Bromford Housing Association Ltd v Mr Kevin Nightingale
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh,Hedley |
| Judgment Date | 07 October 2020 |
| Neutral Citation | [2020] EWHC 2648 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: BM00027A |
| Date | 07 October 2020 |
[2020] EWHC 2648 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM APPEALS CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cavanagh
Case No: BM00027A
and
David Renton (instructed by Shelter Legal Services) for the Appellants
Aadhithya Anbahan (instructed by GC Law) for the Respondent
Hearing dates: 28 April 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is my judgment following the rolled-up application for permission to appeal in this case by the Appellants/Defendants.
This appeal arises in possession proceedings that have been brought by the Claimant against the Defendants. The appeal is against an order made on 24 February 2020 by HHJ Hedley, sitting with an assessor, at the Northampton County Court, in which the Defendants were refused permission to rely upon a witness statement, also dated 24 February 2020, of Ms Babra Ushewekunze, Housing Options Officer for South Northamptonshire Council, at the final hearing of the possession proceedings. At the 24 February 2020 hearing, the final hearing was listed to take place over four days beginning on 4 May 2020, but that hearing was adjourned as a result of the stay that has been in place for possession proceedings.
As is customary in rolled-up appeals, I invited counsel to make submissions both about whether there should be permission to appeal, and on the substantive appeal if permission is granted. The order for a rolled-up hearing was made by Andrews J on 9 March 2020.
I will refer in this judgment to the Appellants as the Defendants, and to the Respondent as the Claimant. The Defendants have been represented by Mr David Renton, and are supported by Shelter. The Claimant Housing Association has been represented by Ms Aadhithya Anbahan. Both counsel appeared below. I am grateful to them for their helpful submissions, both oral and in writing.
This judgment has had a long gestation period. On 28 April 2020, I heard oral argument. The hearing before me took place remotely via Skype for Business. At the time of the hearing, counsel and I were aware of the stay on proceedings for possession, which had been imposed in response to the Covid-19 Pandemic. This stay was imposed by CPR PD 51Z on 26 March 2020, and was initially imposed for 90 days. No application was made in advance of the hearing of this appeal for its adjournment, but I heard oral submissions at the start of the hearing on whether I should adjourn the hearing and I decided not to do so. At that time, I took the view that the stay did not apply to an appeal such as this which, whatever its outcome, would not lead without more to an order for possession. Therefore, I proceeded to hear argument from the parties' representatives. However, Mr Renton, counsel for the Defendants, drew my attention to the fact that a hearing was listed for a few days' time in the Court of Appeal which was to deal with the scope of the stay that was imposed by PD 51Z. I therefore decided to reserve my judgment, on the basis that I would invite further submissions on whether to proceed to deliver my judgment whilst the stay in PD 51Z was in force, after the Court of Appeal had handed down its judgment. This was in accordance with a proposal that had been made by both parties' counsel.
In the event, the Court of Appeal handed down two relevant judgments shortly after the hearing in this matter on 28 April 2020, the second of which made absolutely clear that my initial view had been wrong, and that the stay on possession proceedings imposed by PD 51Z applied to appeals to such as this. The judgments are Arkin v Marshall [2020] EWCA Civ 620, handed down on 11 May 2020, and London Borough of Hackney v Okoro [2020] EWCA Civ 681, which was handed down 27 May 2020.
In light of these judgments, I handed down a ruling on 27 May 2020 in which I said that I would not hand down judgment in this appeal until after the stay was lifted, and that the parties would be given 14 days from the lifting of the stay to lodge any further written submissions, or to apply for a further oral hearing, or to indicate to the court that they did not intend to make any further submissions.
Then, in June 2020, the parties helpfully drew my attention to the judgment of Freedman J in Copeland v Royal Bank of Scotland plc [2020] EWHC 1441 (QB). In Copeland, the oral argument in a possession appeal took place in February 2020, before PD 51Z was issued and before the stay on possession proceedings was imposed, but the judgment had not been handed down at the time when the stay came into force. Freedman J decided to lift the stay under CPR 3.1 for the narrow purpose of issuing the reserved judgment and making consequential orders, but also ordered that any possession order would be stayed under PD 51Z, for however long PD 51Z applies, and that he would grant an extension of time to bring a second appeal until after PD 51Z had ceased to apply. The parties did not invite me to do what Freedman J had done, but, very properly, considered that the judgment in Copeland should be drawn to my attention. In a short further ruling dated 12 June 2020, [2020] EWHC 1532 (QB), I decided that I should not lift the stay so as to issue the judgment on this appeal, but that I should follow the course of action that I had set out in my ruling on 27 May 2020. The present case is different from the Copeland case, in that Copeland was an appeal against a possession order made at a final hearing. In the present case, the appeal is not against an order for possession. I have taken the view (explained in greater detail in my rulings on 27 May and 12 June 2020) that the spirit and purpose of PD 51Z, and the overriding objective, would best be met if I delayed the hand-down of my judgment until after the stay had been lifted, provided that I gave the parties the opportunity to make further submissions after the stay had come to an end. No sensible purpose would be served by pretending that oral argument had not taken place in April 2020, or by putting the parties to the extra and unnecessary expense of having a second hearing so that they could repeat the same submissions they had already made at the April hearing. Both parties have made clear that they agree that this would serve no useful purpose. The practical effect of my ruling is the same as the practical effect of Copeland.
In the event, the stay that was imposed on 26 March 2020 was extended several times, and was finally lifted on 20 September 2020. Since then, Mr Renton has provided the court with a short further skeleton argument in which he provided an update about the proceedings. He has also indicated that the Defendants do not apply for a further oral hearing to take place. Ms Anbahan has indicated that the Claimant does not wish to make any further submissions. In those circumstances, there is no reason for me to delay the hand-down of this judgment any further.
It is worth adding that, although, for the reasons set out above, there has been a delay of over five months between oral argument and judgment, this has not caused any difficulty or inconvenience for the parties. The appeal is concerned with whether a particular witness statement can be given in evidence at the final hearing of the possession proceedings. As a result of the stay in PD 51Z, there was no possibility that the final hearing would take place at any stage over the last five months. Indeed, Mr Renton's skeleton argument informs me that no trial date has yet been set. A directions hearing has been listed for 30 October 2020, but the Defendants' representatives believe that this is likely to be adjourned. Whether it is adjourned or not, given the number of possession actions that have been stayed and now need to be dealt with, it may be some time before the final hearing can take place.
The issue in this appeal
The Claimant is pursuing possession proceedings against the Defendants. The Claimant seeks to evict the Defendants and their children because of alleged antisocial behaviour, mainly but not exclusively on the part of the Defendants' children.
The hearing of the possession proceedings came on before HHJ Hedley and a lay assessor at Northampton County Court on 24 February 2020. In the event, the hearing was adjourned by the Judge because he took the view that there was insufficient time to deal with the matter. However, at the hearing on 24 February, the Judge considered an application by the Defendants to rely upon a witness statement, dated the same day, from Ms Babra Ushewekunze, Housing Options Officer for South Northamptonshire Council. Ms Ushewekunze had attended the hearing on 24 February as an observer and, following a conversation with the Defendants' legal advisers, had provided them with a short handwritten witness statement.
The application to rely upon the witness statement took the form of an application for relief for sanctions, pursuant to CPR 3.9, on the basis that the statement had been served at the hearing and so after the deadline for exchange of witness statements.
HHJ Hedley refused to grant relief from sanctions, and so declined to permit the Appellants to rely on the witness statement. The Defendants seek permission to appeal against this decision.
At the hearing on 24 February 2020, as I have said, the court relisted the final hearing of the possession proceedings, and ordered that the hearing should begin on 4 May 2020, with a time estimate of four days. In the event, as a result of the stay of possession proceedings, this hearing did...
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