Coronavirus Stay Extends to Possession Appeals (updated)
The Court of Appeal handed down judgment today in London Borough of Hackney v Okoro  EWCA Civ 681, on the scope of the automatic ‘coronavirus stay’ imposed by PD51Z.
This was a follow-on appeal to Arkin v Marshall  EWCA Civ 260, with an identically constituted Court of Appeal (Vos C, Underhill V-P and Simler LJ). Whereas Arkin had concerned first instance possession proceedings, Okoro concerned appeals from possession orders that were extant when the stay began.
PD51Z paragraph 2 stays “all proceedings for possession brought under CPR Part 55”. The Court accepted (at ) that appeals were not expressly mentioned and, moreover, appeals from possession orders were undertaken pursuant to CPR Part 52, rather than Part 55.
However, the Court decided on a literal construction of PD51Z that possession appeals were included in the ambit of the stay. The Court emphasised the word “brought” in PD51Z paragraph 2 (at ). Although possession appeals were undertaken pursuant to CPR Part 52, they existed within proceedings brought under Part 55.
A purposive construction led to the same result: the objective of PD51Z was to ensure the effective administration of justice without endangering public health (at ). Although the volume of possession appeals was much smaller than the volume of first instance possession claims, staying such appeals would nonetheless result in increased protection to public health.
This left the curiosity of why PD51Z paragraph 2 made separate, express reference to staying “all proceedings seeking to enforce an order for possession by a warrant or writ of possession”. Although enforcement is achieved under CPR Part 83, on the Court of Appeal’s broad construction of the words “all proceedings for possession brought under CPR Part 55”, this subsequent reference to enforcement would be otiose. Any final possession order would already be stayed. The Court found it unnecessary to consider this question (at ).
Copy of judgment available here: LB of Hackney v Okoro.
To read more regarding Practice Direction 51Z, see “Possession Matters” by Julian Gun Cuninghame of Gough Square Chambers and Romana Canneti of 4 KBW in this week’s New Law Journal (170 NLJ 7889).
Update: the stay has now been extended until 23 August 2020 by the Civil Procedure (Amendment No 2) (Coronavirus) Rules 2020. This means that the stay now derives from rules rather than a practice direction.