Introduction

The case of Arkin v. Marshall ([2020] WLR(D) 330) addressed critical issues arising from the implementation of Practice Direction 51Z ("PD 51Z") in response to the Covid-19 pandemic. This direction, issued on 26 March 2020, aimed to temporarily stay possession proceedings to mitigate public health risks and alleviate court burdens during the pandemic. The appellant, appointed as a receiver by mortgagees, initiated possession actions against Gary Marshall and his family concerning adjacent properties secured by a mortgage loan. The core legal disputes centered around the applicability and authority of PD 51Z, challenging its validity and scope within the Civil Procedure Rules (CPR).

Summary of the Judgment

The Court of Appeal upheld the initial ruling that PD 51Z was lawfully enacted under rule 51.2 of the CPR as a pilot scheme to assess modifications necessary during the pandemic. The judges dismissed the appellant's challenges regarding the direction's ultra vires status, its conflict with the Coronavirus Act 2020, and its compatibility with Article 6 of the European Convention on Human Rights. Furthermore, the court maintained that PD 51Z applied to multi-track cases with pre-existing case management directions and that the judiciary retained limited discretion to lift the stay, restricted to exceptional circumstances that align with the direction's fundamental purposes.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to frame the legal context:

• O'Reilly v. Mackman (1983): Established that challenges to the legality of statutory provisions, like PD 51Z, should typically be pursued through judicial review rather than within private law proceedings.
• Wandsworth London Borough Council v. Winder (1985): Clarified circumstances where public law challenges can permeate private law proceedings, emphasizing justice and pragmatism.
• R (Unison) v. Lord Chancellor (2017): Highlighted that delegated legislation may be deemed ultra vires if it impedes access to justice without clear parliamentary authorization.
• Al-Rawi v. Security Service (2011): Emphasized that courts cannot modify their own procedures in ways that infringe on fundamental rights to participate in proceedings.
• Bovale v. Secretary of State for Communities and Local Government (2009): Affirmed that while courts have broad case management powers, they cannot override practice directions systematically.

Legal Reasoning

The court's legal reasoning can be delineated as follows:

• Authority of PD 51Z: The court affirmed that PD 51Z was properly authorized under CPR Part 51.2 as a pilot scheme. The direction was intended to assess the necessity of modifying procedural rules during the pandemic, aligning with the Master of the Rolls' intent to preserve public health and judicial efficiency.
• Consistency with Secondary Legislation: Arguments that PD 51Z conflicted with the Coronavirus Act 2020 were dismissed on the basis that the two provisions addressed different aspects—PD 51Z imposed temporary procedural stays, whereas the Act introduced substantive legal changes.
• Human Rights Considerations: The court concluded that the brief stay of possession proceedings did not infringe upon Article 6 rights, as it did not prevent access to justice but merely delayed specific proceedings to manage public health concerns effectively.
• Applicability to Multi-Track Cases: The amendment to PD 51Z clarified its non-applicability to agreed case management directions, ensuring that pre-existing directions were preserved unless they conflicted with the stay provisions.
• Discretion to Lift the Stay: While the court acknowledged the theoretical power to lift the stay, it underscored that such discretion should be exercised sparingly and only under exceptional circumstances that would undermine the direction's core objectives.

Impact

The judgment reaffirms the judiciary's capacity to implement and uphold procedural directions during extraordinary circumstances like a pandemic. By validating PD 51Z, the court provided clarity on managing possession proceedings amidst public health crises, setting a precedent for temporary procedural adjustments in future emergencies. The ruling also underscores the limited scope of judicial discretion in altering such directions, ensuring consistency and predictability in court proceedings during uncertain times.

Complex Concepts Simplified

Several intricate legal concepts were central to the judgment:

• Ultra Vires: A term meaning "beyond the powers." The appellant argued that PD 51Z exceeded the authority granted by the CPR. The court rejected this, affirming that PD 51Z was within its legal bounds.
• Judicial Review: A process where courts review the legality of decisions or actions made by public bodies. The appellant attempted to challenge PD 51Z within private proceedings instead of seeking a judicial review.
• Practice Direction (PD): Procedural rules issued by courts to guide the conduct of cases. PD 51Z was a temporary rule established to manage court proceedings during the pandemic.
• Part 51.2 of the CPR: A section of the Civil Procedure Rules that allows courts to modify or disapply rules for specified periods under pilot schemes.
• Article 6 of the European Convention on Human Rights: Guarantees the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.

Conclusion

The Arkin v. Marshall judgment serves as a pivotal reference for the judiciary's role in adapting procedural rules during public health emergencies. By upholding PD 51Z, the Court of Appeal emphasized the balance between ensuring access to justice and safeguarding public health. The ruling delineates the boundaries of judicial discretion in modifying procedural directions, reinforcing the necessity for clear legislative authorization when introducing temporary measures. This case underscores the judiciary's commitment to maintaining judicial integrity and efficiency, even amidst unprecedented challenges.