27/05/2020

When 52 is also 51 because 55.

Maths

London Borough of Hackney v Okoro (2020) EWCA Civ 681

An appeal to the Court of Appeal on the issue of whether appeals of possession orders (or indeed appeals from Part 55 possession proceedings generally) are caught by the Practice Direction 51Z stay of part 55 possession claims.

The short answer is yes they are.

The slightly longer answer is as follows. Mr O was appealing a possession order. The appeal had been stayed until at least 25 June 2020 once PD 51Z came into force. There was then an order transferring the appeal to Chancery direction on the issue of the application of PD 51Z. This was then transferred, with the parties agreeing, to the Court of Appeal.

Mr O, arguing that the stay did apply, submitted “that the expressed purpose of PD 51Z, as it was held to be in Arkin, makes it inevitable that appeals should be included to protect public health and ensure that the courts are not overwhelmed during the pandemic.”

Hackney argued that “PD 51Z does not even apply to all claims under CPR Part 55, because consent orders for case management directions and actions against trespassers are excluded. Moreover, the “proceedings for possession” under CPR Part 55 cease when a possession order is made, and the appeal process is entirely governed by CPR Part 52, so putting it outside the terms of PD 51Z”

The Court of Appeal noted the purpose of PD 51Z, as set out in Arkin (our note).

“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”.

That purpose – sparing the courts and risk to public health – applied equally to appeals, of which there were much fewer, but still substantial numbers. This was the background.

The Court of Appeal noted the wording of PD 51Z – at para 2 – “all proceedings for possession brought under CPR Part 55”. ‘Brought’ focuses on how the proceedings were initiated.

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.

This would not extend to appeals in the Supreme Court

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 51.2.

The Court of Appeal also finds that PD 51Z would be sufficient to stay enforcement of possession orders made under rules other than CPR 55, via para 2, which reads:

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.

Comment

I will confess that my first thoughts were that this would go differently. My sense was that Part 55 is self contained as a procedure, as a subset of Part 7 claims, and is limited to the claim-possession order- warrant stages. Part 55 is not like an allocation to track which persists into appeal (so an appeal in a small claim remains a small claim). Appeals were governed by CPR 52 generally – and distinctly from Part 55. However, I thought, the PD 51Z stay would apply should the appeal court be minded to make, or revise a possession order, as that would be a CPR 55 step. This would have reached the same practical end – no steps within the possession claim, even on appeal.

But I will happily accept that the Court of Appeal’s reading of PD 51Z – claims ‘brought’ under CPR 55 – is cleaner. Except that it leaves a lacuna for appeals of non-Part 55 possession orders, which on my reading of the judgment are not subject to the stay, but would have enforcement of any possession order stayed.

(Examples of non-part 55 possession orders are given in the judgment: (i) an order for possession made under CPR Part 73.10C, paragraph 4.5 of PD 73, and appendix A as part of enforcing a charging order, (ii) an order for delivery up of possession of land under CPR Part 40.17 in giving effect, in particular, to trusts of land, (iii) an order in favour of a trustee in bankruptcy under section 363 of the Insolvency Act 1986 requiring a bankrupt and their family to deliver possession of property, (iv) an order against a spouse or partner requiring delivery of possession under schedule 7 of the Family Law Act 1996, and orders under paragraph 9.24 of the Family Procedure Rules, and (v) health and safety remedies requiring possession under sections 270 and 338 of the Housing Act 1985.)

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

4 Comments

  1. Anon

    Thanks for this interesting article. If a landlord issues a claim for possession today, is the claim stayed for 90 days from today or for 90 days from when the PD came into force (i.e. until 25th June?). Thanks

    Reply
      • YG

        Dear Giles – that was my understanding too, except that our local courts (in London) have been sending out letters on newly-issued cases reading as follows:

        “This letter is issued on the authority of the Designated Civil Judge for London (HHJ Luba QC). I regret to inform you that, in the circumstances arising from the current national emergency, this possession claim is stayed for 90 days.”

        This seems to imply a different understanding and leaves me uncertain. I haven’t yet tried to query or test whether they really mean it, and I don’t know whether I would get a timely answer if I did.

        Reply
        • Giles Peaker

          I note it doesn’t say ‘pursuant to PD 51Z’. Could well be simply on CPR 3 case management powers, were the courts are not in a position to progress claims even if PD 51Z were not in force.

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