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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Arkin v Marshall [2020] EWCA Civ 620 (11 May 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/620.html Cite as: [2020] WLR(D) 330, [2020] EWCA Civ 620, [2020] 1 WLR 3284, [2020] HLR 32 |
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ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HH Judge Parfitt
Strand, London, WC2A 2LL |
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B e f o r e :
(Chancellor of the High Court)
LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))
and
LADY JUSTICE SIMLER
____________________
Claim No: F00HF362 |
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MEHMET ![]() ![]() |
Claimant/Appellant |
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-and- |
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GARY RONALD ![]() | Defendant/Respondent |
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-and- |
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THE LORD CHANCELLOR |
Interested Party |
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-and- |
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HOUSING LAW PRACTITIONERS ASSOCIATION |
Intervener |
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And Between: |
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Claim No: F00HF363 |
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GARY RONALD ![]() ![]() ![]() ![]() |
Claimant/Appellant |
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-and- |
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(1) MR BRETT ![]() (2) ![]() ![]() | Defendants/Respondents |
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-and- |
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THE LORD CHANCELLOR |
Interested Party |
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-and- |
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HOUSING LAW PRACTITIONERS ASSOCIATION |
Intervener |
____________________
Mr Stephen Knafler QC and Mr Julian Gun Cuninghame (appearing by direct access) for the Respondents
Mr Jonathan Auburn (instructed by the Government Legal Department) for the Interested Party
Mr Martin Westgate QC and Mr Daniel Clarke (instructed by Edwards Duthie Shamash) for the Interveners
Hearing date: 30th April 2020
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 1pm on 11 May 2020.
Sir Geoffrey Vos, Chancellor of the High Court, giving the judgment of the Court:
INTRODUCTION
In claim number F00HF362, the issues are:
"1. Does [the Appellant] have a right to possession of the property?
2. Does the [Consumer Credit Act 1974 ("the CCA")] apply to the loan agreement and, if so, is [the Appellant] a creditor within the meaning of [the CCA]?
3. If the [CCA] does apply to the loan agreement and [the Appellant] is a creditor within the meaning of [the CCA], is the loan agreement unenforceable without a court order for failure to be in the form and content required by s. 60 of the CCA and regulations under that section?
4. If sections 140A to 140C of [the CCA] apply, does the loan agreement give rise to an unfair relationship?
5. Is the loan agreement and/or the legal charge a sham and/or illegal and, if so, what is the effect?"
In claim number F00HF363, the issues are:
"1. Does the Receiver [the Appellant] have the necessary power to bring these proceedings and take possession of the Properties?
2. If so:
(a) Does D1 [BrettMarshall]
have a lifetime licence to occupy The Cottage and, if so, does the lifetime licence take priority over the mortgages so that C is not entitled to possession. Was the lifetime licence properly terminated by the letter dated 16 September 2019?
(b) Is D2 [KimMarshall] in occupation of The Barn and, if she is, does she have a beneficial interest in The Barn which would take priority over the mortgages so that C is not entitled to a possession order?"
"This Practice Direction supplements Part 51
1. This practice direction is made under rule 51.2 of the [CPR]. It is intended to assess modifications to the rules and Practice Directions that may 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. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.
2. All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force.
3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2".
It should be noted, because it is fundamental to the issues which follow, that the Practice Direction purports to be made under powers conferred by rule 51.2 of the CPR.
"1. Practice Direction 51Z was made ultra vires.
2. Alternatively, the learned judge was wrong to find that [PD 51Z] was intended to apply to all proceedings under Part 55, even if they had proceeded past the stage of being allocated to the multi-track and had been given case management directions.
3. The learned judge was wrong to decide that the court had no power to lift the stay on a case-by-case basis."
The challenge to the vires of PD 51Z advanced in ground 1 was not raised below and there is an issue whether such a challenge can be raised otherwise than by way of judicial review.
"Paragraph 2 does not apply to
(a) a claim against trespassers to which rule 55.6 applies;(b) an application for an interim possession order under Section III of Part 55, including the making of such an order, the hearing required by rule 55.25(4), and any application made under rule 55.28(1); or(c) an application for case management directions which are agreed by all the parties".
Paragraph 2 was consequentially amended so as to start with the words "subject to paragraph 2A", and the words "and the fact that a claim to which paragraph 2 applies will be stayed does not preclude the issue of such a claim" were added at the end of paragraph 3.
(1) Does this court have jurisdiction to consider the vires of PD 51Z, and should it do so?
(2) If so:
(a) Was the making of PD 51Z properly authorised by CPR Part 51.2 as a pilot scheme "for assessing the use of new practices and procedures in connection with proceedings"?
(b) Is PD 51Z inconsistent with or rendered unlawful by the provisions of the Coronavirus Act 2020?
(c) Is PD 51Z inconsistent with article 6 of the European Convention on Human Rights or the principle of access to justice?
(3) Does PD 51Z apply to cases allocated to the multi-track in which case management directions had been given before it was introduced?
(4) Does the court have jurisdiction to lift the stay imposed by paragraph 2 of PD 51Z?
(5) If so, should the Judge have lifted the stay in this case?
ISSUE 1: SHOULD THE VIRES CHALLENGE BE CONSIDERED?
ISSUE 2 (a): WAS PD 51Z PROPERLY AUTHORISED AS A PILOT SCHEME?
"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".
ISSUE 2 (b): THE CORONAVIRUS ACT 2020
ISSUE 2 (c): ARTICLE 6 AND THE PRINCIPLE OF ACCESS TO JUSTICE
ISSUE 3: DOES PD 51Z APPLY TO CASES ALLOCATED TO THE MULTI-TRACK IN WHICH CASE MANAGEMENT DIRECTIONS HAD BEEN GIVEN BEFORE IT WAS INTRODUCED?
ISSUE 4: DOES THE COURT HAVE JURISDICTION TO LIFT THE STAY?
"This Practice Direction supplements Part 51
1. This practice direction is made under rule 51.2 of the [CPR]. It is intended to assess modifications to the rules and [PDs] that may 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. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.
2. Subject to paragraph 2A, all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force
2A. Paragraph 2 does not apply to-
(a) A claim against trespassers, to which rule 55.6 applies;
(b) An application for an interim possession order under section III of Part 55, including the making of such an order, the hearing required by rule 55.25(4), and any application made under rule 55.28(1); or
(c) An application for case management directions which are agreed by all the parties.
3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2, and the fact that a claim to which paragraph 2 applies will be stayed does not preclude the issue of such a claim".
ISSUE 5: SHOULD THE JUDGE HAVE LIFTED THE STAY IN THIS CASE?
CONCLUSIONS
Note 1 The Appellant also referred to Ventra Investments Ltd v. Bank of Scotland Plc [2019] EWHC 2058 (Comm) at [36]-[40]. Both decisions must be read subject to the decision of the Chancellor in UTB LLC v. Sheffield United Ltd & Ors [2019] EWHC 914 (Ch) as to the applicability of the disclosure pilot. [Back]