Courts and practitioners have had to quickly get to grips with the stay in possession proceedings and how it affects the cases with which they are involved.
In Bromford Housing Association Ltd v (1) Nightingale (2) Nightingale [2020] EWHC 1532 (QB) Mr Justice Cavanagh addressed whether he should reconsider his decision not to hand down judgment in a possession appeal until after the stay is lifted. He concluded that the spirit of the stay required the parties to have the opportunity to make further submissions before his judgment is handed down.
Practice Direction 51Z Stay of Possession Proceedings – Coronavirus (PD 51Z) was made on 26 March 2020. On 28 April 2020 the judge heard a rolled-up application for permission to appeal and appeal in a possession claim. This was after PD 51Z was in force but before the decisions of Arkin v Marshall [2020] EWCA Civ 620; [2020] PLSCS 89 and Okoro v Hackney Borough Council [2020] EWCA Civ 681; [2020] PLSCS 100 had been handed down. Had the parties and the judge had the benefit of those decisions, the appeal would inevitably have been stayed and the hearing would not have taken place. On 28 May 2020 the judge therefore issued a ruling about the timing of further steps in the appeal, including the hand-down of his judgment. He decided that (1) he would not hand down his judgment until after the stay imposed by PD 51Z is lifted; (2) he accepted the offer of the appellant’s counsel to notify the court once a date has been set for lifting the stay; (3) parties would be given 14 days from the lifting of the stay to lodge any further written statements (or to indicate that they do not intend to make such or to apply for a further hearing).
After the ruling was made, the decision of Copeland v Royal bank of Scotland plc [2020] EWHC 1441 (QB); [2020] PLSCS 114 was handed down. The parties requested that it be placed before the judge but did not invite him to take any particular step. The judge considered whether, in the light of Copeland he should reconsider the ruling. He decided that he should not do so. The key difference between the case he had heard and Copeland was that Copeland was heard before PD 51Z was in force. The judge concluded that it was important and in keeping with the spirit of the stay that the parties be given a further opportunity to make submissions after the stay is lifted and before his decision is handed down. While it may be that the parties conclude that there is no need to avail themselves of that opportunity they should still have that option.
Elizabeth Haggerty is a barrister at Lamb Chambers
