CORONAVIRUS LAW: POSSESSION APPEAL HEARD IN STAY PERIOD: JUDGMENT WILL NOT BE GIVEN UNTIL END OF THE STAY

The judgment of Mr Justice Cavanagh yesterday in  Bromford Housing Association Ltd v Nightingale & Anor [2020] EWHC 1532 (QB) is another variant of the issues relating to the stay of possession proceedings.  In this case the judge declined to give judgment in an appeal that had been heard during the period of the stay.  Such an appeal was materially different to an appeal heard prior to the stay.

 

THE CASE

The court had heard an appeal in relation to possession proceedings on the 28th April 2020 (it was heard remotely by Skype for business). At on the 28th May 2020 the judge stated he would give judgment after the end of teh stay period in PD 51Z.

DID THE JUDGMENT IN COPELAND AFFECT THE JUDGE’S DECISION

The parties wanted to know whether the judgment in Copeland affected the judge’s decision to defer the giving of judgment.  The judge held it did not.

  1. Yesterday, the parties helpfully drew my attention to the judgment of Freedman J in Copeland v Royal Bank of Scotland plc [2020] EWHC 1441 (QB), which was handed down on 4 June 2020. The parties were in agreement that this case was in relevant to the present case and asked that it be placed before me. Neither of the parties invited me to take any particular step in light of the judgment in Copeland.
  2. Copeland was an application for permission to appeal against a refusal to set aside a possession order, with appeal to follow if successful. In Copeland, the oral argument took place in February 2020, before PD 51Z was issued and before the stay on possession proceedings was imposed, but the judgment had not been handed down at the time when the stay came into force. Freedman J decided to lift the stay under CPR 3.1 for the narrow purpose of issuing the reserved judgment and making consequential orders, but also ordered that any possession order would be stayed under PD 51Z, for however long PD 51Z applies, and that he would grant an extension of time to bring a second appeal until after PD 51Z had ceased to apply.
  3. I have considered whether, in light of Copeland, I should reconsider the order that I made on 28 May. I have decided that I should not do so. There is a key difference between Copeland and the present case, which is that the hearing in Copeland took place before the stay was imposed by PD 51Z. It just happened to be the case that the reserved judgment in Copeland had not been handed down at the point at which the stay came into effect. In the present case, in contrast, the stay was in force at the time when the appeal hearing took place. If the parties and I had enjoyed the benefit of seeing the Court of Appeal judgments in Arkin and Okoro at the time of the hearing, the proceedings would inevitably have been stayed and the hearing would not have taken place. In those circumstances, I think that it is important, and in keeping with the spirit of the stay, that the parties are given a further opportunity make submissions after the stay is lifted and before I hand down my judgment. It may be that they decide that there is no need to do so, but, nonetheless, they should be given that opportunity. There was no such need in Copeland because the appeal hearing had concluded before the stay was imposed.
  4. In reality, the practical effect of course of action that I have decided upon is not very different from that decided upon by Freedman J in Copeland. The only consequence is that, after the stay has been lifted, there will be a further short delay whilst the parties are given the opportunity to make further submissions, before I hand down my judgment.
  5. Accordingly, the order that I made on 28 May 2020 remains in place.