Court of Appeal says coronavirus stay also covers appeals against possession orders

The suspension of possession proceedings due to the COVID-19 outbreak applies to appeals as well as new cases, the Court of Appeal has ruled.

In London Borough of Hackney v Okoro [2020] EWCA Civ 681 Sir Geoffrey Vos, chancellor of the High Court, said the ruling - in a case involving resident Kevin Okoro and the London Borough of Hackney - meant “this and other appeals against possession orders will not be able to proceed…whilst the stay remains in force”.

The case concerned whether the automatic stay imposed by PD51Z applied to appeals from possession orders in progress when the stay began.

Mr Okoro argued that the purpose of PD51Z was the protection of public health and to ensure courts were not overwhelmed, which made it inevitable that appeals should be included. Hackney argued they were not covered.

Hackney in December issued a claim for possession under CPR Part 55 against Mr Okoro and sought payment of rent arrears and damages.

Once the pandemic began a dispute developed as to where and if the appeal should be heard. Sir Geoffrey ultimately ordered it should be transferred from the High Court to the Court of Appeal as it raised an important point of principle and practice.

Sir Geoffrey said the wording of paragraph 2 of PD51Z stayed “all proceedings for possession brought under CPR Part 55”, and that this must apply even when proceedings were under appeal.

He said the objectives of PD51Z to protect the courts and public health “are as much furthered by staying appeals as by staying first instance proceedings for possession, notwithstanding that there are fewer possession appeals than first instance possession claims”.

It would be “odd if applications to set aside a possession order made in the absence of a defendant were covered by the stay in accordance with the objectives of PD51Z…but appeals directed at achieving the same result were not.”

Sir Geoffrey noted that there were 138,000 possession claims brought every year in the County Court, but the parties were able to provide no statistics on the number of appeals. "It is, however, clear that appeals and applications to set aside possession orders on the grounds of the defendant's non-attendance under CPR Part 39.3(3) are not uncommon. Many defendants to possession claims are vulnerable and unrepresented, and only realise that action is required from them very late in the day."

Mark Smulian