TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lady Justice Asplin,Lord Justice Arnold |
| Judgment Date | 02 July 2020 |
| Neutral Citation | [2020] EWCA Civ 833 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Appeal No: A3/2019/2049 Claim No. PT-2018-000035 |
| Date | 02 July 2020 |
[2020] EWCA Civ 833
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
PROPERTY, TRUSTS AND PROBATE LIST
HHJ DAVIS-WHITE QC sitting as a deputy judge of the High Court
Royal Courts of Justice
The Rolls Building
London, EC4A 1NL
Sir Geoffrey VOS, CHANCELLOR OF THE HIGH COURT
Lady Justice Asplin
and
Lord Justice Arnold
Appeal No: A3/2019/2049
Claim No. PT-2017-00099
Claim No. PT-2018-000035
Ms Joanne Wicks QC and Mr Mark Galtrey (instructed by DLA Piper) for the Appellants/Tenants
Mr Wayne Clark and Mr Joseph Ollech (instructed by Shoosmiths LLP) for the Respondents/Landlords
Hearing date: 24 June 2020
Sir Geoffrey Vos, Chancellor of the High Court:
Introduction
This is the third in a rapid succession of Court of Appeal cases concerning the effect of the automatic stay imposed by Practice Direction 51Z (“PD 51Z”), which originally came into force on 27 March 2020, and was amended with effect from 20 April 2020. The first was Arkin v. Marshall [2020] EWCA Civ 620 (“ Arkin”), in which the court gave judgment on 11 May 2020. The second was London Borough of Hackney v. Okoro [2020] EWCA Civ. 681 (“ Okoro”), in which judgment was delivered on 27 May 2020. This case was listed for the hearing of the substantive appeal just 4 weeks later on 24 June 2020.
Coincidentally, the stay imposed by PD 51Z was due to expire on 25 June 2020, the second day of the hearing. But the Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020 (the “2020 Rules”) introduced a new CPR Part 55.29, which extended the stay from its expiry until 23 August 2020.
The substantive appeal listed before us was an appeal against an order made by HHJ Davis-White QC sealed on 18 July 2019 (the “Order”) in two actions concerning 6 separate tenancies. The tenant is the same for each, but the landlords are different. The judge declared that the 6 leases in issue in the two actions were properly and lawfully excluded from the protections in sections 24–28 of the Landlord and Tenant Act 1954 (the “1954 Act”), and made possession orders against the tenant of two properties in the first action numbered PT-2017-000099 (the “first action”), and against the tenant in respect of 3 of the 4 properties in the second action numbered PT-2018-000035 (the “second action”). The tenant trades as the Fragrance Shop from each of the premises in question, though it has, of course, not been able to do so for much of the period of lockdown. The detailed background can be seen from the judge's judgment at [2019] EWHC 1363 (Ch).
The form of each of the two actions is important to what we have to decide.
The tenant issued the first action on 3 November 2017 claiming a declaration that the tenancies had not been validly excluded from the protection of the 1954 Act, and an injunction preventing the landlord from taking possession. The landlords counter-claimed for possession in the first action.
The landlords issued the second action on 11 January 2018 claiming a declaration that the tenancies were not protected by the 1954 Act, rather than possession because the terms had not then expired. By the time of the judge's judgment, however, the terms of three of the four tenancies had expired, and the parties agreed thereafter that there should be orders for possession to give effect to the decision that the judge had made. The landlords' claim was, however, never formally amended to claim possession.
Arnold LJ granted the appellant tenant in both actions permission to appeal from the judge's decision on 8 November 2019.
Against this background, the tenant first applied by letter dated 26 May 2020 to adjourn the hearing of the appeal fixed to commence on 24 June 2020 on the grounds of hardship caused by the COVID-19 pandemic. After the decision in Okoro, the tenant wrote again on 29 May 2020 contending that the appeal was automatically stayed under PD 51Z.
On 10 June 2020, Lewison LJ refused the tenant's applications on paper for the following reasons:-
“I do not consider that the automatic stay under PD51Z applies to this appeal. [PD 51Z] is restricted to “proceedings for possession brought under CPR Part 55”. [ Okoro] decides that “proceedings brought under CPR Part 55” includes appeals, but does not otherwise expand the scope of [PD 51Z]. The court emphasised that what was important was how the proceedings were initiated. According to the report of [HHJ Davis-White's decision in this case] the claim was brought by Part 7 claim: not under Part 55. If, as is suggested the possession claim was made by way of counterclaim, that would not have required separate initiation under Part 55.
The guidance given by the CA in Re Children (Remote Hearing: Care and Placement Orders) [ [2020] EWCA Civ 583] was principally concerned with [a] hearing at which evidence would be given. In the present case (a) there will be no evidence (b) the parties are legally represented (c) the hearing is not a long one (d) there is adequate technology to enable the parties to attend remotely if they wish to, although their attendance is not required (d) if the press wish to attend they can do so remotely (e) the court is now used to conducting appeals remotely (f) preparation for the hearing is at an advanced stage (g) it appears that the stores will be reopening (or at least be permitted to reopen) from 15 June (h) there is significant prejudice to the landlord in further delay (i) the hearing date was listed in December 2019; lockdown has been in place for nearly three months, yet this application has only just been made (j) if the adjournment were granted the hearing date would be lost; there would be inadequate time to replace it in the court list and there may be significant further delay in relisting”.
The tenant submits that Lewison LJ was wrong to hold that PD 51Z did not apply to these appeals. If the court accepted that submission, Ms Joanne Wicks QC, leading counsel for the tenant (leading Mr Mark Galtrey), contended that the court should not lift the stay so as to enable the substantive appeals to proceed. She relied, in particular, on Arkin at [42] where the court had said:-
“In our view PD 51Z cannot be read as formally excluding the operation of CPR [Part] 3.1. As a matter of strict jurisdiction, therefore, a judge retains the power to lift the stay which it imposes. But the proper exercise of that power is informed by the nature of the stay and the purposes for which it was evidently imposed. PD 51Z imposes a general stay on proceedings of the kind to which it applies, initially subject to no qualification at all, and subsequently qualified only in the limited and specific respects provided for in paragraph 2A. The purpose was that during the 90-day period the burden on judges and staff in the County Court of having to deal with possession proceedings, which are an immense part of its workload, would be lifted, and also that the risk to public health of proceeding with evictions would be avoided. That purpose is of its nature blanket in character and does not allow for distinctions between cases where the stay may operate more or less harshly on (typically) the claimant. It would be fatally undermined if parties affected by the stay were entitled to rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case. Thus, while we would not go so far as to say that there could be no circumstances in which it would be proper for a judge to order that the stay imposed by PD 51Z should be lifted in a particular case, we have great difficulty in envisaging such a case. The only possible such case canvassed before us was where the stay would operate in such a way as to defeat the purposes of PD 51Z and endanger public health”.
Mr Wayne Clark (leading Mr Joseph Ollech), counsel for the respondent landlords, relied on [25] in Okoro where the court said this:-
“In our judgment, however, the words of paragraph 2 of PD 51Z are broader than Mr Paget submitted. They stay “all proceedings for possession brought under CPR Part 55”. We have emphasised the word “brought”, because it focuses on how the proceedings were initiated. As a matter of ordinary language, we think that proceedings brought under CPR Part 55 are still “brought under CPR Part 55”, even when they are under appeal. It is true that the procedure governing the appeal is contained in CPR Part 52, but the proceedings remain proceedings brought under CPR Part 55”.
His point was that neither action was “brought” under CPR Part 55. The first action was an action by the tenants for a declaration as to the application of the 1954 Act, with a free-standing counterclaim for possession. CPR Part 20.3(1) provided that “[a]n additional claim shall be treated as if it were a claim for the purposes of these Rules …”. The second action was a claim by the landlord for declarations only. The proceedings were never amended to claim possession, even if the parties agreed that such an order should be made to give effect to the judgment. Delay would...
To continue reading
Request your trial
-
South Lodge Flats Ltd v Vaqar Malik
...place. On 2 July 2020 this court gave judgment in TFS Stores Ltd v The Designer Retails Outlet Centres (Mansfield) General Partner Ltd [2020] EWCA Civ 833, [2020] 4 WLR 99. By a majority, this court gave an expansive reading to the scope of PD 51Z. They held that, although PD 51Z stated t......
-
TFS Stores Ltd v The Designer Retail Outlet Centres (mansfield) General Partner Ltd
...JUSTICE BUSINESS AND PROPERTY COURTS PROPERTY, TRUSTS AND PROBATE LIST (Ch) HHJ Davis-White QC (sitting as a judge of the High Court) [2020] EWCA Civ 833 Royal Courts of Justice Strand, London, WC2A 2LL Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties'......
-
COVID-19 Real Estate: Court Of Appeal Re-Examines PD51Z And Claims For Possession Brought Under CPR Part 55
...Centres (Mansfield) General Partner Ltd and others; BMG (Ashford) Ltd and others v TFS Stores Ltd Court of Appeal, Civil Division [2020] EWCA Civ 833 PD51Z (now CPR As a result of the COVID-19 pandemic, Practice Direction 51Z (PD51Z) granted a stay of claims for possession and enforcement a......