Court of Appeal rules that COVID-19 related freeze on evictions also imposes freeze on eviction appeal proceedings

London Borough of Hackney v Okoro [2020] EWCA Civ 681

In a new judgment, the Court of Appeal has ruled that the coronavirus (COVID-19) related freeze on evictions also imposes a freeze on eviction appeal proceedings.

Introducing the court's judgment in London Borough of Hackney v Okoro [2020] EWCA Civ 681 (27 May 2020), Sir Geoffrey Vos, Chancellor of the High Court, says that the appeal -

'... raises a discrete issue, following on from our decision on 11 May 2020 in Arkin v. Marshall [2020] EWCA Civ 620 (Arkin) concerning the proper construction of Practice Direction 51Z, 'Stay of Possession Proceedings – Coronavirus' (PD 51Z) ...' (paragraph 1)

- and that -

'The simple question on this appeal is whether the automatic stay imposed by PD 51Z applies to appeals from possession orders that were extant when the stay began, as much as to first instance possession claims themselves. More specifically, do the words 'all proceedings for possession brought under CPR Part 55' in paragraph 2 of PD51Z include such appeals. The appellant tenant, Mr Kevin Okoro (Mr Okoro), contends that appeals are included, and the respondent landlord, the London Borough of Hackney (Hackney), contends that appeals are excluded.' (paragraph 2)

Sir Geoffrey goes on to set out the factual background to the appeal, including that -

• On 20 December 2019, Hackney issued a claim for possession under CPR Part 55 against Mr Okoro for possession of Room G21, Shuttleworths Hotel, 23-25 Well Street, London E9 7QZ and payment of rent arrears and damages for use and occupation (the 'money claims').
• On 24 January 2020, DDJ Tomlinson made a possession order after a 45-minute hearing. He adjourned the money claims to be heard on 17 March 2020, and refused permission to appeal.
• On 25 February 2020, HHJ Monty granted Mr Okoro permission to appeal the possession order, and stayed it pending the outcome of the appeal.
• On 16 March 2020, the parties agreed a consent order adjourning the hearing of the money claims from 17 March 2020 pending determination of the appeal against the possession order.
• On 27 March 2020, PD 51Z - which introduced a three-month stay on possession proceedings during the COVID-19 pandemic - came into force.
• On 7 May 2020, DJ Swan ordered that 'the case is stayed until 25 June 2020 or such later date as may apply under [PD 51Z] when the Claimant and Defendant may request such further directions as are appropriate, which shall be agreed if possible'.
• On 15 May 2020, HHJ Dight vacated an appeal hearing fixed for 21 May 2020, and transferred the claim to the Chancery Division, directing the parties to exchange and file (in accordance with directions to be given following transfer of the claim) written submissions on the question of the jurisdiction of the appeal court to hear the appeal pending the lifting or expiration of the stay.
• On 15 May 2020, counsel for the parties submitted that the case should be heard by the Court of Appeal rather than the Chancery Division, and should follow the procedure adopted in Arkin, namely a transfer to the Court of Appeal under CPR Part 52.23(1).
• On 18 May 2020, Mr Okoro filed an appellant’s notice contending that HHJ Dight had been wrong (i) not to order a stay of the appeal under CPR Part 52 pursuant to PD 51Z after the decision in Arkin on 11 May 2020, and (ii) to implicitly lift the stay imposed by PD 51Z in order to refer to the High Court the issue of whether PD 51Z imposed a stay on an appeal from a possession order.
• On 19 May 2020, the Chancellor ordered that the appeal brought by the appellant’s notice dated 18 May 2020 be transferred from the High Court to the Court of Appeal for determination pursuant to CPR r 52.23(1)(a) on the grounds that it raised an important point of principle and practice. He also granted permission to appeal for the same reasons.

* * * * *

Giving the court's answer to the question of whether the automatic stay imposed by PD 51Z applies to appeals from possession orders that were extant when the stay began, as much as to first instance possession claims themselves, Sir Geoffrey says that, while the words 'all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession' in paragraph 2 of PD 51Z do not mention appeals -

'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.' (paragraph 25)

Sir Geoffrey adds that the court is reinforced in this view 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 [Hackney's representative] accepted they are, but appeals directed at achieving the same result were not.' (paragraph 26)

As a result, Sir Geoffrey says that -

'... 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.' (paragraph 28)

In conclusion, Sir Geoffrey allows the appeal and orders that the stay imposed by PD 51Z applies to Mr Okoro's appeal from DDJ Tomlinson's order of 24 January 2020, adding that -

'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.' (paragraph 30)