2 June 2020
Disputes Quick Read – 49 of 62 Insights
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.
In this series
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
by Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
by Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
by Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
by Multiple authors
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
by Multiple authors
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
by Multiple authors
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
by Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
by Multiple authors
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
by Nick Storrs
Disputes Quick Read: The latest on Unexplained Wealth Orders
7 May 2020
by Multiple authors
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
by Multiple authors
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
by Multiple authors
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
Disputes Quick Read: A different approach to witness evidence
11 March 2020
by James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
by Stuart Broom
Disputes Quick Read: Embracing remote hearings – the experience to date
26 March 2020
by Multiple authors
Disputes quick read: climate change activism by litigation
26 February 2020
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
by Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
by Multiple authors
Related Insights
Disputes Quick Read: Dealing in crypto? Be careful what you call it
by multiple authors
Cryptoasset fraud: Squid coin rug-pull and tracing cryptoassets
by multiple authors
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
by Nick Storrs and Georgina Jones