Practice and procedure – Possession proceedings – Appeal – Respondent landlord seeking possession order and claiming rent arrears and damages – Court making possession order but adjourning money claims – Judge granting stay of possession order pending outcome of appellant tenant’s appeal – Practice Direction PD 51Z coming into force – Whether automatic stay imposed by PD 51Z applying to appeals against possession orders – Appeal allowed
In December 2019, the respondent issued a claim for possession under CPR part 55 against the appellant for possession of room G21, Shuttleworths Hotel, 23-25 Well Street, London and payment of rent arrears and damages for the use and occupation (the money claims).
In January 2020, the deputy district judge made a possession order but adjourned the money claims to be heard in March 2020. In February, the appellant was granted permission to appeal the possession order, which was stayed pending the outcome of the appeal. On 16 March 2020, the parties agreed a consent order adjourning the hearing of the money claims pending determination of the appeal against the possession order.
On 27 March 2020, Practice Direction 51Z, “Stay of Possession Proceedings – Coronavirus” (PD 51Z) came into force. Paragraph 2 provided for an automatic 90-day stay of possession and enforcement proceedings. On 7 May 2020, the district judge ordered that the adjourned money judgment claim “is stayed until 25 June 2020 or such later date as may apply under [PD 51Z] when the claimant and defendant may request such further directions as are appropriate, which shall be agreed if possible”.
The appellant filed an appellant’s notice contending that the judge had been wrong: (i) not to order a stay of the appeal against the possession order under CPR part 52 pursuant to PD 51Z after the decision in Arkin v Marshall [2020] EWCA Civ 620; [2020] PLSCS 89; and (ii) to implicitly lift the stay imposed by PD 51Z in order to refer to the High Court the issue of whether PD 51Z imposed a stay on an appeal from a possession order.
The appeal was transferred from the High Court to the Court of Appeal for determination pursuant to CPR rule 52.23(1)(a) on the grounds that it raised an important point of principle and practice. The sole issue was whether the automatic stay imposed by PD 51Z applied to appeals from possession orders that were extant when the stay began, as much as to first instance possession claims themselves.
Held: The appeal was allowed.
(1) Although the judgment in Arkin v Marshall made no reference to appeals, it explained that the blanket purpose of PD 51Z was that during the 90-day period the burden on judges and staff in the county court of having to deal with possession proceedings would be lifted; and that the risk to public health of proceeding with evictions would be avoided.
(2) The words “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” in para 2 of PD 51Z did not mention appeals. CPR part 52 provided a separate regime for the conduct and management of appeals, so that appeals were undertaken pursuant to CPR part 52, not CPR part 55.
However, the words of para 2 of PD 51Z stayed “all proceedings for possession brought under CPR Part 55”. The court emphasised the word “brought”, because it focused on how the proceedings were initiated. As a matter of ordinary language, proceedings brought under CPR part 55 were still “brought under CPR part 55”, even when they were under appeal. Although the procedure governing the appeal was contained in CPR part 52, the proceedings remained proceedings brought under CPR part 55.
(3) The court was reinforced in the view it took about the proper construction of para 2 in relation to appeals by the purpose of PD 51Z. 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 were as much furthered by staying appeals as by staying first instance proceedings for possession, notwithstanding that there were 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, but appeals directed at achieving the same result were not.
That analysis made it unnecessary to consider why PD 51Z stayed enforcement as well as all proceedings for possession brought under CPR part 55. Whatever the thinking behind it, para 2 of PD 51Z undoubtedly prevented enforcement of possession orders made under rules other than CPR part 55. The words “all proceedings for possession brought under CPR part 55” were competent to include every stage of such proceedings 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 were beyond the jurisdiction of the Master of the Rolls in making Practice Directions under CPR part 51.2.
(4) In those circumstances, PD 51Z had the effect of imposing a stay on the appellant’s appeal against the possession order. The judge had been right implicitly to lift the stay to refer the disputed question of jurisdiction to the High Court. Now that the position had been clarified, appeals against possession orders would not be able to proceed (subject to the exceptions in para 2A of PD 51Z), while the stay remained in force.
Accordingly, the stay imposed by PD 51Z applied to the appellant’s appeal from the possession order. The outstanding aspects of the claim, including the appeal, would be returned to the county court for further consideration after the termination of the stay imposed by PD 51Z.
Stephen Knafler QC and Timothy Baldwin (instructed by Hackney Community Law Centre) appeared for the appellant; Michael Paget (instructed by Hackney London Borough Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Hackney London Borough Council v Okoro
