High Court considers whether it can hand down a reserved judgment, in a case heard during coronavirus stay on possession proceedings, before the stay is lifted

Bromford Housing Association Ltd v Nightingale & Anor [2020] EWHC 1532 (QB)

In a new judgment, the High Court has considered whether it can hand down a reserved judgment, in a case heard during the coronavirus (COVID-19) stay on possession proceedings, before the stay is lifted.

In Bromford Housing Association Ltd v Nightingale & Anor [2020] EWHC 1532 (QB) (12 June 2020), Mr Justice Cavanagh heard a rolled-up application for permission to appeal a housing possession case on 28 April 2020, with an appeal to follow if permission was granted.

Having reserved judgment, Mr Justice Cavanagh issued a ruling on 28 May 2020 about the timing of further steps in the appeal, including the hand-down of his judgment, in light of the stay on possession proceedings in Practice Direction 51Z: Stay of Possession Proceedings - Coronavirus (PD 51Z) and the judgments of the Court of Appeal in Arkin v Marshall [2020] EWCA Civ 620 and London Borough of Hackney v Okoro [2020] EWCA Civ 681.

Mr Justice Cavanagh ordered that -

• judgment would not be handed down until after the stay imposed by PD 51Z (at that time imposed until 25 June 2020 but now extended to 23 August 2020 by SI.No.582/2020) is lifted; and
• the parties would be given 14 days from the lifting of the stay to lodge any further written submissions.

Subsequently, the judgment of Freedman J in Copeland v Royal Bank of Scotland plc [2020] EWHC 1441 (QB) - concerning an application for permission to appeal against a refusal to set aside a possession order that took place in February 2020 (i.e. before PD 51Z was issued) where Freedman J decided to lift the PD 51Z stay under CPR 3.1 for the narrow purpose of issuing the reserved judgment and making consequential orders - was brought to the attention of Mr Justice Cavanagh as having a potential bearing on the present case.

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Considering whether, in light of Copeland, the order made on 28 May 2020 should be amended, Mr Justice Cavanagh decides not to do so, holding that -

‘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.’ (paragraph 7)

In addition, Mr Justice Cavanagh says that the practical effect of leaving the order of 28 May 2020 in place was 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.’ (paragraph 8)