Does the stay of possession proceedings imposed by Practice Direction 51Z “Stay of Possession Proceedings” (PD 51Z) apply to appeals of possession proceedings? This was the question that the Court of Appeal considered in London Borough of Hackney v Okoro [2020] EWCA Civ 681. It concluded that while ongoing appeals to the Supreme Court would not be caught, every stage of possession proceedings, including first or second appeals up to a final judgment in the Court of Appeal, are stayed.
In Arkin v Marshall [2020] EWCA Civ 620 [2020] PLSCS 89 the Court of Appeal had considered the construction of PD 51Z. The question it now faced is whether the automatic stay imposed by PD 51Z applies to appeals from possession orders that were extant when the stay began, as much as to first instance possession claims themselves.
Under paragraph 2, PD 51Z stays “all proceedings for possession brought under CPR Part 55”. The use of the word “brought” was considered significant as it focused on how the proceedings were initiated. The Court of Appeal concluded that even though the procedure governing appeals is contained in CPR 52, the proceedings remain proceedings brought under CPR 55. This construction supports 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”. It also means that appeals would be stayed in the same way as applications to set aside a possession order made in the absence of a defendant.
Per Sir Geoffrey Vos: “The words ‘all proceedings for possession brought under CPR Part 55’ are competent to include every stage of such proceedings including first and 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.”
Elizabeth Haggerty is a barrister at Lamb Chambers
