court of Appeal has delivered judgment on the validity of Practice Direction 51Z (‘PD 51Z’), which was made in response to the Covid-19 pandemic. It will not come as a surprise that the Court has affirmed the stay on possession claims imposed by PD 51Z. The Court’s reasoning is worth considering in more detail, in particular as regards the Court’s conclusions on the ‘pilot’ nature of PD 51Z and access to justice points.
The effect of the Practice Direction, which came into force on 27 March 2020, is to stay all possession proceedings under the Civil Procedure Rules (‘CPR’) Part 55 for a 90-day period until 25 June 2020. In its original version, PD 51Z applied to all possession proceedings (bar proceedings for injunctive relief). Following an amendment on 20 April 2020, PD 51Z now does not apply to claims against trespassers; an application for interim possession orders; and an application for case management directions which are agreed by all the parties. PD 51Z is intended to assess modifications to rules and practice directions during the Covid-19 pandemic, ensuring that the administration of justice is carried out so as not to endanger public health.
The challenge to PD 51Z arose in a mortgage possession claim. Prior to the stay coming into force, the parties had agreed directions, which required them to take various procedural steps in May and June 2020, including exchange of witness statements by 26 June 2020 and a listing appointment. The trial window was between early October 2020 and early January 2021. A court considered the directions on the day PD 51Z came into force. The Defendant contended that the effect of the stay was the parties were not required to proceed with the directions, while the Claimant submitted that the stay did not apply to the proceedings at all, and if it did, the stay should be lifted in the present case. The first-instance judge held that the proceedings were stayed and he had no power to lift the stay. The dates for directions were pushed back until after the stay.
The Claimant appealed on the grounds that (i) PD 51Z was made ultra vires (an argument that had not been advanced before the lower court); (ii) the judge had erred that PD 51Z applied to all possession proceedings under CPR 55; and (iii) the judge was wrong to conclude the court had no power to lift the stay on a case-by-case basis.
The Ultra Vires Issue
The Court held that in the unusual circumstances of the case, it did have jurisdiction to consider the vires challenge, and it was not necessary to bring judicial review proceedings. Turning to the substance of the vires challenge, CPR 51.2 allowed for modification or disapplication of the CPR for specified periods during the operation of pilot schemes “for assessing the use of new practices and procedures in connection with proceedings”. The Court held that PD 51Z was properly to be regarded as a pilot, designed to alleviate the pressure on the administration of justice; reduce the risk of spreading the virus by the enforcement of possession orders; avoid court hearings for health reasons; and to enable consideration of a permanent rule or Practice Direction imposing a limited stay on possession proceedings if public health considerations so required. Further, there was no conflict between the Coronavirus Act 2020 (‘the Act’) which came into force after PD 51Z, and the Practice Direction; the Act did not render PD 51Z unlawful. They made separate and different provisions: the Act changed the substantive law, the Practice Direction imposed a temporary stay. Nor was PD 51Z inconsistent with Article 6 ECHR or the principle of access to justice. The Court stated that the delay to possession proceedings enshrined in PD 51Z was short and amply justified by the exceptional circumstances of the Covid-19 pandemic.
Did the Court Have Jurisdiction to Lift the Stay?
As a matter of strict jurisdiction, a judge retained the power to lift the stay imposed by PD 51Z, but the proper exercise of that power was informed by the nature of the stay and the purposes for which it was imposed. PD 51Z had imposed a blanket stay. The power to lift the stay was a theoretical one, and, whilst there might be most exceptional circumstances in which a stay could be lifted, it would almost always be wrong in principle to use it.
Should the Judge Have Lifted the Stay in the Present Case?
The case did not meet the standard of exceptionality to allow the court to lift the stay. The fact that the parties had agreed directions prior to the stay did not point towards a need to lift the stay. The parties could comply with the directions, but the stay meant that the parties could not enforce compliance with them. It is of note that the first-instance judge had made an order that postponed agreed directions until after the stay. This order had been made prior to the amendment of PD 51Z coming into force on 20 April 2020, which allowed parties to take steps that have been agreed (PD 51Z 2A(c)). The Court held that such an order could not have been made at the time of the first-instance hearing.
This judgment is a robust affirmation of PD 51Z. Whilst the decision may not please those that are eager to have a possession claim determined, the Court emphasised that the purpose of PD 51Z was the protection of public health and to relieve the pressures on the administration of justice during the pandemic. The Court raises the possibility that there may be a permanent rule or practice direction imposing a limited stay on possession proceedings ‘when and if the pandemic peaks again’. Parties are also well advised to bear in mind the provisions of paragraph 2A(c) of PD 51Z. The Court highlighted that it may be beneficial to the parties to agree directions and obtain the court’s endorsement as they would come out of the stay with an established timetable. How such agreed directions during the period of the stay will work out in practice, though, remains to be seen.