During lockdown there have been a number of cases aimed at questioning the validity of Civil Procedure Rules Practice Direction 51Z (“PD 51Z”). In Marshall (Arkin) v Marshall & Another [2020], a challenge considering the lawfulness of the blanket stay was brought. In concluding that PD 51Z was not ultra vires and not unlawful, the Court of Appeal was mindful of the fact that PD 51Z was consistent with the Coronavirus Act 2020, fell within Article 6 of the European Convention on Human Rights (the principle of access to justice), and that other court rules permitted the same type of Practice Direction.
The Appellant’s attempt to identify exceptions to the blanket stay was not given sympathetic treatment by the court, who emphasised that the objective of PD 51Z was to protect public health and ensure that courts were not overwhelmed during the pandemic.
The judgement reiterated that PD 51Z does not just prevent the making and enforcement of a possession order, but means that possession proceedings cannot be progressed by way of directions during the stay.
In London Borough of Hackney v Okoro [2020] the Court of Appeal was asked to determine whether the stay of possession proceedings applies to appeals against a possession order. It was determined that the stay imposed by PD 51Z applies to every stage of possession proceedings brought under CPR Part 55, including any appeal, up to a final judgment in the Court of Appeal.
The judgement referred to the public health decision that was made in Marshall (Arkin) v Marshall & Another [2020] and considered that this objective would be as much furthered by staying appeals as it would first instance proceedings for possession. It also outlined that wording of paragraph 2 of PD 51Z, which details that the stay applies to all proceedings ‘brought under CPR 55’, should be interpreted broadly. In simple terms, the possession proceedings were still ‘brought under CPR 55’, despite CPR 52 governing the appeal procedure.
It is important to note that the decision distinguished appeals made to the Supreme Court, which fell outside the jurisdiction of the Master of the Rolls in making Practice Directions and would not, therefore, be included in the stay.