Appeal judges to rule on legality of Covid-19 practice direction


Mullings: Equality of arms argument

The Court of Appeal is to hear a challenge on Thursday on the power of the Master of the Rolls (MR) to make an emergency practice direction in response to Covid-19.

A receiver appointed by a lender is challenging PD 51Z on the grounds that the Master of the Rolls, Sir Terence Etherton, was acting ultra vires in staying all possession proceedings for three months from the end of March.

In Arkin v Marshall at Central London County Court, the proceedings were allocated to the multi-track in November 2019, and costs and case management conference was due to take place on 26 March. Although the conference did not happen, directions were given, leading to a trial in a window between October 2020 and January 2021.

Counsel for Mehmet Arkin argued that there was “no increased risk to public health” by the parties complying with the directions and “it would be a nonsense” for the stay to be applied.

However, His Honour Judge Parfitt agreed with counsel for the defendants that the leading Court of Appeal case of Secretary of State for Communities v Bovale [2009] EWCA Civ 171 required the court to give effect to the practice direction and this was “not a discretion, but a requirement arising out of the nature of this particular practice direction”.

The Housing Lawyers Practitioners Association (HLPA) is intervening in Arkin, which co-chair Simon Mullings was a first for the group.

He said the two other arguments raised by lawyers for Mr Arkin, the fixed charge receiver, were whether the court had the power to lift the stay and whether it applied to possession proceedings that had moved beyond allocation.

Mr Mullings said HLPA’s intervention would support the case put forward by lawyers for the respondents – that PD 51Z was not ultra vires, courts had no power to lift the stay and it applied to all stages of proceedings.

He said HLPA’s arguments would focus on the practical problems faced by its members, who were often working with vulnerable clients, in complying with court directions during the Covid-19 crisis.

HLPA members have provided plenty of evidence of the problems, following an urgent call, he said.

Mr Mullings said: “Our client group does not come in with a neat, lever-arch folder of documents. We are more likely to get a plastic bag which they rely on us to sift through.

“Our clients can’t get documents in any form of order or afford to post them to us. Explaining the disclosure duty properly to them is difficult enough face to face, let alone remotely.”

Mr Mullings said preparing witness statements was “very difficult by phone or video”, and it was particularly difficult for clients to concentrate for a long period of time when they had caring obligations.

A further problem was expert evidence, which was “simply not happening at the moment”. In housing cases, medical experts were often needed to give evidence on mental health issues.

“It’s an equality of arms argument,” he said. “The landlord litigators will be able to instruct solicitors in a much more effective way.”

Mr Mullings, a senior caseworker at Edwards Duthie Shamash in London, said the law firm was representing HLPA pro bono. He added that the government had also applied to intervene in the case.




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