High Court hands down reserved judgment on appeal that was heard before COVID-19-related stay on possession proceedings took effect, subject to provisos on staying possession order and extending time limits for appeal

Copeland v Bank of Scotland Plc [2020] EWHC 1441 (QB)

In a new judgment, the High Court has handed down a reserved judgment on an appeal against a possession order that was heard before Practice Direction 51Z: Stay of Possession Proceedings - Coronavirus (PD 51Z) came into force, subject to provisos on staying the possession order and extending time limits for appeal while PD 51Z remains in force.

Introducing the court's judgment in Copeland v Bank of Scotland Plc [2020] EWHC 1441 (QB) (04 June 2020), Mr Justice Freedman says that -

'This is an application out of time for permission to appeal against an order of Master Davison on 1st November 2018, and, if permission is given, with the appeal to follow. The case concerns a complex and convoluted history which goes back to a mortgage dated 8th February 2002. It is challenged by the appellant whether there was a mortgage. A possession action was brought on 11th September 2013. A possession order was made by Master Davison on 6th August 2018 at a trial at which the appellant did not attend. The decision on 1st November 2018, against which the appellant appeals, was a refusal to accede to an application to set aside the possession order being made at the hearing of 6th August 2018.' (paragraph 1)

Mr Justice Freedman goes on to say that the appeal was heard on 26 and 27 February 2020, with judgment reserved in order to prepare and hand down a written judgment, and that -

'After that had been sent in draft to the parties, the respondent raised with the Court on 4th and 5th May 2020 whether [PD 51Z] applied. PD 51Z was made on 26 March 2020 in response to the COVID-19 pandemic which came into force on the following day, and the amended version which came into force on 20th April 2020. On 4th May 2020, the respondent's Counsel stated that 'It would be the respondent's position that the Practice Direction does not prevent the handing down of judgment or the making of a consequential order, provided that – as is proposed in the draft order – no steps are taken by either party during the stay period.'' (paragraph 4)

In addition, Mr Justice Freedman highlights that -

• on 11 May 2020, the Court of Appeal ruled, in Arkin v Marshall [2020] EWCA Civ 620, that the three month stay on possession proceedings imposed by PD 51Z is not unlawful; and
• on 27 May 2020, the Court of Appeal ruled, in London Borough of Hackney v Okoro [2020] EWCA Civ 681, that PD 51Z applies to appeals in possession proceedings up to the Court of Appeal.

Mr Justice Freedman notes that, as a result of the judgment in Okoro, had the present appeal been due to be heard after PD 51Z came into being, the appeal would be stayed. However, all that remained in this case was for the reserved judgment to be handed down, and Mr Justice Freedman says that -

'In my judgment, it is undesirable in this case, when following a heavily contested appeal, where there is a reserved judgment ready to be handed down following extensive preparation, to postpone hand-down of the judgment until such time as PD 51Z ceases to have effect. That may be towards the end of June, or it may be much later if PD 51Z is extended thereafter. This is not intended to inform any other Court about what to do in connection with a reserved judgment in another case: it is a course of action taken by reference only to the circumstances of this case.' (paragraph 6)

Mr Justice Freedman also says that -

'It is important that the hand-down of the judgment does not have an effect inimical with PD 51Z. In the event of the appeal being dismissed, there should be the following provisos, namely (a) that any possession order must be stayed under PD 51Z for however long PD 51Z applies, and (b) an extension of time to apply for permission to bring a second appeal until after PD 51Z has ceased to apply would preserve the purpose of PD 51Z. In my judgment, the stay should be lifted pursuant to CPR 3.1 for the very narrow purpose of issuing the reserved judgment and making a consequential order, but subject to these provisos.' (paragraph 7)

* * * * *

Having set out detailed findings on the case, Mr Justice Freedman grants the appellant permission to appeal. However, having considered all the arguments raised by the appellant in relation to that appeal, he concludes that -

'... in my judgment, the decision of the Master was not wrong nor was there a serious procedural or other irregularity in the proceedings before him giving rise to any injustice. Accordingly, the appeal must be dismissed, but subject to the provisos referred to at paragraph 7 above.' (paragraph 98)