Threats to pursue wasted costs tend to be waved around rather too often by some solicitors, perhaps overly convinced of their own rightness. Usually what is at issue is actually a valid point of dispute. Personally, I think these threats tend to backfire, at least if the recipient is reasonably sure that an application would fail. Nothing shrieks of a lack of strength in a position so much as a big blustery threat.

However, there are times when a wasted costs order is certainly merited and where the solicitors have been really very naughty indeed. One such case has landed on the NL virtual desk and, although not strictly housing related – being a business lease – it is an opportunity to remind ourselves of the criteria for wasted costs orders.

Odihambo v Gooch Birmingham County Court, 24 October 2011 [Not available on Baili. We've got a transcript]

Mrs O had a commercial lease of a property, trading as a restaurant. The lease was excluded from protection (and renewal rights) under the Landlord and Tenant Act 1954 and Mrs O had signed a statutory declaration stating that she was not entitled to claim compensation for loss of the premises – this was agreed to be the case by Ms O’s previous solicitors in discussions about remaining in the property. It was a 3 year lease and expired in October 2009.

Mrs O stayed on, paying rent as before. She was a tenant at will, as accepted by her previous solicitors. Discussions on new terms took place but failed. In November 2010 a notice to quit was served, taking effect in March 2011. By March 2011, IEI Solicitors were acting for Mrs O. Come the date in March, Mrs O did not leave. After further letters, the landlord, Mrs G, made a peaceable re-entry to the property on 5 April 2011.

On 6 April, Mrs O, through IEI Solicitors, issued a Part 8 Claim and an application for an injunction for re-entry. The claim simply said that the landlord “without complying with the Landlord and Tenant Act 1954″ and without rent being owed, had entered the property and changed the locks. An accompanying claim for costs had an affidavit from Mrs O saying that she was ‘amazed to discover’ that the landlord had entered without a court order, repeating that the landlord had ‘failed to follow the due process of law under the Landlord and Tenant Act 1954′.

When the application and claim came before a CJ on 8 April 2011, Counsel for Mrs O only advanced one argument, that the acceptance of rent between the service of NTQ and the date it expired constituted acceptance of a new tenancy at will by the landlord. This was, as noted in this judgment, a ‘hopeless’ argument, with no chance of success. The hearing was adjourned, by consent, to 9 May 2011 in front of HHJ David Cooke, supposedly on this point alone. Mrs O re-entered under the terms of this agreement.

The claim and application was abandoned on 6 May (a Friday) and the hearing proceeded on costs alone. At the hearing Counsel for Mrs O indicated that he had informed IEI after the previous hearing that the argument was hopeless. Costs of £8882.40 were ordered against the Claimant. HHJ Cooke made an order that IEI should show cause why a wasted costs order should not be made.

The relevant part of the CPR is Rule 48.7. Para 53.4 of the Practice Direction to Rule 48 states:

It is appropriate for the court to make a wasted costs order against a legal representative, only if –
(1)the legal representative has acted improperly, unreasonably or negligently;
(2)his conduct has caused a party to incur unnecessary costs, and
(3)it is just in all the circumstances to order him to compensate that party for the whole or part of those costs.

The notes to the PD in the White Book raise Saif Ali v Sydney Mitchell & Co [1980] AC 198 to the effect that “improper” covers conduct which would result in debarment, striking off, suspension or other serious professional penalty. “Unreasonable” describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case and it makes no difference that the conduct was the result of excessive zeal and not improper motive. “Negligence” is to be taken in the non-technical sense of a failure to act with the competence reasonably expected of ordinary members of the profession.

It is also necessary that there should have been a breach of the lawyer’s duty to the court. There must be more than mere negligence.

Following Persaud v Persaud [2003] EWCA Civ 394, the question of hopelessness is to be considered on the basis of whether no reasonably competent legal representative would have continued with the action. A case which is not hopeless but is quite proper to argue will not be an appropriate basis for a wasted costs order if the case is discontinued.

The Court set about applying these principles to the present case.

IEI sent a letter to the Court for the wasted costs hearing, arguing that their client had instructed them to bring proceedings for re-entry because “the manner of her eviction was not palatable for her business” (I adore this line, and I propose a sustained campaign to bring in the ‘palatability’ defence alongside proportionality).

IEI then said that following the hearing of 8 April, they had been telephoned by Counsel saying that the client had been asked to re-enter and to send the rent to them to pay on to the Defendant. Counsel said that a skeleton argument had been directed and he would deal with it They did not get the Order from the Court. They were then surprised to be contacted on 18 April, presumably by the Defendant, seeking a skeleton and agreed statement of facts. They were then contacted by Counsel on 4 May to say that there were no prospects. They stated that they then immediately contacted the other side.

In short, they tried to put the blame on the client and on Counsel.

This didn’t get them very far. On the evidence it appeared likely that IEI had known that Mrs O’s lease was excluded from the 1954 Act either before issuing the injunction application, or in any event by 7 April.

It was therefore a ‘grave concern’ that the Part 8 claim and injunction application were in the form that was issued. There was a suggestion of a rent dispute and a suggestion that the 1954 Act was engaged, but no mention of the notice to quit, 3 months notice and tenancy at will. When the matter came before the court on the initial injunction hearing, there was a duty of full and frank disclosure to the Court of all relevant matters and the application and affidavit fell far short of this. Mrs O had professed herself to be ‘amazed’ to find the landlord had re-entered, when she was fully aware that she had been required to vacate on 25 March. There was a serious degree of misrepresentation by omission which amounted to an abuse of process. Either IEI knew before the claim was issued or they knew before it was heard on 8 April. The fact that Counsel had managed to obtain an adjournment on different and extremely flimsy grounds didn’t alter that.

IEI then appeared to give the matter no further consideration until they received Counsel’s note on 4 May and took no steps to inform themselves of what had taken place after Counsel’s initial call. The ground put forward by Counsel was so flimsy that no competent solicitor or barrister could have properly maintained it.

In view of the urgency of the proceedings brought, it was simply not acceptable that the Claimant’s solicitors appeared not to have taken any substantive steps to prepare for the later hearing or to chase up counsel.

And then, even after being told there was no case on 4 May, IEI did not contact the Defendant’s solicitors until 6 May, after the Defendant had had to brief Counsel for the Monday 9 May hearing. What is more, IEI had offered to discontinue on the basis of no order as to costs, which was of course going to be wholly unacceptable to the Defendant. There was no excuse for the delay or for making a proposal that they must have known would be unacceptable and would mean the hearing going ahead.

The claim was therefore initiated in circumstances that made it an abuse of process and the solicitors acted improperly and unreasonably in doing so. The solicitors then effectively abandoned the claim to Counsel and were negligent in doing so, not even giving the most basic consideration to the merits. The solicitors had caused loss to the Defendants in terms of the whole costs of defending the proceedings. Indeed, had proper consideration been given to the case in the first place by the solicitors, they would have advised Mrs O not to pursue an action, despite their instruction that it was ‘not palatable’ to her to be evicted. If they were still instructed to bring the claim, then the full facts should have been presented to the Court at first instance.

As it was extremely unlikely that Mrs O was going to pay the Defendant’s costs it was just that the solicitors should be ordered to do so on a joint and several basis with the Claimant.

In the transcript that we have seen, there follows a fragment of a thoroughly entertaining discussion between the CJ and Counsel for the Defendant. Having had £8,800 costs of the April and May hearings awarded, the Defendant sought costs of £12,528 for subsequent costs up to this hearing. Whether they got them or were assessed down, we shall probably never know, alas.

The CJ notes that Mrs O’s claim bore all the hallmarks of being brought with a view to pursuing a negotiating position, where there was no justification in law. That seems likely.

The lesson to be drawn, should it need drawing, is that one should never make a threat – let alone bring proceedings – that one cannot to some degree make good on. That applies to threatening wasted costs applications, as noted at the start, but also and with rather more force to threats to bring proceedings or within proceedings. Above all, one shouldn’t be be so catastrophically daft as to attempt to make good on an empty and groundless threat!

*Ian Dury and the Blockheads: ‘What a waste‘

Powell found that s.89 Housing Act 1980, which limits the time for a stay of possession order to a maximum of 6 weeks, was compatible with Article 8. So, once a possession order has been made, does the court have any discretion to revisit or extend a period of stay beyond 6 weeks?

Ngesa v Crawley BC [2011] EWCA Civ 1291 [Not on Bailii yet] addresses this issue, though perhaps not in a very satisfactory manner. It was a Court of Appeal permission hearing in front of Rimer LJ. I believe that the appellant was not represented and, as we’ll see, the facts are hardly attractive, but nonetheless, the Court’s view is clear.

Ms N was an unsuccessful asylum-seeker. She had applied to Crawley as homeless under a false name and provided a non-secure tenancy as temporary accommodation. A notice to quit was served after she fell into rent arrears. Crawley sought possession. No defence was filed and no article 8 point raised. Crawley were granted a possession order stayed for 28 days. After the 28 days, Crawley obtained a warrant.

Ms N applied to stay the warrant and another DJ granted a stay. Crawley appealed. They had by now discovered Ms N had applied under a false name. They also relied on s.89 Housing Act 1980 as imposing an absolute limit of 6 weeks delay in executing an order. The appeal was allowed and leave to re-issue the warrant given.

Ms N sought permission to appeal out of time. She argued that the Circuit Judge on first appeal ought to have applied article 8 of his own motion and to have adjourned to get a fuller picture of the facts.

Permission to appeal was refused. Rimer LJ held that in the absence of any defence, the first DDJ had no alternative but to grant possession. The granting of a possession order circumscribed the Court’s subsequent powers by operation of s.89 HA 1980. As the Supreme Court in Powell had found s.89 to be compatible with article 8, there was no basis for a challenge to the operation of s.89.

Comment
As we noted at the time, the decision on s.89 in Powell was a major restriction on the discretion of the Court suggested in Pinnock, and indeed seemed to go against Pinnock in that regard. The effect, at least as set out in this case, is that a proportionality defence has to be raised in the possession proceedings before an order is made. While it may be possible in some circumstances to seek a set aside of a possession order (under CPR 39.3 or indeed CPR 3.1), that will not always be so. If the strictly obiter statements in Powell stand, that will be the end of the matter, no matter what the Court’s view might be on the proportionality of an eviction once the circumstances have been raised in a stay application.

Hat-tip to January’s Legal Action ‘Recent Developments in Housing Law’ for news of this case.

At what point in the course of an eviction and securing of a property is the warrant considered to be executed, so that no application for a stay can be made? This is a County Court case, but the Court’s decision is clear and supported.

Mrs Bray’s home was mortgaged to RBS. RBS had obtained a possession order and had obtained, then withdrawn 5 previous warrants. RBS got a further warrant. Before the eviction date Mrs B wrote to RBS offering to clear the arrears at lunchtime on 18 November 2011 as she had sold her car and the funds would have cleared by 18 Nov. She heard nothing in response and went to work on 18 November. She was then called by a neighbour to say they had seen someone in her garden. She went home to find the court bailiff, locksmith and dog handler there. They had gained access though the rear door.

The bailiff told Mrs B to make an emergency application. She rushed to the Court and made an application. The Court officer referred the application to the bailiff’s clerk and the Judge, but the Judge was incorrectly told that the warrant had already been executed and the application was not heard. Mrs B was referred to the CAB, which made an emergency application to set aside the warrant on the ground of oppression, but Mrs B also sought to rely on her original application from that morning, arguing that it had been made before the warrant had been executed, as the bailiff had not at that time given quiet possession to the Claimant.

At the hearing, the bailiff confirmed that he had received a telephone call from the court about Mrs B’s application while he was still at the property and before it had been fully secured and both locks refitted.

The District Judge found that the warrant had not been executed at the time that Mrs B had issued her application. The warrant was suspended on terms of payment of the arrears in full and of mortgage instalments thereafter.

My view is that this has to be right. The warrant be in the course of being executed, but it is not fully executed until the bailiff has finished and the Claimant has quiet possession. (Woodfall, The Law of Landlord and Tenant, supports this view).

Hat tip to the January 2012 Legal Action Housing updates for the case report and to Calderdale CAB for letting us know about the case in the first place.

(*And yes, I am aware that the preceding line is ‘A tale told by an idiot’.)

The much trumpeted Wandsworth riot related eviction has stalled even before possession proceedings were issued. According to a press release from Liberty, following a meeting with the tenant’s legal representatives (the tenant is represented by Liberty), LB Wandsworth agreed not to bring proceedings.

If you recall (and here is our very first take on the matter, written on the day of the press release and subsequent service of Notice Seeking Possession by Wandsworth), the son of the tenant was charged with riot related offences. The son has now been sentenced for burglary. The tenant has an 8 year old daughter and was generally regarded as a community asset for voluntary work with youth groups and domestic violence victims.

Wandsworth had stated their intention to rely on their amended tenancy agreement which had as a condition that no-one in the household should do anything naughty or upsetting in the whole borough – thus considerably wider than Ground 2 Housing Act 1985. (The full text of Wandsworth’s clause is in the previous post). While clearly it is a good thing for the tenant that proceedings have been dropped, it would have been interesting, to say the least, to see this tested in Court, against an Article 8 defence amongst other things.

We should not forget that this whole sorry episode started with a Wandsworth press release trumpeting that they were the first to pursue a riot related eviction. Now, they are no doubt hoping that dropping the case will pass quietly and without a splash. Meanwhile, the tenant’s life has been laid open to press and public by Wandsworth in pursuit of what looks like a grandstanding political gesture.

One wonders whether things might not be entirely over. Certainly Wandsworth’s conduct would invite scrutiny.

And is there a question mark over riot related possession steps taken by LB Southwark?

After sending out warning letters of intent last summer to quite a few tenants whose household members were ‘suspected’ to have been involved in the riots, Southwark did serve some five Notice Seeking Possessions this January on the basis of riot related convictions being a breach of tenancy agreement. It is not clear if the tenant was the person convicted, or a member of the household. But, rather bizarrely, Southwark stated that no further proceedings would be taken against the five, instead any ‘further breaches could result in eviction’.

Now while it is not, perhaps, uncommon for Local Authorities to use NSPs as a warning shot in effect – e.g. in arrears cases – it is very odd to find NSPs being publicly and ‘officially’ used in this way. An NSP is, after all, a formal statement of the landlord’s intention to bring proceedings, not a conditional agreement. I do find myself idly wondering whether the decision to use an NSP in this way may be open to a public law challenge. If anyone is bringing such a challenge, we’d be very interested to hear from you.

We’ll have a note on the judgment shortly, but the main finding was that, given the Corporation’s right to possession, the interference with the protestors’ Article 10 and 11 rights was justified and proportionate in view of the need to protect the rights and freedoms of others, including public passers-by, St Paul’s Cathedral, church-goers and businesses in the area.

The freedoms and rights of others, the interest of public health and public safety and the prevention of disorder and crime, and the need to protect the environment of this part of the City of London all demand the remedy which the court’s orders will bring.

Permission to appeal was refused. The Corporation offered a 3 day stay of enforcement for an application for permission to the Court of Appeal. Occupy asked for 7 days. The High Court stayed enforcement for 7 working days, to 4 pm on 27 January, for an application to appeal to be made.

Meanwhile, we wait for the Court of Appeal on the UBS v Bank of Ideas appeal, which will also raise the intriguing issue of Art 10 and Art 11 rights biting as a defence to possession of private property, as opposed to the public highway in City of London -v- Samede.

CPR55.8 has been the the subject of a surprising amount of appellate interest recently. For those of you not nodding sagely at this point CPR55.8 deals with the Courts obligations at a summary possession hearing. Put simply the Court has two choices at such a hearing, set out in CPR55.8(1). They can either decide the claim by making a possession order or give case management directions. CPR55.8(2) states that “where the claim is genuinely disputed on grounds which appear to be substantial” those directions must either include an allocation to track or enable that allocation to occur.

In this case Benesco granted a lease to Speedway Tyres Ltd for ten years. K was key in the incorporation of the company and his wife was a director but K himself had no official status. Speedway was placed into liquidation along with an associated company called Autocare Ltd. The liquidator disclaimed the lease in June 2011. On 7 September K applied for a vesting order on the basis that he had a personal sub-tenancy. This application has yet to be determined. K then appeared to change his position to state that he was the assignee of a sublease held by Autocare in the basis of an assignment which was made on 20 September 2011.

Benesco then issued proceedings against K and persons unknown as trespassers on 9 September. K defended this on the basis that Speedway had granted him or alternatively Autocare a sub-tenancy in October 2004. This was not actually something he could assert for Autocare until he had obtained the assignment on 20 September. There was also the issue that Benesco had granted a tenancy at will to ECRC Ltd (of which K was a director) in June 2011. K asserted that this tenancy was not binding due to misrepresentation on the part of Benesco but this was not something that the appeal court was prepared to give a view on.

In short, the Court at first instance was unimpressed by the witness statements produced by K and dismissed them out of hand, granting possession to Benesco. It was this decision that was appealed.

The High Court held that where witness statements supported by statements of truth are produced which allege reasons why possession should not be granted then these:

should be not rejected at a summary stage unless the evidence is incredible. A person is entitled where there are matters raised in the witness statement unless that high threshold is reached to take the matter to trial.

While K’s case was weak and the High Court made clear that it doubted the veracity of their story it was equally clear that K should not have had his case summarily dismissed. The appeal was therefore allowed and a trial date was set.

The case deals with the issue of termination of joint tenancies via a notice to quit under the rule in Hammersmith v Monk and the proportionality/lawfulness of possession proceedings within Article 8 ECHR.

JB had been the secure tenant of her 3 bedroom council property since 2002 and her sole tenancy became a joint tenancy after she married her husband, RB. The parties separated in 2005, leaving JB and her two children in occupation of the property. Several years later, RB received a communication from the council regarding rent arrears for the property he was no longer occupying. Following discussion with the council and reassurances that he would not thereafter be liable for rent arrears, RB served a notice to quit to end the tenancy, which was meant to end on 4th October 2010. The council commenced possession proceedings against JB and the case came before the judge on 12th October 2011.

The initial point to be made is that the judge’s comments on the proportionality of the eviction are only obiter, as the possession proceedings were dismissed for want of a lawful notice to quit: the tenancy agreement required 4 weeks but only 3 weeks and 6 1/2 days were provided. Nevertheless, the judge gave lengthy reasons why eviction, notwithstanding the notice issue, would have been disproportionate.

Firstly, in advancing a Gateway B defence, JB referred to a section of the council’s policy, which permitted a further discretionary tenancy to previous tenants who had a 15 year tenancy record. JB argued that this time limit was irrational and did not provide any flexibility for those who were otherwise good and deserving tenants. The judge did not accept that the policy was irrational but agreed that a policy allowing tenants to have their tenancies restored was relevant to proportionality. The judge concluded:

In looking at whether it was necessary in a democratic society to apply for possession and whether it was a proportionate means of achieving a legitimate aim, I have to accept that the council was in a strict sense legally entitled to do so, and that they were not motivated by bad faith and were simply pursuing the goal of satisfying the needs of those on their housing list. I am not satisfied however that their decision to seek possession was however either necessary in a democratic society or proportionate in the circumstances of this case. This defendant had lived in this property since 2002, had lived in a previous council property since 1996, and had moved from that property mainly at the behest of the council. Had she not moved and remained in her previous property she would be secure under the 15 year rule. She has spent money on this property and any move involves further expenditure of money. In a case such as where her husband had given the present notice in circumstances where she could do nothing about it (and did not even have notice of it until either it had taken effect or possibly very shortly before) I do not find it reasonable for the council without more to rely on that notice. Where a tenant is without blame it seems to me that the council should look and see whether otherwise they might be entitled to obtain possession. If they have grounds within the statutory regime then it is quite right that they should do so, and any challenge to their rights on article 8 grounds in my view will be met by their rights following the notice to quit, as well as the statutory grounds entitling them to possession. Where there are no statutory grounds available to them (as here), and where there is no fault on the part of the defendant, and the defendant had previously had and enjoyed security of tenure without complaint, an order for possession would in my view breach  the defendant’s article 8 rights.

Comment: the above paragraph is particularly interesting as it demonstrates the interface between the council’s right to take possession for the proper management of its housing stock (as established in Pinnock, Powell etc)  and policy documents giving a stake in the management of that stock to people in the Defendant’s position. One suspects that had it not been for the 15 year rule, the Claimant’s arguments would have been more potent and decisive. Although the proportionality aspect of the decision is obiter, it underlines the importance of using policy documents to one’s advantage when proportionality/Gateway B arguments need to be raised.

Finally, it should be added that the judge declined to find that the Hammersmith v Monk rule was not compliant with Art. 8. That will have to wait for another case.

This is usually a moment to take stock of the past year and look forward to the next, but I’m feeling far too lazy to do it properly. Luckily, the DCLG have made the task easier by shouting again that they propose to crack down on subletting. In what is rapidly becoming an annual tradition, Grant Shapps has announced plans to consult on proposals to make sub-letting a criminal offence. Rather oddly, Mr Shapps says:

For too long this country has turned a blind eye on the multi-billion pound problem of housing tenancy fraud and abuse.

which I take to be an admission that last year’s ‘crackdown’, action team and all, was utterly ineffective.

As to the proposals – the devil will be in the detail.

Mr Shapps has coupled the sublet issue with proposals to remove security of tenure and levy a ‘market rent’ on social housing tenants earning over £100,000 per year, hitting an estimated 6,000 tenants nationally. This seems rather over the top for legislative action, but would establish the principle of restriction on tenure by income level. This may well go further, as introducing legislation with the main aim of removing Bob Crowe’s security of tenure seems a little excessive.

What with this, the coming into force of the Localism Act, with new tenure provisions, and one presumes a response to the consultation on an ASB mandatory ground for possession and closing the bus pass loophole, it is going to be a busy year. There is plenty to look forward to in case law, as well.

The blog has had a successful year, with more than 300,000 hits in 2011. Over 1250 people subscribe to updates by RSS and email (over 1000 by email), and, worryingly, over 1700 follow the @nearlylegal twitter feed. I say worryingly, as @nearlylegal has a tendency to go off piste.

The we joined the Guardian Legal Network and our pieces appeared on the Guardian Law and Guardian housing pages. What was probably the most remarkable part of the year for me was the astonishing response through the blog in terms of people signing the public letter on the mis-representation of the law on squatting. It was a genuine surprise (and somewhat humbling) to see the level of response.

At the end of 2011, another four excellent people joined the NL team, so that there are now 10 of us. Newly refreshed, we aim to keep going to our usual standard (a pleasingly non-committal and unenforceable phrase) in 2012.

This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.

Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.

In early 2010, Mr O began to build up rent arrears. His student loan, with which he paid the rent, was delayed (as with many that year). In the interim he subsisted with help from friends and social services. The loan was eventually paid on 4 March 2010. In the interim there had been several contacts from rent income officers pursuing the arrears and possession proceedings had issued by February 2010 on grounds of rent arrears. These proceedings were not pursued as Mr O’s aunt paid off the arrears before hearing. There had been no attempt by the housing officers to contact the Leaving Care Team before commencing proceedings.

In March 2010, Lewisham discovered that Mr O had sub-let the flat from January 2010 after the sub-tenant claimed housing benefit. Lewisham served a Notice to Quit, which expired in April, then brought proceedings.

Mr O admitted the sub-let in January, which was on an agreement for 3 months. His evidence was that he was panicked by the rent arrears and the previous possession claim. As he could not get funds before the student loan was paid, he had let the property to pay the arrears. At first instance trial, it was agreed that the first sub-tenant had moved out in February 2010, Lewisham alleged there had been a further sub-let and this was upheld. There was no challenge to the validity of the NTQ, or to Mr O’s loss of security of tenure.

Possession was granted at first instance, within 14 days, with no reason to extend time under s.89 Housing Act 1980.

Mr O defended at first instance and on also as the basis for permission to appeal on the following grounds:

i) A gateway B defence: Lewisham had – as required – produced a protocol for care leavers over 18. Two clauses of the protocol were relevant:

3.13:
Ongoing advice, information and support will be available to the young person until the age of 21 (24 if in full-time higher education) by the Leaving Care Service.

3.14:
Should any tenancy issues arise Housing must, in the first instance, try to resolve the issues with the young person. If this fails, they should then contact the LC Social Worker/PA.

In Mr O’s case, there had been no attempt by Housing to contact the Leaving Care Social Worker. Although Mr O had spoken to the social worker about the arrears and possession claim on that ground, and the social worker had told Mr O to speak to Housing, there was no contact between Housing and the social worker before rent arrears possession proceedings, or the subsequent proceedings, were issued. Lewisham had acted in breach of its own policy. Barber v. LBC Croydon relied upon (our report here). A later letter dated October 2010 by the Leaving Care worker made clear that their view was that they supported the continuation of Mr O’s tenancy.

ii) Proportionality. Mr O had made a panicked decision faced with rent arrears possession proceedings where Lewisham were well aware of his difficulties in the delayed student loan. He was a care leaver and a vulnerable person, who despite this was in higher education, studying for an accountancy degree. He had a partner and an infant child. A sub let had been admitted but was of limited duration and had no purpose save to try to resolve the arrears. Again, the Claimant should not have instituted possession proceedings without consulting the Leaving Care team as per the policy. There was no evidence that any of this had been considered by the Claimant.

At first instance, the District Judge dismissed both grounds of defence. At the permission to appeal hearing Lewisham argued on the gateway B ground that:

the test to be applied by the local authority was that in Doherty i.e. was the decision one which no reasonable person could consider justifiable. Mr Browne [for Lewisham] referred to Woolf J in Grant: “the fact that a body must have reference to a policy does not mean that they have to follow it, but if they do not then they must give good reasons for not doing so.

At first instance, Lewisham had argued that there was nothing in the later representation by Leaving Care that had not already been considered by Housing and also that Leaving Care had been aware of the proceedings and should be taken as having made all the representations that they wished to. The Circuit Judge, reviewing the first instance decision, held that:

He decided that although there was a breach of the policy, the views of the Leaving Care team had been provided and that despite this flaw it did not affect the overall decision to proceed with the claim for possession. He felt that any benefit the Appellant should have obtained under the policy had in fact been obtained. DJ Thomas made no error, he did not misunderstand the facts, he did not leave any relevant material out, or take into account irrelevant material. He was entitled to make the judgement he did.

On the proportionality ground, the Circuit Judge quoted the District Judge’s judgment:

It is undoubtedly the case and that Mr Okpur has had many difficulties in his early life, but despite those difficulties he is determined to furnish himself with an education and the ability to make a contribution to himself, to his family and the society he finds himself in. But, he did undertake, he says in desperation, a subterfuge in order to deal with that situation. That subterfuge deprived him of the security and as I find, there was a further subterfuge after the first one was discovered. That has brought about the situation which he finds himself in and I find that it is not necessarily a disproportionate response by a local authority, aware as it is of his background, aware of his wife and children and aware of the other circumstances, to balance against that their duty to properly manage their property and to take actions when appropriate if the use of housing is abused. Therefore, I find that it is not a disproportionate decision in this case to conclude that a notice to quit should have been served or that these proceedings should have been brought. Therefore, I find that that ground also fails.

The CJ found that the DJ had properly taken into account Pinnock and Powell, and that his decision that possession was proportionate was within the ambit of a reasonable view, having considered Mr O’s circumstances. Permission was also refused on this ground.

There was a further complication with the nature of the hearing. The Circuit Judge had decided not to consider the application for permission on the papers but to set down an oral hearing, and then, ‘in order to save time’, to treat the hearing as a rolled up hearing – with submissions on both permission to appeal and the appeal. However, the decision made on each ground of appeal was to refuse permission:

In considering the whole of the careful judgement of DJ Thomas, I am not satisfied that he reached a decision which on any analysis is clearly wrong or outside the generous ambit within which reasonable disagreement is possible. I am satisfied that he took into account relevant matters, did not misunderstand the facts, and certainly understood the law. I am not satisfied that his decision was one which no reasonable judge, faced with the same facts, could make.

Overall I am not satisfied that this appeal has real prospects of success. There is no evidence before me of any other compelling reason for granting permission to appeal. If for some reason I am wrong, I would refuse the appeal for the same reasons.

The effect of this refusal of permission is to prevent any further or renewed appeal as this was an oral hearing (despite the paper application stage having been skipped), s.54(4) Access to Justice Act 1999 and CPR 52.3(2). Thus the usual option of renewing a refused paper application to the appeal court was not open to Mr O. The case can go no further.

Comment
While the Supreme Court left proportionality to the ‘good sense’ of the County Courts, a case like this strikes me as highlighting the need for at least an element of benchmarking by the higher courts. It is clearly a decision which could easily have gone the other way. There are also some elements that need the higher courts to address them. For example, the occupier’s circumstances – Pinnock & Powell seem to suggest it is circumstances at the time of the proportionality review that should be considered, but then what of a case like this, where the history is a clear factor in the occupier’s vulnerability (and the details of the history are awful)?

Some cases brought on proportionality almost certainly shouldn’t have been. This doesn’t strike me as one of those cases.

On the gateway B and failure to follow policy, the decision was that the failure made no material difference and that the Leaving Care Team was aware of the situation ‘from a relatively early stage’ and had had the opportunity to make representations. But the decision to seek possession was made without contacting the LCT and without considering any factors they may have raised. Against this were just un-evidenced assertions from Lewisham Housing that they had considered all the issues anyway, although the fcators stated did not include Mr O’s care history.

The thrust of Lewisham’s policy at 3.14 is arguably that the LCT should be involved in seeking to resolve tenancy issues, not simply ‘make representations’ for housing to consider in deciding whether to evict. The ‘multi-agency’ approach this would suggest would make the failure to follow policy closer to that in Barber. Again, I think this is a decision that could easily have gone the other way.

But this case is not going to be the one that exercises the higher courts. The CJ’s decision – of the Court’s own motion – to skip a paper application and set the matter down for a permission hearing (and further confuse matters by also treating it as a substantive appeal hearing, rolled up) may have the merits of administrative efficiency, but has arguably deprived Mr O of the opportunity to take the matter further. If permission had been given, but the appeal dismissed, thing would have been otherwise.

While there is little that can be done if the court makes such an order of its own motion, it is a procedural difficulty of which appellants should beware.

With thanks to John Gallagher for details and transcript.

The claimants appear to have been too excited to wait until then (or, more likely, but less poetically, they wanted to avoid the expense of a trial) and so appealed to the Court of Appeal. On Wednesday Stanley Burnton LJ refused permission.

What is interesting is that he made it quite clear that, even though this was a second appeal, if Bean J had made his decision following the a trial of the claim, the Lord Justice would have given permission regardless of the outcome. The Court of Appeal are as interested in resolving this question as the rest of us.

However proprietary estoppel is fact sensitive stuff. The Lord Justice noted that the claim has a trial window in April/May 2012. There was therefore nothing to be gained by having the Court of Appeal resolve the point before then. It might be that the defendant failed to establish the factual basis of her claim, in which case there would be no need for an appeal – and we would all remain in the dark. It would also be better for any prospective appeal to be dealt with on the basis of facts found at trial rather than on pleadings.

We will keep you posted.