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Property Litigation: To Stay Or Not To Stay

In an effort to combat the coronavirus, all possession proceedings brought in England and Wales were stayed for a period of 90 days from 27th of March 2020.

This rule was imposed by a Practice Direction in the Civil Procedure Rules (the procedural rules which govern civil cases) made by the Master of the Rolls (the Head of Civil Justice) known as a Practice Direction 51Z (the Practice Direction).

Arkin v Marshall

In the recent case of Arkin v Marshall, the Practice Direction was challenged. In that case, a fixed charge receiver had brought possession proceedings and those proceedings were stayed as a consequence of the Practice Direction.

The receiver contested the Practice Direction on a number of grounds including whether the Master of the Rolls exceeded his authority or legal powers in introducing the Practice Direction, known as acting “ultra vires” in legal terms, and whether judges had jurisdiction to lift the stay imposed by the Practice Direction.

At first instance, the judge held that he had no power or discretion to lift the stay. The receiver therefore appealed.

The Court of Appeal found that the Practice Direction was “vires” (i.e. lawful) and not inconsistent with the Coronavirus Act 2020, nor was it incompatible with the European Convention on Human Rights and the fundamental principle of access to justice.

In considering the appeal, the Court of Appeal concluded that the purpose of the Practice Direction was to relieve pressures on the administration of justice and to reduce the risk of spreading the virus by the enforcement of possession orders and for the requirement of parties to attend court.

The Court of Appeal also stated that although the courts retained the power to lift the stay, it could not see a circumstance in which it would be proper to lift a stay imposed under the Practice Direction unless there were exceptional circumstances, which would be highly unlikely in most cases.

Going forward

This decision effectively puts on hold all cases subject to this stay and is is likely to prove frustrating to Claimant landowners and mortgagees seeking to recover possession of property. However, we are living in unprecedented times and unprecedented decisions have to be taken.

If you’re involved in or require advice in relation to any property litigation matter, or you or your business have any legal issues due to Covid-19, then our specialist teams can assist. Please email or call Luke Patel today on 0113 227 9316.


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Luke Patel

Partner and Head of Dispute Resolution
Commercial Dispute Resolution
0113 227 9316
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Luke Patel Blacks Solicitors LLP