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Court of Appeal rejects challenge over lawfulness of PD51Z staying possession proceedings: report

The Court of Appeal has upheld the lawfulness of Practice Direction 51Z, the Housing Law Practitioners Association (HLPA) has reported.

The HLPA, which intervened in the case of Arkin v Marshall, said the outcome meant that PD51Z applies throughout possession proceedings and in all but the most exceptional cases should not be lifted.

“The court found it hard to envisage examples of when a matter will be ‘exceptional’ for the purposes of lifting the stay,” the HLPA said.

PD51Z was introduced by the Master of the Rolls on 26 March 2020 and was amended on 20 April 2020. Its purpose is to stay all possession proceedings brought under CPR part 55 and to stay all residential eviction action (whether or not commenced by part 55) until 25 June 2020 with an option to extend that period.

The appeal was brought by a fixed charge receiver in private mortgage possession proceedings.

According to the HLPA, Sir Geoffrey Vos, Chancellor of the High Court said the Court of Appeal had had little difficulty in finding that PD51Z was lawful on its own terms and not inconsistent with the Coronavirus Act 2020. Article 6 of ECHR was of no assistance to the appellant.

Likewise it was found that the practice direction applied throughout the duration of a part 55 case. Part 55 cases which have been allocated to track, even if it is the multi-track, are not excluded.

Lord Justice Vos said PD51Z was subject to CPR 3.1 of the Senior Courts Act 1981.  However, he added: “It would be fatally undermined if parties affected by the stay were entitled to rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case.

“Thus, while we would not go so far as to say that there could be no circumstances in which it would be proper for a judge to order that the stay imposed by PD 51Z should be lifted in a particular case, we have great difficulty in envisaging such a case.”

He added: “The approach of a blanket stay reflects the balance struck by the Master of the Rolls, and makes clear that possession claims are not to be dealt with on a normal case by case basis during the stay. We would strongly deprecate parties troubling the court with applications that are based only on such reasons and which are in truth bound to fail.

“We do not, however, rule out that there might be the most exceptional circumstances in which such a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD 51Z itself.”

Describing the judgment as “clear and unequivocal”, the HLPA said the appellant in this case had strong arguments to suggest that the Respondents would not have particular difficulty in complying with directions but the Court of Appeal nevertheless found that the judge was correct not to lift the stay.

The Association added: “Our members provided vital evidence of the difficulty we and our clients would have faced in meeting not only case management directions but also the many applications for the stay to be lifted that may have followed, absent the clear judgment of the Court of Appeal. We therefore welcome the fact that following this judgment our clients and our members can be confident that we retain the proper protection of PD51Z and applications to lift the stay, based on the individual facts of the case, are unlikely to succeed.”

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