CHALLENGES TO THE VALIDITY OF PRACTICE DIRECTION MADE AS A RESPONSE TO CORONAVIRUS: THIS IS A PILOT SCHEME

In Arkin -v- Marshall [2020] EWCA Civ 620 the Court of Appeal rejected an argument that  Practice Direction 51Z  was ultra vires. The Practice Direction which provides for a stay of possession proceedings during the coronavirus crisis was held to be valid.

 

THE CHALLENGE TO THE VALIDITY OF THE PRACTICE DIRECTION

The basis of the challenge was that the rules only allow Practice Directions to disapply or modify the rules for the purpose of “pilot schemes”. The Court of Appeal rejected the argument that PD 51Z was not a pilot.

19. In opening his case on the vires of PD 51Z, Mr Rainey said that the question was whether there was the power to make it under CPR Part 51.2. That, he said, was “the beginning and the end of it”.
20. CPR Part 51.2 provides as follows
“Practice directions may modify or disapply any provision of these
rules –
(a) for specified periods; and
(b) in relation to proceedings in specified courts,
during the operation of pilot schemes for assessing the use of new practices and procedures in connection with proceedings”.
21. The fundamental question, therefore, is whether there is any scheme or any “new practices and procedures” for which PD 51Z can properly be said to facilitate assessment. The Appellant submits that there is no such scheme and that PD 51Z is not properly to be regarded as a pilot at all. The Respondents and the Lord Chancellor submit that PD 51Z is a pilot for future practices and procedures that may be
introduced to deal with the continuing problems caused by Covid-19 or other pandemics or in other emergencies. They submit that the Master of the Rolls may well wish, on the basis of experience gained as a result of PD 51Z, to make a permanent rule providing for similar stays, or other measures, to be imposed in future crises.
22. In our judgment, the starting point for the analysis is paragraph 1 of PD 51Z itself, which provides that it “is intended to assess modifications to the rules and [PDs] thatmay be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health”.
23. We have received no other evidence about the purpose of PD 51Z. In those circumstances, we accord due weight to what the Master of the Rolls has said on its face that PD 51Z is intended to achieve. It is first said to be intended to assess modifications to the rules and PDs that may be necessary during the Coronavirus pandemic. It was not suggested that the pandemic was likely to have concluded by 25
June 2020, which is the last day of the 90-day period of stay imposed by paragraph 2. In those circumstances, it may reasonably be assumed that the intention was to assess  future modifications that might need to be made to the CPR during an epidemic that might last months or even years.
24. Secondly, PD 51Z states on its face that it is intended to assess the need to ensure that the administration of justice, including the enforcement of orders, is carried out so asnot to endanger public health. The meaning of that language is plain. A stay of possession proceedings is being trialled in order to assess whether it is effective to ensure that the administration of justice, specifically the ongoing conduct of possession proceedings in a pandemic, and the enforcement of possession orders in a pandemic, does not endanger public health.
25. Before one comes to consider the nature of the stay that has been imposed, we take the clear view that the pilot nature of PD 51Z is plain from its first paragraph. We can see no reason why it is not reasonable to envisage that the stay imposed by paragraph 2 may be shown to be effective: (a) to relieve pressures on the administration of justice during the pandemic, (b) to reduce the risks of spreading the virus occasioned by enforcing possession orders and thereby forcing citizens to move home rather than stay at home as the Government has advised, and/or (c) to abrogate court hearings, whether remotely or face to face, in possession proceedings, thereby avoiding the need for court staff and litigating parties to risk transmission of the virus. Once that has been assessed, we cannot see why it may not be appropriate for the Master of the Rolls to consider putting in place a permanent rule or PD that imposes a limited stay on possession proceedings when and if the pandemic peaks again.
26. The Appellant submitted that PD 51Z could not be a pilot because, amongst other things, it restricts access to justice and excludes the courts’ management powers. We think these points are better dealt with as discrete issues below. But we can say at once that the submission is a non sequitur. The pilot may be objectionable on the grounds contended for. But those grounds do not impact on whether or not it is
properly to be regarded as a pilot. For the reasons we have given, we think it is.

PRACTICE DIRECTION 51ZA

We can be comforted that PD 51ZA which allows the parties to agree extensions of time for 56 days states:

“This practice direction is made under rule 51.2 of the Civil Procedure Rules (“CPR”). It is intended to assess modifications to the rules and Practice Directions that may be necessary as a temporary measure during the Coronavirus pandemic to ensure that the administration of justice is carried out so as not to endanger public health.”

We can, therefore, assume that it is covered by identical principles to Arkin and is not ultra-vires.