London Borough of Hackney v Kevin Okoro
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos |
| Judgment Date | 27 May 2020 |
| Neutral Citation | [2020] EWCA Civ 681 |
| Date | 27 May 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Appeal No: A3/2020/0718 |
[2020] EWCA Civ 681
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the County Court sitting at Central London
HH Judge Dight CBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Geoffrey Vos, CHANCELLOR OF THE HIGH COURT
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
and
Lady Justice Simler
Appeal No: A3/2020/0718
Case No: F04EC791
Mr Stephen Knafler QC and Mr Timothy Baldwin (instructed by Mr Nathaniel Mathews of Hackney Community Law Centre) for the Appellant
Mr Michael Paget (instructed by The London Borough of Hackney) for the Respondent
Hearing date: 21 st May 2020
Sir Geoffrey Vos, Chancellor of the High Court, delivering the judgment of the court:
Introduction
This 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”). We will not repeat the history of PD 51Z which is set out in detail in our judgment in Arkin.
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.
It is useful to recite at the outset the amended terms of PD 51Z, which came into effect on 27 March 2020, and was amended with effect from 20 April 2020, as follows:-
“This Practice Direction supplements Part 51
1. This practice direction is made under rule 51.2 of the [CPR]. It is intended to assess modifications to the rules and [PDs] that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.
2. Subject to paragraph 2A, 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 are stayed for a period of 90 days from the date this Direction comes into force.
2A. Paragraph 2 does not apply to—
(a) A claim against trespassers, to which rule 55.6 applies;
(b) An application for an interim possession order under section III of Part 55, including the making of such an order, the hearing required by rule 55.25(4), and any application made under rule 55.28(1); or
(c) An application for case management directions which are agreed by all the parties.
3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2, and the fact that a claim to which paragraph 2 applies will be stayed does not preclude the issue of such a claim”.
Mr Okoro's argument was simply that the expressed purpose of PD 51Z, as it was held to be in Arkin, makes it inevitable that appeals should be included to protect public health and ensure that the courts are not overwhelmed during the pandemic. Hackney submitted that PD 51Z does not even apply to all claims under CPR Part 55, because consent orders for case management directions and actions against trespassers are excluded. Moreover, the “proceedings for possession” under CPR Part 55 cease when a possession order is made, and the appeal process is entirely governed by CPR Part 52, so putting it outside the terms of PD 51Z.
Mr Stephen Knafler QC, leading counsel for Mr Okoro, submitted that at least 5 other types of possession order can be made outside CPR Part 55, namely (i) an order for possession made under CPR Part 73.10C, paragraph 4.5 of PD 73, and appendix A as part of enforcing a charging order, (ii) an order for delivery up of possession of land under CPR Part 40.17 in giving effect, in particular, to trusts of land, (iii) an order in favour of a trustee in bankruptcy under section 363 of the Insolvency Act 1986 requiring a bankrupt and their family to deliver possession of property, (iv) an order against a spouse or partner requiring delivery of possession under schedule 7 of the Family Law Act 1996, and orders under paragraph 9.24 of the Family Procedure Rules, and (v) health and safety remedies requiring possession under sections 270 and 338 of the Housing Act 1985.
These other types of possession orders were referred to in an attempt to understand why PD 51Z had referred specifically to “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” but not to other types of possession proceedings, nor to appeals. Mr Knafler submitted that there were two possibilities:
i) First, that “proceedings for possession brought under CPR Part 55” end with a final unappealable order for possession, and enforcement is mentioned separately because it is achieved under CPR Part 83. He acknowledged, however, that the reference to enforcement would not have been needed as regards the stay of proceedings brought under CPR Part 55, because a stay of the proceedings would stay any final order for possession.
ii) Secondly, that the reference to enforcement was required to prevent the enforcement of the 5 other species of possession order made outside CPR Part 55.
Either way, submitted Mr Knafler, appeals were included in the stay, because the proceedings for possession were stayed and those proceedings were not concluded until the final appeal determined whether there was or was not to be a possession order.
Mr Michael Paget, counsel for Hackney, reinforced his argument that appeals are dealt with under CPR Part 52 by pointing out that appeals to the Supreme Court are dealt with under that Court's own rules, and are outside the jurisdiction of the Master of the Rolls, so that they could certainly not be covered by the stay imposed by PD 51Z.
Factual background
Little of the factual background to this particular case is relevant to the resolution of the question we have explained. It is worth, however, briefly explaining the route by which the case reached its hearing before us.
On 20 December 2019, Hackney issued a claim for possession...
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