[aka Three out of the Five go ever so slightly bonkers on the way to Mornington Crescent, and one of those three gets lost on the way]

On the Radio 4 show, I’m sorry I haven’t a clue, there is a game called Mornington Crescent, in which there are no rules and the outcome is irrelevant as the show is more important than the game.  It is a surreal game in which the winner is the first person to say “Mornington Crescent”.  I was reminded of that game when reading the five cases wrapped up in Salford City Council v Mullen [2010] EWCA Civ 336, which J termed “the Famous Five“.  They each raise the relevance and extent of gateway (b) in two different factual scenarios: (1) termination of a non-secure tenancy/licence occupied by virtue of section 193, Housing Act 1996 (Powell v Hounslow LBC; Manchester CC v Mushin); and (2) tenancies terminated under the introductory tenancy regime contained in Part V, Housing Act 1996 (Hall v Leeds CC; Frisby v Birmingham CC; Mullen v Salford CC).  Gateway (a) was not argued before the CA in these cases because the CA is bound by Kay and Doherty, and all of the five occupiers reserved the right to argue gateway (a) in the SC.  These are cases in which there are no rules – or, at least, counsel for three of the five local authorities (Salford did not appear) argued that Wandsworth LBC v Winder [1985] AC 461, which forms the basis of gateway (b), didn’t decide, erm, what it did decide – and the outcome is entirely irrelevant – as the main show is the nine person SC in Pinnock, with which the famous five were seeking to join (perhaps to make a suspicious six).  However, the outcome was that four out of the five local authorities won; Manchester lost and one will need to look into the mind of Jon Holbrook to find out why.  Permission to appeal was granted in Powell and Hall as the best specimens, so to speak; permission was refused, subject to submissions, in the others.

The first thing to answer, then, is why did the CA bother at all and not just wave the cases through. Their line was that the SC should have a broad range of cases and county courts need urgent guidance (an understatement, I’d say) about how to deal with gateway (b) defences to possession proceedings.  Whether those courts find that guidance here or not is open to doubt.

There are five questions of law considered: (1) does section 38, County Courts Act 1984 exclude a gateway (b) defence in all cases? (2) do the particular statutory schemes exclude the taking of a public law defence in the county court? (3) does gateway (b) involve a full proportionality review? (4) How wide is gateway (b) in the context of the specific statutory schemes? and (5) what “decision” or “decisions” can be challenged through gateway (b) (that is, just the decision to serve the notice to quit [ntq] or all decisions leading to possession – this is the ongoing battle between two lines of CA judgment, respectively Doran v Liverpool CC  [2009] EWCA Civ 146and Central Bedfordshire DC v Taylor [2009] EWCA Civ 613, discussed also in our note of Barber v Croydon LBC [2010] EWCA 51).  Waller LJ gives the judgment of the CA, but Patten LJ gives a supporting judgment which specifically considers the position in Manchester CC v Mushin.  This was the only case lost by the local authorities and was, if I might say, surreally argued – more of that at the end because it’s just weird and not exactly on point as it turns out.  Waller LJ takes each point in turn as follows:

Section 38 ([47]-[49])

Section 38 is the curious provision which disentitles a county court from giving the remedies of certiorari and mandamus.  From that small seed, it was argued by Hounslow, Leeds and Manchester that a gateway (b) defence is not open to a Defendant at all in the county court and, in the alternative, Wandsworth LBC v Winder [1985] AC 461, properly analysed, only gives rights to defend private rights using public law.  These amount to possibly the most bizarre submissions I’ve ever come across from mostly ordinarily sensible people.  They could not possibly succeed without unwinding twenty five years of case law, the whole of gateway (b) (because one would have to make an application for permission to bring a JR if they were right), not to say Doherty etc.  Clearly the CA were bound and this was a hopeless argument.  The only local authority counsel who comes out of this well is Jonathan Manning who did not take this point at all and rightly so.  Yes, gateway (b) can be procedurally messy because of the remedy problem caused by section 38, but that does not mean it cannot exist.

Statutory Schemes ([50]-[55])

This submission was stronger for the local authorities with a muted “Mornington Crescent” being raised in the introductory tenancy cases.  The submission here  was that the statutory schemes precluded the raising of a gateway (b) defence to the possession claim.  The homelessness cases were never going to succeed because there was CA authority in the way (Barber and McGlynn v Welwyn Hatfield DC [2009] EWCA Civ 285).  Hounslow nevertheless foreshadowed their SC argument with the claim that gateway (b) only arises in exceptional circumstances where domestic law contains an insufficient safeguard against an Article 8 violation, a proposition roundly rejected on authority.

The introductory tenancy cases are successful on this point in the sense that the statutory provisions make clear that the county court judge has no discretion but to grant a possession order once the procedural elements around the s 128 notice have been complied with (s 127(2)).  Manchester CC v Cochrane [1999] 1 WLR 809 and R(McLellan) v Bracknell Forest BC [2001] EWCA Civ 1510 stand in the way of the alternative construction argued for the occupiers (ie that they could bring their gateway (b) defence in the county court, rather than by commencing a fresh JR application).  Although it was argued that Doherty had “swept away” Cochrane and McLellan, the CA decision in Pinnock stood in their way, particularly as the introductory tenancy and demoted tenancy regime are essentially identical (at [54]).  This point, then, was won by the local authorities and leaves us with a rather awkward scenario (what if the County Court refuses an adjournment, but there is a successful permission application for a JR?).

Proportionality ([56]-[61])

The next two questions concern the scope of a gateway (b) review.  What degree of scrutiny/intensity does it entail?  It will be remembered that Lord Hope in Doherty at [55] said that “… it would be unduly formalistic to confine the review strictly to traiditional Wednesbury grounds” but that just begs the question.  The CA hold that it does not extend to a full proportionality review, citing Doherty as their authority.  That really foreshadows the real issue which is that it’s beyond Wednesbury but less than proportionality, and we know that some judges have said that you can’t really pass a sliver of paper between Wednesbury and proportionality, which leads to …

Width of Gateway (b) ([62]-[67])

This section begins with a citation from Dyson LJ’s judgment in Smith v Evans [aka Buckland] [2007] EWCA Civ 1318, at [44], that “It will only be in a truly exceptional case that it will even be seriously arguable that [a gateway [b)] defence will succeed”.  They go on to quote extensively from Lord Bingham in Kay because there’s not much difference between him and the majority in Kay, the need for highly exceptional circumstances even on his braoder formulation, and his judgment was approved by the ECHR in McCann.  The question this gives rise to is the extent to which personal circumstances are and can be relevant in a gateway (b) defence.  The answers are different depending on the statutory scheme, according to the CA.  As regards the introductory tenancy regime:

… the question will be whether there is some highly exceptional circumstance which should lead to the County Court adjourning the matter so that Judicial Review can be applied for in the Administrative Court. Circumstances personal or otherwise which Parliament must have contemplated would be likely to be present in the context of such a scheme could not be considered as ‘exceptional’ never mind ‘highly exceptional’. Thus for example it would be contemplated that difficult questions of fact as to whether anti-social behaviour had occurred or not would be something that Parliament would contemplate as likely. A Local Authority would not have to conduct a full inquiry to establish the truth or otherwise of such allegations knowing that those are just the situations in which getting witnesses to attend and give evidence would be difficult. With allegation and counter-allegation the Local Authority has to take a decision and unless it could be shown that it was arguable that no reasonable authority with the duties it had to perform in relation to managing its social housing could have taken the decision, there should be no question of adjourning the case until a tenant had brought judicial review proceedings.

With the homelessness cases, a different approach was required because of the different statutory scheme which enables a defence to be run in the county court, andthe ntq cannot be challenged directly through the review procedure.  But: the gateway (b) defence would need to be highly exceptional if the local authority were going to continue to provide accommodation, perhaps in a smaller place; there is an internal review of certain decisions under section 193 available through which the occupier can make full representations; and it should be remembered that the purpose of the homeless legislation is limited.  In summary, then, Barber was an example of the kind of case which is highly exceptional (although see below) because the local authority were unaware of Barber’s mental illness when they served the ntq but: “Anything less than that kind of risk would be unlikely to qualify as so exceptional as to provide an arguable gateway (b) defence in the context of the homeless legislation” (at [67]).

Decision or decisions? ([68]-75])

This is the most interesting aspect of the decision, to me at any rate.  The question is whether one can only challenge the ntq through a gateway (b) defence, as suggested in Doran, or whether each separate decision taken by the local authority (or RP) on the way to possession is defendable through gateway (b), as in Taylor and Barber.  I have never seen how it can be as limited as Doran suggests, but it is particularly interesting to see the SoS arguing that Doran is correct.  They do so for three reasons: Doran allows the facts as they appeared or should have appeared to be considered, and therefore is not as limited as we thought; the Taylor approach causes practical problems of its own in enabling occupiers to lengthen possession proceedings, making them more expensive and costly and here, they use the example of ASB stopping after the ntq or at a later stage before possession; finally, the whole point of gatewway (b) was that the ntq or a rent demand was ultra vires and void as in Winder (which rather repeats the modified section 38 argument).  The CA reject these submissions (at [73]) and felt bound by Taylor as it had been accepted in Barber (at [74]).  They reject the first submission because it does not deal with a wholly new event occurring after the ntq, such as the occupier becomes seriously ill.  They reject the second submission because:

… we do not accept there is a practical difficulty in a situation in which an introductory tenant brings forth facts which show he has now improved his behaviour; a local authority will be bound to consider whether it should continue with the  proceedings but it will not be arguable that it is unreasonable for the Local Authority to continue with them having given the tenant his or her chance and with others waiting for accommodation.

And finally …

there’s Manchester CC v Mushin.  In summary, Mr Mushin’s wife and family left the home provided by Manchester under Part VII due to Mr Mushin’s domestic violence.  Manchester served an ntq and Mr Mushin relied on a gateway (b) defence on the basis that he did not commit domestic violence and he wanted to stay at the property in case his wife and children reutrned.  At the trial Manchester relied on Mr Mushin’s over-occupation but conceded that, if it was proved that domestic violence had been the reason for the service of the ntq, then a gateway (b) defence was open to him and should succeed if he had not had the opportunity to rebut the charge of domestic violence.  Manchester sought to withdraw those concessions intheir amended notice of appeal and skeleton.  But Jon Holbrook, for Manchester, decided not to seek to withdraw them preferring apparently to attack the judge’s findings of fact on this point.  As Waller LJ put it, “… the argument should have been that because Mr Mushin was in fact in accommodation for a family whereas he was now single, the court should have granted a possession order and  any challenge to unsuitability should have been brought by Mr Mushin under the relevant sections applying to the homeless” (at [43]).  Indeed, “there was nothing highly exceptional about Mr Mushin’s position – it possibly would have been if his wife and family wanted to come back and live with him, but the local authority continued its claim. 

Was there in reality any evidence on which the county court judge could base his finding that the ntq had been served because of the domestic violence?  Well, yes, actually, quite a lot.  Granted there had been two ntqs, only the first of which was relied on; although the housing officer at the time said that he thought it had been served on the basis of underoccupation, against that was the case history and the fact that the housing officer was one cog in the wheel, so to speak.

Conclusions

Forgive me some brief concluding thoughts, perhaps taking account of some of the observations made at last week’s conference as well (not really a law practitioner’s event, but lots worthwhile going on).  What it boils down to is whether there is a highly or seriously arguable gateway 9b) defence in which personal circumstances seem to play some role at least.  Barber is regarded as exceptional, but this is, of course, an empirical question and I wonder whether that notion of “exceptional” is actually brought out in the everyday lives and practices of local authorities and RPs, as well as occupiers.  We are still left with the real bottom-shifting question: what is exceptional?