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Cases

Court of Appeal holds all possession appeals stayed

27.05.2020

As part of the civil courts' response to the current pandemic Practice Direction 51Z ('the Practice Direction') had the effect, from 27 March 2020, of staying possession proceedings under Part 55 and the enforcement of any possession order. On 20 April 2020, the Practice Direction was amended to exclude trespass proceedings and interim possession orders. The Practice Direction does not cover all steps under Part 55, for example, the issuing of claims.

On 11 May 2020 the Court of Appeal in Arkin v Marshall [2020] EWCA Civ 260 held that the Practice Direction was not ultra vires and did not conflict with the Coronavirus Act 2020. But what is the ambit of the Practice Direction?

The Practice Direction was introduced, as is explained within it, because there was:

"The need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health".

In parallel with the Practice Direction, other measures have been taken by all of the civil courts to ensure that court hearings proceed but also comply with social distancing. Consequently, a large number of hearings, including appeals, are being undertaken remotely.

In Okoro v Hackney LBC [2020] EWCA Civ 681 a possession order was made on 24 January 2020. Mr Okoro sought permission to appeal and this was granted on 24 February 2020 with an appeal listed on 21 May 2020. On 15 May 2020, HHJ Dight CBE referred the appeal to the High Court for clarification about whether the Practice Direction covered extant appeals. On 19 May 2020, there was a transfer to the Court of Appeal because the issue was one of general importance.

Today the Court of Appeal confirmed that the Practice Direction does extend to existing appeals. The judgment explains that although appeals are dealt with under Part 52 they are still covered by the Practice Direction because they were originally brought under 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 (paragraph 25)."

The Court also considered that this broad interpretation was consistent with one of the purposes of the Practice Direction because the staying of appeals furthered the effective administration of justice just as much as the staying of first instance proceedings, albeit there were bound to be fewer appeals.

Comment

All outstanding appeals in possession proceedings are covered by the Practice Direction and are currently stayed. If practitioners want a listed appeal to be effective they should apply, ideally with the agreement of the other side, for the appeal judge to lift the stay for exceptional reasons.

Once the Practice Direction has expired there will be a further delay in appeals whilst they are all relisted.

Michael Paget, instructed by Philip Cridge, acted for Hackney LBC.