CORONAVIRUS LAW: STAY LIFTED SOLELY FOR THE PURPOSE OF HANDING DOWN APPEAL JUDGMENT
In Copeland v Bank of Scotland Plc  EWHC 1441 (QB) Mr Justice Freedman lifted the stay on possession proceedings for the purpose of handing down a judgment on appeal.
The action related to possession proceedings brought by a bank. The appellant was seeking to appeal an order giving the bank possession. The appeal was heard on the 26th & 27th February 2020 and judgment was reserved.
THE JUDGMENT ON THIS ISSUE
The appeal was heard on 26th and 27th February 2020, and judgment was reserved in order to prepare and hand down a written judgment, which in the usual way would be preceded by a confidential draft having been supplied to the parties. After that had been sent in draft to the parties, the respondent raised with the Court on 4th and 5th May 2020 whether Practice Direction 51Z, “Stay of Possession Proceedings – Coronavirus (“PD 51Z”) applied. PD 51Z was made on 26th March 2020 in response to the Covid-19 pandemic which came into force on the following day, and the amended version which came into force on 20th April 2020. On 4th May 2020, the respondent’s Counsel stated that “It would be the respondent’s position that the Practice Direction does not prevent the handing down of judgment or the making of a consequential order, provided that – as is proposed in the draft order – no steps are taken by either party during the stay period.” By a further email from the solicitors for the respondent to the Court on 5th May 2020, it was stated that this remained the respondent’s position, but reference was made to the case of Arkin v Marshall in which the Court of Appeal had reserved consideration of PD 51Z. One suggestion was that the Court might wish to consider the impact of the reserved judgment in Arkin v Marshall on the instant appeal. That was a helpful suggestion in that it allowed this Court to consider its impact as well as the impact of another case which followed.
On 11th May 2020, the Court of Appeal handed down judgment in Arkin v Marshall  EWCA Civ 620. It rejected a contention that PD 51Z was ultra vires. It said that it provided a blanket stay on possession proceedings. It “imposes a temporary stay 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” (paragraph 28). There is a power under CPR 3.1 to stay proceedings where it thinks it fit to do so, and “the power to impose a stay necessarily includes the power to lift it” (paragraph 39). The Court of Appeal stated that PD 51Z did not formally exclude the operation of CPR part 3.1 (paragraph 42). As a matter of strict jurisdiction, a judge retains the power to lift the stay which PD 51Z imposes. However, the proper exercise of that power is informed by the nature of the stay and the purposes for which it was evidently imposed. The purpose identified was that during the 90-day period the burden on judges and staff in the County Court of having to deal with possession proceedings would be lifted, and also that the risk to public health of proceeding with evictions would be avoided. Since the purpose is of its nature blanket in character, it would be undermined if it could be avoided in the particular circumstances of particular cases. Thus, the Court of Appeal had great difficulty in envisaging a case where it could be lifted.
The question has arisen as to whether PD 51Z applied to appeals in respect of decisions in respect of possession matters. In a different case, 27th May 2020, the Court of Appeal gave judgment in the case of London Borough of Hackney v Okoro  EWCA Civ 681. It stated that PD 51Z applied to appeals in possession proceedings up to the Court of Appeal. It would follow that had this appeal been due to be heard after PD 51Z came into being, this appeal would be stayed. However, all that remains is for the reserved judgment to be handed down. In my judgment, it is undesirable in this case, when following a heavily contested appeal, where there is a reserved judgment ready to be handed down following extensive preparation, to postpone hand-down of the judgment until such time as PD 51Z ceases to have effect. That may be towards the end of June, or it may be much later if PD 51Z is extended thereafter. This is not intended to inform any other Court about what to do in connection with a reserved judgment in another case: it is a course of action taken by reference only to the circumstances of this case.
It is important that the hand-down of the judgment does not have an effect inimical with PD 51Z. In the event of the appeal being dismissed, there should be the following provisos, namely (a) that any possession order must be stayed under PD 51Z for however long PD 51Z applies, and (b) an extension of time to apply for permission to bring a second appeal until after PD 51Z has ceased to apply would preserve the purpose of PD 51Z.. In my judgment, the stay should be lifted pursuant to CPR 3.1 for the very narrow purpose of issuing the reserved judgment and making a consequential order, but subject to these provisos.