AUTOMATIC STAY OF POSSESSION HEARINGS APPLIES TO APPEALS: COURT OF APPEAL DECISION THIS MORNING

In London Borough of Hackney -v- Okoro [2020] EWCA Civ 681 the Court of Appeal found that the automatic stay on possession proceedings also applies to appeals against possession orders.

 

 

THE CASE

The Court of Appeal were asked to determine whether the stay on possession proceedings brought about by PD 51Z also applied to appeals against possession orders.   The landlord had obtained an order for possession, the tenant appealed. The landlord argued that the appeal was governed by CPR 52 and not CPR 55.

THE COURT OF APPEAL DECISION: STAY APPLIES TO APPEALS

The Court of Appeal did not accept the landlord’s argument.
“In our judgment, however, the words of paragraph 2 of PD 51Z are broader than Mr Paget submitted. They stay “all proceedings for possession brought under CPR Part 55”. We have emphasised the word “brought”, because it 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.
26. We are reinforced in the view we take about the proper construction of paragraph 2 in relation to appeals by the purpose of PD 51Z. 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” are as much furthered by staying appeals as by staying first instance  proceedings for possession, notwithstanding that there are fewer possession appeals than first instance possession claims. Moreover, 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 at achieving the same result were not.
27. This analysis makes it unnecessary to consider why PD 51Z stayed enforcement as well as “all proceedings for possession brought under CPR Part 55”. Whatever the thinking behind it, paragraph 2 of PD 51Z undoubtedly prevents enforcement of possession orders made under rules other than CPR Part 55. The words “all proceedings for possession brought under CPR Part 55” are competent to include every stage of such proceedings including first or 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 51.2.
28. In these circumstances, we agree with Mr Okoro that PD 51Z had the effect of imposing a stay on his appeal against the possession order made by DDJ Tomlinson. HHJ Dight was right implicitly to lift the stay to refer the disputed question of jurisdiction to the High Court. Now that the position has been clarified, this and other appeals against possession orders will not be able to proceed (subject to the exceptions in paragraph 2A of PD 51Z), whilst the stay remains in force. 
Conclusion
29. For the reasons we have given, we will allow the appeal, and order that the stay imposed by PD 51Z applies to Mr Okoro’s appeal from DDJ Tomlinson’s order of 24 January 2020.
30. The outstanding aspects of the claim, including, of course, the appeal from DDJ Tomlinson’s order, will be returned to the County Court for further consideration after the termination of the stay imposed by PD 51Z