Emergency legislation and changes to court rules were rushed through in response to the COVID-19 crisis and only now are the consequences coming under detailed judicial scrutiny. In a case on point, the Court of Appeal rejected a challenge to the validity of the controversial stay on possession proceedings.
Before the virus struck, a receiver appointed by the mortgagees of a farm launched proceedings seeking possession of the property. The claim was contested and the proceedings had reached the stage of directions being given and a trial window being set. However, on 27 March 2020, shortly after the lockdown was announced by the government, Practice Direction 51Z (PD51Z) was issued by the Master of the Rolls and included in the Civil Procedure Rules (CPR).
PD51Z had the effect of staying all proceedings for possession for 90 days. After considering written representations, a judge found that the stay on the receiver’s claim was automatic and that he had no power to lift it. Dates previously agreed in respect of disclosure of evidence and other pre-trial matters were pushed back to corresponding dates after the lifting of the stay.
In ruling on the receiver’s appeal against that outcome, the Court noted that PD51Z came out of nowhere, without any prior consultation. It was considered necessary as a means of reducing pressure on the justice system during the pandemic and to avoid the need for face-to-face court hearings. It also reduced the risk of the virus spreading due to people being forced from their properties at a time when government advice was to stay at home.
The Court found that PD51Z was valid, having been properly authorised by Part 51.2 of the CPR, which enables the introduction of temporary pilot schemes in order to assess the utility of proposed new practices and procedures. Arguments that PD51Z was inconsistent with certain provisions of the Coronavirus Act 2020 also failed to convince the Court.
The receiver argued that PD51Z violated his human right, enshrined in Article 6 of the European Convention on Human Rights, to have his claim determined by an impartial and independent tribunal within a reasonable period of time. The Court, however, found that the relatively brief delay in possession litigation was amply justified by the exceptional circumstances of the COVID-19 pandemic.
Although judges retained a theoretical power to lift the stay imposed by PD51Z, the Court found that it would almost always be wrong in principle to exercise it. The power could only be used in the most exceptional cases, particularly if it operated to defeat the purpose of PD51Z to protect public health. Save in one procedural respect, the receiver’s appeal was dismissed.
