Covid-19 Update: CPR PD51Z Applies to Appeals

This article seeks to provide a further update from my colleague Paul Tapsell’s article on residential possession and lease forfeiture proceedings during Covid-19.

London Borough of Hackney v Okoro [2020] EWCA Civ 681

This case follows the Court of Appeal decision in Arkin v Marshall [2020] EWCA Civ 620 which was recently handed down on 11 May 2020.

The discreet issue that had to be determined in this matter was whether the automatic stay for “all proceedings for possession brought under CPR PD55” imposed by PD51Z applies to appeals from a possession order that were in existence when the stay began.

CPR PD51Z was amended with effect on 20 April 2020 and is included below:

“This Practice Direction supplements Part 51

1. This practice direction is made under rule 51.2 of the [CPR]. It is intended to assess modifications to the rules and [PDs] that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.

2. Subject to paragraph 2A, 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 are stayed for a period of 90 days from the date this Direction comes into force.

2A. Paragraph 2 does not apply to-
(a) A claim against trespassers, to which rule 55.6 applies;
(b) An application for an interim possession order under section III of Part 55, including the making of such an order, the hearing required by rule 55.25(4), and any application made under rule 55.28(1); or
(c) An application for case management directions which are agreed by all the parties.

3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2, and the fact that a claim to which paragraph 2 applies will be stayed does not preclude the issue of such a claim.”

Background

London Borough of Hackney issued a claim for possession under CPR Part 55, a claim for rent arrears as well as damage for the use and occupation of the room against Mr Okoro in December 2019. In January 2020, Mr Okoro sought an adjournment and permission to file a public law defence. A possession order was made, and the money claims adjourned until March 2020. The judge refused permission to appeal.

In February 2020, Mr Okoro was granted permission to appeal the possession order and the matter was stayed pending the outcome of the appeal (listed for May 2020). PD51Z then came into force and the appeal was stayed. On 15 May 2020, the original appeal date was vacated, the matter was transferred to the Chancery Division and directions were given for the parties to exchange and file written submissions on the question of jurisdiction of the appeal court to hear the appeal pending the lifting or expiration of the stay.

On 15 May 2020, the parties submitted that the case should be heard by the Court of Appeal and that Arkin should be followed. On 18 May 2020, Mr Okoro filed an appellant’s notice that the judge had been wrong to (i) not to order a stay of appeal pursuant to PD51Z following Arkin and (ii) implicitly lift the stay imposed by PD51Z in order to refer to the High Court the issue of whether PD51Z imposed a stay on an appeal from a possession order.

Submissions

Although Arkin made no reference to appeals, the appellant tenant relied upon paragraph 42 of the judgment to explain the intended purpose of PD51Z:

“The purpose was that during the 90-day period the burden on judges and staff in the County Court of having to deal with possession proceedings, which are an immense part of its workload, would be lifted, and also that the risk to public health of proceeding with evictions would be avoided. That purpose is of its nature blanket in character and does not allow for distinctions between cases where the stay may operate more or less harshly on (typically) the claimant. It would be fatally undermined if parties affected by the stay were entitled to rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case. Thus, while we would not go so far as to say that there could be no circumstances in which it would be proper for a judge to order that the stay imposed by PD 51Z should be lifted in a particular case, we have great difficulty in envisaging such a case”.

The appellant tenant contended that appeals were included and that the express purpose of PD51Z is that appeals should be included to protect public health and ensure that the courts are not overwhelmed during the Covid-19 pandemic.

The appellant tenant submitted that appeals were included in the stay because “the proceedings for possession were stayed and those proceedings were not concluded until the final appeal determined whether there was or was not to be an order for possession”.

The respondent landlord asserted that appeals were excluded and submitted that PD51Z does not apply to all claims under CPR Part 55 as consent orders for case managements directions and actions against trespassers are excluded. The respondent landlord argued that proceedings for possession ceased when the order for possession was made and therefore the appeal process is governed by CPR Part 52, not Part 55, and as a result is outside the scope of PD51Z.

Seeking to reinforce his argument that appeals are dealt with under Part 52, the respondent landlord highlighted that appeals of the Supreme Court are governed by that Court’s own rules and therefore would not be covered by PD51Z.

Judgment

The Court of Appeal found that the words of paragraph 2 of PD51Z are broader than the respondent landlord submitted. Emphasis was placed upon the word “brought” and how the proceedings were initiated with the court. The Court of Appeal commented that “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”.

When considering what is covered by PD51Z, the court commented that “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 Mr Paget accepted they are), but appeals directed at achieving the same result were not”.

The court held that the wording “all proceedings for possession brought under CPR Part 55” included every stage of proceedings up to a final judgment in the Court of Appeal. However, it would not cover an ongoing appeal to the Supreme Court as they are beyond the jurisdiction of the Master of the Rolls in making Practice Directions under CPR Part 51.1.

This case provides valuable clarification regarding residential possession proceedings during the Covid-19 pandemic. It will be interesting to see how this area of law develops and what impact it may have on landlords and tenants as we progress through lockdown.

If you require advice or assistance in connection with a landlord and tenant dispute, please do not hesitate to contact our clerks on clerks@becket-chambers.co.uk or 01227 786331.