Ms Rosemary Diane Copeland v Bank of Scotland Plc

JurisdictionEngland & Wales
JudgeMr Justice Freedman
Judgment Date04 June 2020
Neutral Citation[2020] EWHC 1441 (QB)
Date04 June 2020
Docket NumberCase No: QA-2019-000014
CourtQueen's Bench Division

[2020] EWHC 1441 (QB)




Royal Courts of Justice

Strand, London, WC2A 2LL


Mr Justice Freedman

Case No: QA-2019-000014

Ms Rosemary Diane Copeland
Bank of Scotland Plc

The Appellant appeared in person

Benjamin Wood (instructed by Eversheds Sutherland (International) LLP) for the Respondent

Hearing dates: 26 th and 27 th February 2020

Approved Judgment

Mr Justice Freedman

I Contents



I Contents


II Introductory matters


III Does CPR 39.3 apply?


IV The History of the Case


V The procedural history


VI The hearing of 1 st November 2018


VII Reasonable prospect of success?


VIII Good reason for absence at trial?


IX Conclusions


X Disposal

II Introductory Matters


This is an application out of time for permission to appeal against an order of Master Davison on 1 st 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 8 th February 2002. It is challenged by the appellant whether there was a mortgage. A possession action was brought on 11 th September 2013. A possession order was made by Master Davison on 6 th August 2018 at a trial at which the appellant did not attend. The decision on 1 st 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 6 th August 2018.


There have been permissible attempts on the part of the respondent, which has been seeking to obtain and enforce a possession order since 2013, to confine the issues. By way of example, it encouraged the Court to rule against the appellant on the basis of failure to file the notice of appeal by the time allowed. Then it sought that the case be decided on the basis of a permission application with no particularly detailed examination of the case. It counselled against allowing too much leeway for the appellant on the basis that (a) she should be limited to an appeal by way of review rather than rehearing, (b) any of her submissions which amounted to evidence not before Master Davison should be rejected, absent an application to admit the same, and having regards to the rule in Ladd v Marshall, and (c) to the extent that she failed to deal adequately with fundamental matters such as any good reason why she was absent at the hearing on 6 th August 2018, the Court should not make allowances. It will be apparent that I have been mindful of the difficulties of the appellant as a litigant in person. I have also not wished this matter with its long and tortuous history to be decided purely on such points. I shall return to these points in the Conclusions.


At the appeal there appeared Mr Benjamin Wood of counsel for the respondent and the appellant in person. The hearing lasted most of 2 days. The first half day was taken up by the sudden and unexpected intervention of the sister of the appellant, namely Ms Elizabeth Watson. She had earlier in February 2020 sought to make an application to intervene and Mr Justice Andrew Baker, sitting in Court 37, adjourned that application to be heard on 26 th February 2020. The reason why it was unexpected was because Mr Justice Andrew Baker required Ms Watson to issue her application by 20 th February 2020 and to serve it on the parties. For reasons which appear in a judgment that I gave on 26 th February 2020, I dismissed the attempt of Ms Watson to intervene and I reserved the question as to whether this was an application which was totally without merit.


The appeal was heard on 26 th and 27 th February 2020, and judgment was reserved in order to prepare and hand down a written judgment, which in the usual way would be preceded by a confidential draft having been supplied to the parties. After that had been sent in draft to the parties, the respondent raised with the Court on 4 th and 5 th May 2020 whether Practice Direction 51Z, “Stay of Possession Proceedings – Coronavirus (“PD 51Z”) applied. PD 51Z was made on 26 th 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 20 th April 2020. On 4 th 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.” By a further email from the solicitors for the respondent to the Court on 5 th May 2020, it was stated that this remained the respondent's position, but reference was made to the case of Arkin v Marshall in which the Court of Appeal had reserved consideration of PD 51Z. One suggestion was that the Court might wish to consider the impact of the reserved judgment in Arkin v Marshall on the instant appeal. That was a helpful suggestion in that it allowed this Court to consider its impact as well as the impact of another case which followed.


On 11 th May 2020, the Court of Appeal handed down judgment in Arkin v Marshall [2020] EWCA Civ 620. It rejected a contention that PD 51Z was ultra vires. It said that it provided a blanket stay on possession proceedings. It imposes a temporary stay 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 (paragraph 28). There is a power under CPR 3.1 to stay proceedings where it thinks it fit to do so, and “the power to impose a stay necessarily includes the power to lift it” (paragraph 39). The Court of Appeal stated that PD 51Z did not formally exclude the operation of CPR part 3.1 (paragraph 42). As a matter of strict jurisdiction, a judge retains the power to lift the stay which PD 51Z imposes. However, the proper exercise of that power is informed by the nature of the stay and the purposes for which it was evidently imposed. The purpose identified was that during the 90-day period the burden on judges and staff in the County Court of having to deal with possession proceedings would be lifted, and also that the risk to public health of proceeding with evictions would be avoided. Since the purpose is of its nature blanket in character, it would be undermined if it could be avoided in the particular circumstances of particular cases. Thus, the Court of Appeal had great difficulty in envisaging a case where it could be lifted.


The question has arisen as to whether PD 51Z applied to appeals in respect of decisions in respect of possession matters. In a different case, 27 th May 2020, the Court of Appeal gave judgment in the case of London Borough of Hackney v Okoro [2020] EWCA Civ 681. It stated that PD 51Z applied to appeals in possession proceedings up to the Court of Appeal. It would follow that had this appeal been due to be heard after PD 51Z came into being, this appeal would be stayed. However, all that remains is for the reserved judgment to be handed down. 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.


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.

III Does CPR 39.3 apply?


It was not clear whether CPR 39.3, which enables the court to proceed with ‘a trial’ in the absence of a party, applied. Like the Master, I have come to the view that it does apply either directly or by way of analogy. The Master did not explain why it did apply, notwithstanding that he had said in his direction of May 2018 that the next hearing would be a disposal hearing rather than allocating the case to a particular track for trial. He may have had in mind that as a result of failing to serve a defence, the scope for the appellant to take issue with the account of the respondent was so limited that it could not be described as a trial.


The rule CPR 39.3, which enables the party who does not attend the trial to apply for the judgment or order to be set aside, includes the following:

“….(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(4) An application under paragraph…(3) must be supported by evidence.

(5) Where an application is made under paragraph ….(3) by a party who failed to attend the trial, the court...

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3 cases
  • TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 July 2020
    ...difficulty in envisaging such a case”. 36 I should mention in passing the decision of Freedman J in Copeland v. Bank of Scotland plc [2020] EWHC 1441 (QB) at [4]–[7], where he lifted the stay for the purposes of delivering a reserved judgment and making consequential orders in a case where......
  • Bromford Housing Association Ltd v Mr Kevin Nightingale
    • United Kingdom
    • Queen's Bench Division
    • 7 October 2020
    ...8 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 pos......
  • Bromford Housing Association Ltd v Mr Kevin Nightingale
    • United Kingdom
    • Queen's Bench Division
    • 12 June 2020
    ...2020. 5 Yesterday, the parties helpfully drew my attention to the judgment of Freedman J in Copeland v Royal Bank of Scotland plc [2020] EWHC 1441 (QB), which was handed down on 4 June 2020. The parties were in agreement that this case was in relevant to the present case and asked that it ......

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