Housing cases during the Covid-19 crisis – part 3 (updated)

11 May 2020

Following on from our previous bulletins on this subject (see part 1 and part 2), a very important case was heard in the Court of Appeal last week, namely Arkin v Marshall. The Housing Law Practitioners Association was granted permission to intervene, which it did in writing.

In issue was whether CPR PD 51Z is ultra vires and what its effect is – does it apply to cases allocated to the multi track and can the stay be lifted if appropriate so that directions can be complied with?

The judgment was handed down this afternoon (11 May 2020). As well as endorsing PD 51Z, it provided clarity to lawyers as to what can and cannot be done during a stay generally. This depends on whether the directions are agreed.

The facts are not all that important. But in short form, the case concerned 2 claims for possession of residential property. HHJ Parfitt made an order for directions on 27 March 2020 (the day PD 51Z came into force). The disclosure and witness statement stages were to be completed in May and June 2020, with a trial some time in the winter.

The respondents took the view that, as a result of PD 51Z, they were not required to undertake those steps during the 90 day period and indeed that the listing appointment was not to take place. The appellant contended the stay did not apply to the case, and if it did, it should be lifted.

HHJ Parfitt decided that the case was stayed and he had no power to lift it. He pushed back the directions until after 30 June. The appellant argued he was wrong and additionally that PD 51Z was ultra vires (a ground not raised at first instance).

The important points to note from the Court of Appeal’s judgment are:

Agreed directions during a stay

Where parties have agreed directions, then they are capable of complying with directions during a period of stay.

The stay does not mean a “halt” to proceedings contrary to the judgment of Coulson LJ in David Grant v Dawn Meats UK [2018] EWCA Civ 2212, [8]. The parties are entitled to undertake any steps they have agreed.

The stay does mean that those directions cannot be enforced (eg by application for an unless order) until after the stay has elapsed.

As a result of the amendment to PD51Z (paragraph 2A(c)), paragraph 2 does not apply to an application for agreed case management directions.

This means that during the 90 day stay period, the parties can agree directions and apply for those directions to be embodied in a court order.

Those directions are to be steps that take place after the 90 day stay period has ended – but at least the parties have the timetable set down well before that time.

Further, the court thought that the parties could agree directions for steps to be taken during the stay period, but not to be enforced until after the stay period.

The court’s powers

The court retains the power to lift the stay, contrary to HHJ Parfitt’s decision.

However, it would “almost always be wrong in principle to use it”.

HHJ Parfitt was wrong to vary the directions – he should not have heard any application because of the stay and until after it had expired. He could have made an order based on an application for agreed directions.

The listing appointment was not to take place during the stay.

Ultra vires

The court was prepared in the strange and urgent circumstances of this case to hear the ultra vires argument, rejecting the Respondent argument that it should not because this was a public law challenge and therefore reserved for a claim for judicial review.

However, PD 51Z was properly authorised as a pilot scheme under CPR 51.2 and was not inconsistent with the Coronavirus Act 2020.

Breach of Article 6?

PD 51Z was not incompatible with Article 6 and the principle of Access to Justice.