Possession Orders, Appeals And Stays Of Execution

• Published date: 26 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Landlord & Tenant - Leases
• Law Firm: Gatehouse Chambers
• Author: Jamal Demachkie

Claims for possession are often long drawn-out affairs. Although invariably listed (relatively) promptly for an initial hearing, under CPR 55.8(2), where a claim is genuinely disputed on grounds which appear to be substantial, the court will usually give case management directions for a final determination at a trial, likely to be many months away.

Inherent in many of these claims lies a tension between the parties, often more pronounced than in other litigation: A tenant may lose its rights of occupation; a landlord will often be in a position where rent is not being paid, and there will be minimal prospects of recovery even if the claim succeeds. These tensions were heightened during the COVID-19 pandemic and the (statutorily-imposed) stays on claims for possession.

What happens, therefore, if a landlord succeeds with its claim at first instance and is granted a possession order, but the tenant subsequently appeals? Who should suffer the prejudice consequent upon an appeal in such circumstances?

The answer is, unsurprisingly, nuanced and involves a multi-factorial analysis.

The General Rule

The general rule is simple: An appeal does not automatically operate as a stay. This is provided for under CPR r.52.16:

52.16

Unless -

(a) the appeal court or the lower court orders otherwise; or

(b) the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal,

an appeal shall not operate as a stay of any order or decision of the lower court.

In the case of DEFRA v Downs [2009] EWCA Civ 257, the single Lord Justice observed that solid grounds have to be put forward by an appellant seeking a stay before the court will consider departing from this general rule.

Practical Guidance

This general rule is all well and good but provides no guidance on how applications for stays pending appeals should be considered in practice. Thankfully, there is guidance from the Court of Appeal in the form of Leicester Circuits Ltd v Coates Brothers PLC [2002] EWCA Civ 474. In Leicester Circuits, the court held that:

1. The general rule is that an appeal should not operate as a stay of any order of the lower court.
2. The court, however, has an unfettered discretion in granting a stay pending an appeal.
3. The role of the court is to make the order which accords with the interests of justice by balancing the prejudices to both sides if a stay is, or is not, ordered.
4. If the justice of the general rule (of no stay) is in doubt the court can look at the strength of the appeal.

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