COVID-19: Court of Appeal decided the stay on possession proceedings imposed by CPR PD51Z also applied to appeals28/05/20
The Court of Appeal has decided that the 90-day stay imposed on possession proceedings by CPR PD51Z also extends to appeals made in respect of possession cases bought under CPR Part 55: seeHackney LBC v. Okoro  EWCA Civ 681 (27 May 2020).
The Background to the Case
CPR PD51Z came into force on 27 March 2020 and imposed a 90-day stay on all possession proceedings bought under CPR Part 55. See our insight here. It was amended - with effect from Saturday, 18 April 2020 – to exclude trespasser claims against unknown person (under CPR 55.6) and to allow the court to approve, on application, agreed case management directions. See our insight here.
On 11 May 2020, the Court of Appeal handed down judgment in Arkin v Marshall and another  EWCA Civ 620 (11 May 2020) in which the court confirmed the legality of CPR PD51Z. See our insight here.
What is the outcome?
In short, any appeal against the making of, or refusal to make, a possession order which is bought under CPR Part 55 is caught within the terms of the stay imposed by CPR PD51Z.
The Court also decided that subject to paragraph 2A of CPR PD51Z which dis-applies the Practice Direction in certain trespasser proceedings, the stay on seeking to enforce possession orders applies to all orders for possession and not just those under CPR Part 55.
In the earlier decision of Arkin, whilst judges ‘theoretically’ have the power to lift the stay, having regard to the purpose for which it was introduced – “so as not to endanger public health” - it should only be exercised in the most exceptional of circumstances: the court found it difficult to envisage any circumstances that may make it appropriate for a judge to order this stay to be lifted.
What does this mean in practice for housing providers?
Many housing lawyers, thought this case was likely to go differently.
Whilst those dealing with anti-social behaviour might grumble about the inability to enforce possession orders against those who are making the lives of their neighbours a misery, there is still a general understanding that it was necessary for the protection of public health in this unprecedented global emergency to limit movement of people.
However, it seems one thing to prevent enforcement of a possession order and another to prevent any steps being taken on a case where there is representation on both sides and no issues of COVID-19 preventing compliance with directions to get matters trial ready.
It is difficult to understand the public health reason, that prevents courts dealing with the legal arguments in an appeal where both sides are represented, hearing evidence is not an issue and COVID-19 is not impacting on the ability of either party to participate effectively, if, after the arguments have been dealt with, the enforcement of any existing order upheld (or made) on appeal is still subject to a stay.
The upshot is a difficult pill to swallow in cases where there is persistent ASB in particular.
However, the stay is currently due to be lifted on 25 June 2020 and we continue to advocate that housing providers continue with case preparations, seek to agree directions if possible and encourage Defendants to engage with the process.
Once the stay is lifted, housing providers should have taken as many steps as possible to be trial ready and can request tighter timetables for Defendants who were un co-operative or did not use the time wisely.
How can Capsticks help?
We remain well placed to continue to help you deal with cases swiftly and are in regular contact with your local courts to keep a finger on the pulse of any differing practices they are adopting.
If you have any queries around what is discussed in this article, or the steps that you can take in any given case, please do not hesitate to speak to Simon Strelitz, or any of your contacts at Capsticks to find out more about how we can help.