What Does the Stay Imposed by PD51Z Really Mean?
Most people will now be familiar with the temporary stay that has been imposed on possession proceedings as a result of Practice Direction 51Z ("PD 51Z") and whilst it remains clear that possession orders will neither be granted or enforced during this period of stay there was some uncertainty as to whether the stay also applied to Case Management Directions ("Directions") of possession claims that had been commenced prior to the stay.
This, amongst other issues, was considered by the Court of Appeal ("CofA") in the case of Arkin -v- Marshall [2020] EWCA Civ 620 and the CofA's judgment was handed down on 11th May 2020. Not only did the decision confirm that PD 51Z was vires (lawful) it also confirmed the approach to directions parties should take during this current period of stay.
The CofA held that if parties are capable of adhering to Directions during this period of stay then they should continue to do so. However if it is not possible for the parties to comply with the current Directions then there is no reason why parties cannot to agree amended Directions on a voluntary basis. The amended wording of PD 51Z means that if parties are able to agree amendments to Directions during the stay period then the Court can embody the agreed terms into a Court Order, and to do so would not amount to a lift of the stay of proceedings. In turn it is anticipated that this will then prevent the rush of applications being submitted once the stay is over from parties seeking the Court's approval on amended Directions.
Strictly speaking where a party does not comply with Directions they will be in breach of them, however the CofA have confirmed that a party cannot make an application for an Order requiring the other party to comply with Directions during this period of stay.
In summary the message from the CofA appears to be that parties should continue to comply with Directions wherever possible in possession matters notwithstanding the stay imposed by PD 51Z. It if it is not possible for parties to comply with the current Directions they should seek to agree amended Directions with their counterparts. If an agreement can be reached with the other party they can seekthe Court's approval of these amended Directions before the stay is over as to do so would not constitute a lifting of the stay.
If you have any queries in relation to possession matters (both commercial and residential) please contact Lauren Smith on 01922 707048.
