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Should I stay or should I go?

James Castle considers whether the automatic stay on possessions imposed by CPR PD 51Z applies to appeals to possession orders in the light of the Court of Appeal decision in London Borough of Hackney v Okoro [2020] EWCA Civ 681.

If possession proceedings were initially “brought” under CPR Part 55, and are not caught by one of the exceptions set out in CPR PD 51Z Para.2A, then the automatic stay imposed by the practice direction takes effect.

This applies not just to first instance proceedings, but also to appeals and other applications to set aside possession orders.

But CPR PD 51Z has no effect on an ongoing appeal to the Supreme Court.

Facts

Hackney LBC is Mr Okoro’s landlord, and on 24 January 2020 obtained a possession order against him in proceedings brought under CPR Part 55.

HHJ Monty QC granted Mr Okoro permission to appeal the possession order on 25 February 2020, staying enforcement of the possession order in the meantime. The appeal was initially listed for 21 May 2020.

On 27 March 2020, CPR PD 51Z came into force. On 7 May 2020, DJ Swan made an order staying the appeal until 25 June 2020 or such later date as may apply under CPR PD 51Z, should it be amended.

On 15 May 2020, HHJ Dight CBE vacated the appeal hearing, transferred the claim to the Chancery Division of the High Court, and directed the parties to file written submissions on the question of the jurisdiction of the appeal court to hear the appeal pending the lifting or expiration of the stay. Counsel for the parties submitted that the case should instead be transferred to be heard by the Court of Appeal under CPR r.52.23(1) (as took place in Arkin v Marshall [2020] EWCA Civ 620).

On 18 May 2020, Mr Okoro filed an appellant’s notice arguing that HHJ Dight CBE was wrong (1) not to order a stay of the appeal under CPR PD 51Z, given the decision in Arkin and (2) to implicitly lift the stay imposed by CPR PD 51Z by referring the matter to the High Court.

On 19 May 2020, the Chancellor granted permission to appeal in respect of the 18 May 2020 appellant’s notice, and ordered that this appeal be transferred from the High Court to the Court of Appeal under CPR r.52.23(1)(a), given that it raised an important point of principal and practice.

Issues

Whether the automatic stay imposed by CPR PD 51Z applies to appeals from possession orders.

Decision

The Court of Appeal concentrated on how CPR PD 51Z applies to “all proceedings brought under CPR Part 55”, save for express exceptions. The word “brought” specifically focuses on how proceedings are initiated. Even when under appeal, which follows the regime set out in CPR Part 52, proceedings initially brought under CPR Part 55 remain “brought” under that part for the purposes of CPR PD 51Z.

The Court of Appeal also reiterated the purpose of CPR PD 51Z as set out in [42] of Arkin. The objectives of CPR 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” are furthered by staying appeals as well as first instance proceedings.

Given both the wording of CPR PD 51Z, and its purpose, the Court of Appeal did not hesitate to find that the stay includes “every stage of [proceedings for possession brought under CPR Part 55] including first or second appeals up to a final judgment in the Court of Appeal.”

The Court of Appeal was then careful to highlight that CPR PD 51Z was not competent to stay an ongoing appeal of proceedings brought under CPR Part 55 to the Supreme Court, as “such appeals are beyond the jurisdiction of the Master of the Rolls in making Practice Directions under CPR Part 51.2.”

Comment

It was conceded by Counsel for Hackney LBC that an application to set aside a possession order (made in proceedings brought under CPR Part 55) made in the absence of a defendant under CPR r.39.3(3) would be caught by CPR PD 51Z, and the Court of Appeal happily accepts this at [26].

By extension, looking specifically at the Court of Appeal’s deliberate determination that “every stage” of proceedings brought under CPR Part 55 are stayed, the practice direction is intended to catch any kind of application made to set aside a possession order, for whatever reason, provided that the initial possession action was brought under CPR Part 55, and the proceedings are not expressly excepted by CPR PD 51Z (such as for IPOs brought under Section III of CPR Part 55).

James Castle is a barrister at Tanfield Chambers

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