Vos: Covid-19 stay on possession cases includes appeals

Vos: Ruling reflects purpose of practice direction

The automatic stay on possession proceedings during the coronavirus crisis applies to appeals that were underway when the stay took effect, the Court of Appeal has ruled.

Sir Geoffrey Vos, Chancellor of the High Court, said the stay applied to all types of proceedings short of an appeal to the Supreme Court.

Emergency Practice Direction 51Z came into force on 27 March and provides that all proceedings for possession brought under part 55, and all proceedings seeking to enforce an order for possession by a warrant or writ of possession, are stayed for 90 days.

The judgment in London Borough of Hackney v Okoro [2020] EWCA Civ 681 followed the court’s decision earlier this month in Arkin v Marshall, in which Sir Geoffrey ruled that PD 51Z was lawful, applied throughout possession proceedings, and in all but the most exceptional cases should not be lifted.

In February, Mr Okoro was granted permission to appeal a possession order made by a deputy district judge the previous month.

His Honour Judge Dight vacated the appeal hearing fixed for 21 May, and transferred the claim to the Chancery Division to consider the stay issue – Vos LJ then transferred it to the Court of Appeal because it raised an important point of principle and practice.

Mr Okoro’s argument was that the expressed purpose of PD 51Z, as it was held to be in Arkin, made it inevitable that appeals should be included to protect public health and ensure that the courts were not overwhelmed during the pandemic.

Hackney submitted that PD 51Z did not even apply to all claims under part 55, because consent orders for case management directions and actions against trespassers were excluded.

Moreover, it said, the “proceedings for possession” under part 55 cease when a possession order was made, and the appeal process was entirely governed by part 52, so putting it outside the terms of PD 51Z.

The court noted that the practice direction did not mention appeals, but stressed that it covered all possession proceedings “brought” under part 55.

“As a matter of ordinary language, we think that proceedings brought under CPR part 55 are still ‘brought under CPR part 55’, even when they are under appeal. It is true that the procedure governing the appeal is contained in CPR part 52, but the proceedings remain proceedings brought under CPR part 55”

This view was reinforced by the purpose of PD 51Z, Vos LJ continued. “The objectives of the pilot PD 51Z to ‘protect and manage county court capacity, and to ensure the effective administration of justice without endangering public health during a peak phase of the pandemic’ are as much furthered by staying appeals as by staying first instance proceedings for possession, notwithstanding that there are fewer possession appeals than first instance possession claims.

“Moreover, it would be odd if applications to set aside a possession order made in the absence of a defendant were covered by the stay in accordance with the objectives of PD 51Z (as [counsel for Hackney] accepted they are), but appeals directed at achieving the same result were not.”

The court added that PD 51Z “undoubtedly” prevents enforcement of possession orders made under rules other than part 55. Its interpretation included every stage of proceedings brought under part 55, including first or second appeals up to a final judgment in the Court of Appeal.

“They would not, however, be competent to stay an ongoing appeal to the Supreme Court, not because of the words used, but because such appeals are beyond the jurisdiction of the Master of the Rolls in making practice directions under CPR part 51.2.”

Sir Geoffrey said some 138,000 possession claims were brought every year in the county court, although it was not known how many appeals there were.

“It is, however, clear that appeals and applications to set aside possession orders on the grounds of the defendant’s non-attendance under CPR part 39.3(3) are not uncommon. Many defendants to possession claims are vulnerable and unrepresented, and only realise that action is required from them very late in the day.”

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