The hearing of an appeal of a mortgage possession claim concluded before Practice Direction 51Z Stay of Possession Proceedings – Coronavirus (PD 51Z) came into force. Should handing down the perfected judgment be stayed? This was an issue faced by Mr Justice Freedman in Copeland v Bank of Scotland plc [2020] EWHC 1441 (QB); [2020] PLSCS 114.
Almost five years after the mortgage possession action was commenced, on 6 August 2018 a possession order was obtained by Bank of Scotland. The possession order was made by Master Davison at a hearing which the appellant did not attend. On 1 November 2018 Master Davison refused to set aside that possession order and it was that refusal which was the subject of the appeal before Judge Freedman, which appeal also required permission to be heard out of time. The permission request and substantive appeal took place over two days in February 2020. Judgment was reserved in order to hand down a written judgment. In the usual way, a confidential draft was supplied to the parties. Thereafter on 4 and 5 May the bank’s representatives questioned whether PD 51Z applied, they were also proactive in suggesting how the matter could properly proceed.
Sensibly, time was taken to allow the decision in Arkin v Marshall [2020] EWCA Civ 620; [2020] PLSCS 89 to be handed down. This also allowed London Borough of Hackney v Okoro [2020] EWCA Civ 681; [2020] PLSCS 100 to be considered. The judge noted that had the appeal before him been due to be heard after PD 51Z came into force, the appeal would have been stayed. However, as all that was required was the handing down of the decision in what had been a heavily contested appeal, it would be undesirable to postpone hand-down of the judgment until such time as PD 51Z ceased to have effect.
The judge was careful to observe that his decision was not intended to inform any other court about what to do in connection with reserved judgments in other cases. It is important that the hand-down of a judgment does not have an effect inimical with PD 51Z. He made useful, important provios: “In the event of the appeal being dismissed, there should be the following provisos, namely (a) that any possession order must be stayed under PD 51Z for however long PD 51Z applies, and (b) an extension of time to apply for permission to bring a second appeal until after PD 51Z has ceased to apply would preserve the purpose of PD 51Z. In my judgment, the stay should be lifted pursuant to CPR 3.1 for the very narrow purpose of issuing the reserved judgment and making a consequential order, but subject to these provisos.”
In the handed down judgment, the judge gave permission to appeal out of time – the delay had been short, the appeal had been issued in the wrong court (the appellant was acting in person) but there had been no prejudice caused by the delay. On the substantive issue the judge dismissed the appeal, upholding the decision not to set aside the possession order under CPR 39.3. CPR 39.3 enables a party who does not attend a trial to apply for the judgment or order to be set aside. The judge considered that it applied to the hearing either directly or by analogy. He concluded that although the appellant had acted properly, she had failed to establish that she had a good reason for not attending the trial – even applying the less rigorous approach in Bank of Scotland v Pereira [2011] EWCA Civ 241; [2011] PLSCS 73. Further, she did not have a reasonable prospect of success at trial.
Elizabeth Haggerty is a barrister at Lamb Chambers
