COVID-19 – application of Practice Direction 51Z to appeals: Okoro v London Borough of Hackney
In this bulletin, Francis Ng explains yesterday’s decision of Court of Appeal in London Borough of Hackney v Okoro  EWCA Civ 681. Following on from the Court of Appeal’s previous decision in Arkin v Marshall, this case establishes that Practice Direction 51Z applies to appeals from possession orders made in proceedings brought under CPR Part 55. All such appeals are therefore stayed for 90 days from 27 March 2020.
Mark Warwick QC
BACKGROUND: PRACTICE DIRECTION 51Z
Our earlier bulletins have already discussed PD51Z, its recent amendment , and the Arkin judgment. They are therefore only described here in brief.
PD51Z was introduced on 27 March 2020 staying all possession proceedings brought under CPR Part 55 and proceedings to enforce possession orders by warrant or writ of possession for 90 days (ie until and including 24 June 2020, though the date may be extended).
Following concerns raised by the Property Bar Association and Property Litigation Association, it was then amended on 18 April 2020 to ‘clarify’ that it did not apply to claims against trespassers within r 55.6 CPR, applications for interim possession orders, or applications for case management directions which were agreed by all of the parties.
In Arkin v Marshall, the Court of Appeal confirmed that PD 51Z was not ultra vires in its current form and that the stay would only be lifted in extreme circumstances (possibly confined to cases where public health was in danger).
THE FACTS OF LONDON BOROUGH OF HACKNEY V OKORO
Okoro was a possession claim issued under CPR Part 55 by the London Borough of Hackney on 20.12.2019. On 24.01.2020, DDJ Tomlinson made a possession order, refused permission to appeal, and adjourned a related money claim. On 25.02.2020, HHJ Monty QC granted Mr Okoro permission to appeal. The appeal was listed for 21.05.2020 in the County Court at Central London.
PD51Z then came into force on 27.03.2020. On 15.05.2020, HHJ Dight CBE vacated the appeal hearing, transferred the claim to the Chancery Division and directed the parties to file submissions on the question of the jurisdiction of the appeal court to hear the appeal during the stay. On 18.05.2020, Mr Okoro filed an appellant’s notice arguing that HHJ Dight CBE was wrong (i) not to order a stay of the appeal pursuant to PD51Z and (ii) to implicitly lift it by referring the issue of whether the appeal was stayed to the Chancery Division. On 19.05.2020, the Chancellor granted permission to appeal and ordered that the appeal be transferred to the Court of Appeal under r 52.23(1)(a) CPR.
The sole question for the Court of Appeal was therefore whether the stay in PD51Z applied to appeals from possession orders made in proceedings brought under CPR Part 55. If so, it was agreed that HHJ Dight CBE had no power to make his order.
DECISION OF THE COURT OF APPEAL
The appeal was allowed by the Court of Appeal (Vos C, Underhill LJ, and Simler LJ), holding that PD 51Z does apply to appeals. Vos C delivered the judgment of the Court. The reasoning proceeded in four steps:
- First, they noted that 138,000 possession claims are brought each year in the County Court, the implication being that there were a large number of appeals (the court did not have statistics but noted that applications to set aside possession orders under r 39.3(3) CPR were ‘not uncommon’). Meanwhile, many defendants were vulnerable and unrepresented, only realising that they needed to act late in the day.
- Secondly, the court noted the purpose of PD 51Z, which had already been considered in Arkin. This was to save court staff and judges from having to deal with possession proceedings (an immense part of their workload) and to avoid the risk to public health of proceeding with evictions. The purpose, by its nature, is ‘blanket in character’.
- Thirdly, the court considered the wording of PD 51Z which imposes the stay on ‘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’. They accepted that, technically, appeals are brought under CPR Part 52 rather than CPR Part 55. However, the stay applied to all proceedings for possession ‘brought’ under CPR Part 55, which the court felt indicated a focus on how the proceedings were initiated. They therefore held that ‘[a]s 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 5, but the proceedings remain proceedings brought CPR Part 55.’
- Fourthly, the Court stated that they were reinforced in this view by the purpose of PD 51Z. The objective of managing court capacity would be furthered just as much by staying appeals as by staying first instance proceedings. Moreover, it would be odd if applications to set aside a possession orders (ie under rr 3.1(7) or 39.3 CPR) were stayed, but that appeals (which were directed at achieving the same result) were not.
PD 51Z stays ‘proceedings brought under CPR Part 55’ and ‘all proceedings seeking to enforce an order for possession by a warrant or writ of possession’ enforcement. One of the issues which had been canvassed was why separate provision had been made (if the possession order itself were stayed, enforcement of that order would be stayed). Mr Okoro suggested that this was to ensure that possession orders made outside CPR Part 55 (ie orders to enforce a charging order, for delivery up of land under r 40.17 CPR, orders in favour of trustees in bankruptcy under s 363 Insolvency Act 1985, and orders against a spouse or partner under the Family Law Act 1996) would also be covered. The Court did not think it necessary to consider why PD51Z applied to enforcement as well. However, they gave the dictum that ‘[w]hatever the thinking behind it, paragraph 2 of PD 51Z undoubtedly prevents enforcement of possession orders made under rules other than CPR Part 55.’
In arguing that, properly construed, PD 51Z was not intended to apply for appeals, counsel for Hackney had pointed out that it could not have covered appeals to the Supreme Court because they are dealt with by that court’s own rules and are outside the Master of Rolls’ jurisdiction. The court agreed that appeals to the Supreme Court could not be stayed. This, however, was not because of the wording of PD 51Z, but because the Master of the Rolls had no jurisdiction to make Practice Directions affecting appeals to the Supreme Court.
All appeals from orders in Part 55 possession proceedings are therefore themselves stayed by PD 51Z. This is unsurprising, given the decision in Arkin to read PD 51Z as having a ‘blanket’ nature. It is also unsurprising that the Court of Appeal have stated (albeit in dicta) that attempts to enforce possession orders not made under Part 55 are stayed. This is in keeping with the wording of PD 51Z and is very unlikely not to be followed by the courts.
However, it will undoubtedly be frustrating for many litigants anxious to see their proceedings resolved, and for landlord and tenant lawyers – important questions about possession proceedings which can only be answered by the Court of Appeal will have to remain unanswered until the stay is lifted. It remains to be seen whether the public interest in clarifying important questions of law might justify lifting the stay, but this seems unlikely given the view in Arkin that it would ‘almost always be wrong in principle’ to lift it, at least in the absence of danger to public health. It also remains to be seen whether the court will decline to hand down judgments in stayed appeals which have already been heard.
A more abstract question which arises from Okoro is whether the Court of Appeal should have heard Arkin or Okoro at all, given they were both appeals in possession proceedings brought under CPR Part 55 and were therefore themselves subject to the stay. The answer appears to be that there is some implied exception enabling appeals to be heard if they are themselves about the terms of the stay, or perhaps the fact that the case concerns the stay is an exceptional circumstance which justifies lifting it, or perhaps all courts have an inherent or implied jurisdiction to determine whether or not proceedings before them are stayed.