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Appeals in Possession Claims also stayed under Practice Direction 51Z

Michael Grant's profile can be viewed here

Introduction

As most property/housing practitioners will know, in March 2020 Practice Direction 51Z (PD 51Z) was introduced in haste in order to impose a temporary stay on all possession proceedings brought under Part 55, so as 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 coronavirus pandemic.

PD 51Z was amended on 20 April 2020 to exclude claims against trespassers, interim possession orders and applications for case management directions which are agreed by all parties.

On 11 May 2020, the Court of Appeal (“the Court”) in Arkin v Marshall [2020] EWCA Civ 260 found that the Practice Direction was neither incompatible with Article 6 nor the fundamental principle of access to justice.

Since Arkin, a further question has arisen, this time concerning the scope of the Practice Direction; namely, whether the words “all proceedings for possession under CPR Part 55” in paragraph 2 of PD 51Z include appeals. This was the very question asked to be considered by the Court in Okoro.

Appeal in Okoro

The argument that was advanced by the Respondent was that appeals are covered under CPR Part 52 not CPR Part 55, and as PD 51Z covers possession claims under Part 55 only, it would not concern appeals. In addition, Part 52 provides a separate regime for the conduct and management of appeals, which is quite distinct from that which is seen under Part 55.

Nevertheless, the Court found that the words of paragraph 2 of PD 51Z were to be treated more broadly, namely that “they stay all proceedings for possession brought under CPR Part 55”.

The Court went on to say:

"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.”

Thereafter, it was clarified that, in the Court’s view, the objectives of PD 51Z were 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" which are as much furthered by staying appeals as by staying first instance proceedings for possession, notwithstanding that there would be fewer possession appeals than first instance possession claims.

Conclusion

The Court has not only found (following the recent case of Arkin) that PD 51Z is compatible with the fundamental principle of access to justice, but that it also has wide ranging effect, covering not only first instance possession proceedings but also appeals.

DISCLAIMER: This bulletin is no more than a summary of the topic or topics, chosen selectively for the purposes of discussion only. It is not legal advice and should not be treated as such. It should not be relied or acted upon in any respect. Recipients should always seek legal advice if proposing to take action following this commentary.

Michael Grant is a member of the Housing and Property team at 42 Bedford Row and specialises in all aspects of residential and commercial property litigation.


01.06.2020