In this issue of Selborne Chambers’ weekly COVID-19 Bulletin, Sarah Walker considers the repercussions of the recent decision in Trecarrell House Limited v Rouncefield  EWCA Civ 760, whilst Tom Frazer looks at some of our members’ recent experiences of possession claims under COVID and the discussion of PD 51Z in Copeland v Bank of Scotland  EWHC 1441 (QB).
Should you wish to discuss any of these topics, or raise any other queries, do not hesitate to contact either the clerking team (+44 (0)20 7420 9500 or email@example.com) or any member of Chambers. As ever, we remain fully operational and are very much open for business.
Mark Warwick QC
Trecarrell House Limited v Rouncefield  EWCA Civ 760
The most important aspect of this recent Court of Appeal decision is that it held (2 to 1) that a landlord’s failure to provide a gas safety certificate before its tenant went into occupation did not permanently preclude that landlord from serving a valid s.21 Notice – a valid notice could be served provided a certificate was provided prior to service of the notice.
The new decision overturns the previous decision of HHJ Luba QC in Caridon Property Limited v Shooltz (2 February 2018), in which he held that if regulation 36(6)(b) the Gas Safety (Installation and Use) Regulations 1998 (i.e. the obligation to provide any new tenant with a copy of the latest check prior to them taking occupation) was not complied with, a landlord could never serve a valid s.21 Notice. Therefore, a landlord would permanently lose its ability to rely upon a no-fault route of obtaining possession. It was a draconian decision and one to be contrasted with the position in relation to other requirements such as a landlord’s obligation to protect a deposit (which can be remedied by returning the deposit to the tenant prior to serving a s.21 Notice).
The Court of Appeal’s decision, which will be welcomed by landlords, means that a breach of either regulation 36(a) or (b) may often be remedied and a landlord will no longer be permanently barred from serving a valid s.21 Notice to obtain possession.
That said, the decision still leaves a number of questions open such as whether a breach can be remedied if the landlord has entirely failed to carry out an initial gas safety check prior to the tenant taking up occupation. Further, Moylan LJ dissented, so watch this space for an appeal to the Supreme Court.
Finally, and notably in the current situation, the Court of Appeal’s decision indicates that it does not consider that the provisions of Practice Direction 51Z prevents it from handing down judgments in possession appeals.
Possession Claims under COVID-19
The stay on possession proceedings imposed by PD 51Z (which from 25 June will take effect through CPR r.55.29) has not prevented possession-related questions arising before the courts. Most notably, the ambit of the stay has been explored by the Court of Appeal in Arkin v Marshall and London Borough of Hackney v Okoro (the details of which have been discussed in previous bulletins). Members of Chambers have also had to deal with possession-related questions:
- Before a District Judge in the County Court. The First Claimant sought possession of the Defendant’s property as a result of mortgage arrears. The Second Claimant, being the Defendant’s trustee in bankruptcy, made an application for the court to order delivery of possession pursuant to its wide power under s.363(2) of the Insolvency Act 1986. The two matters had been consolidated by an order of the court. It was not in dispute that, as a possession claim under CPR Part 55, the first claim fell within the ambit of the stay; however, the second claim was not brought under CPR Part 55, and as such the stay would not apply if it stood alone. The court held that, as the claims had been consolidated, the stay automatically imposed on the first claim by PD 51Z also applied to the second claim.
- A hearing appealing a possession order had been listed before a Circuit Judge at the Central London County Court. The Judge was persuaded that, as the stay applies to appeals, there was no jurisdiction to hear the appeal. The Judge initially sought to make an order staying the appeal, however was persuaded that, as the stay applied automatically, no order was necessary. Court listings may not necessarily reflect the latest developments on covid-related law – this case illustrates the need for practitioners to stay on top of such developments.
Copeland v Bank of Scotland  EWHC 1441 (QB)
In this case, Mr Justice Freedman lifted the stay imposed by PD 51Z for the limited purpose of delivering a reserved judgment.
A possession order had been made against the Defendant (the appellant) on 6 August 2018 in favour of the bank. The Defendant had made an application to set aside that order; however, this had been refused on 1 November 2018. The Defendant was appealing this refusal on the basis of her non-attendance at the hearing, pursuant to CPR 39.3(3). For the purposes of this summary, it is not necessary to examine the substantive decision, save to say that the appeal was dismissed and the possession order stood.
This case is of wider interest for the Judge’s consideration of the impact of PD 51Z [paras 4-7]. The appeal had been heard in February, prior to the introduction of PD 51Z. All that remained was for the reserved judgment to be handed down. Taking into account Arkin and Okoro, the Judge held it would be undesirable to postpone hand-down of the judgment until the stay ceased to have effect. As such, the Judge lifted the stay for the narrow purpose of issuing the judgment and making a consequential order. In so doing, he made clear that:
- The possession order itself is subject to the stay;
- An extension of time to apply for permission to bring a second appeal until after the stay ceased to apply would preserve the purpose of PD 51Z;
- The Judge’s lifting of the stay is a course of action taken by reference only to the circumstances of this specific case, and is not intended to inform other courts how to act.