Tag Archive for 'costs'

S.190 homeless duties and JR costs

Published
by
NL
on 3 September 2008
in Housing law
. 3 Comments

I’d managed to miss this one somehow, so thanks to the Garden Court bulletin of August for mentioning it.

R (Dumbaya) v Lewisham LBC [2008] EWHC 1852 (Admin) was the end point of a rather messy sounding set of proceedings. The Claimant had been accommodated under s.193 HA 1996, owed the main housing duty. She was then evicted from temporary accommodation for rent arrears. On a fresh homeless application, or alternatively , the LA claimed that she was intentionally homeless. The LA provided accommodation pending s.202 review, but refused to do so pending s.204 appeal, following a negative review.

The applicant applied for judicial review and received an order for temporary accommodation pending JR. In the meantime, her s.204 appeal was settled, with the s.202 decision withdrawn and a fresh review undertaken.

The JR had effectively been forgotten in the meantime, delays in the Admin Court being what they are. At the eventual JR hearing, the issue was a costs order against the LA in the JR proceedings. The LA argued that a) it was not clear whether it was a fresh application that was being dealt with, or a request for a review of the discharge decision and b) the applicant had a route open to her to apply to the County Court under s.204(a) to ask the court to review the decision not to provide temporary accommodation pending the s.204 appeal. Thus the JR was ‘not at the obvious end of the spectrum’ in terms of R (Boxall) v Waltham Forest London Borough Council (2001) 4 CCLR 258.

The Court held that, as there was no requirement for a formal application, only that the LA have reason to believe that a person was homeless, point a) was disposed of. On the point b) - premature application for JR, the Court found that, as the LA did not point out to the applicant that she could apply to the County Court for interim relief if accommodation pending s.204 appeal was refused by the LA, the JR application was not premature. This was so regardless of whether there was a duty on the LA to point this out or not. The case was at the obvious end of the spectrum, given the LA’s refusal to accept a duty under s.190. Costs to the applicant.

Worth noting that the applicant had mostly CAB assistance, not a solicitor on the homeless applications. Although it appears that Morrison Spowart (and Robert Latham) did the JR application, no point was taken by Lewisham (via Mr Broatch) on the applicant having full legal advice on her options at the point of the JR application. In any similar situation, I would expect that to be put up against the ‘County Court relief not being brought to the applicant’s attention’ point.

Worth reading for the transcription of Counsel instructed at very short notice indeed ;-)

Disrepair protocol costs

Published
by
NL
on 31 July 2008
in Housing law
. 6 Comments

Birmingham City Council v Lee [2008] EWCA Civ 891 concerns claimant’s costs incurred while following the disrepair pre-action protocol.

It is not uncommon for a landlord to do repairs after an early notification letter, or letter of claim, but pre issue (not that common, but not uncommon). This leaves the claim as for damages only. Where repairs are outstanding, the small claims limit is £1000 in damages or cost of works. But a damages only claim hits the usual £5000 limit. There are the small claims unavailability of costs consequences, and there is no public funding for small claims. Thus, doing the repairs would often kill a disrepair claim. In the meantime, costs would have been racked up following the protocol steps - which are necessary, with a potential costs penalty for not doing so.

Lee decides that, given the nature of the protocol, a claim begins at the start of the protocol steps, not at the commencement of litigation. Pursuant to CPR 44.9(2), the Court has the power to make a costs order for pre-allocation period, unrestrained by the limitations of whatever track the claim is allocated to.

Where a claim at pre-action protocol stage would be a fast-track claim (works not done), the Court can make an order that the Claimant have their costs, up to the date of the works being done, at the fast-track rate. This is still subject to establishing notice, liability etc., so will likely be ordered as costs in the cause.

The Claimant should apply for such a costs order with allocation questionnaires.

Now, although this leaves the claim ongoing as a small claim, with the remaining costs issues that this implies, it does mean that:

a) the principle is established for the purposes of negotiating costs in settlements, even pre-issue. There is the stick of a threat to issue and seek the costs order to use.

b) depending on the specifics of the case, it may be possible to continue a case that was initially publicly funded on a CFA basis, once it turns into a small claim. The statutory charge for the pre-action period should be covered by the pre-action fast-track costs order, meaning that the client’s damages won’t vanish into the statutory charge. But that is going to take careful evaluation of the client’s benefit.

Third party costs against Councils?

Published
by
NL
on 3 June 2008
in Housing law
. 1 Comment

Very interesting post on Housed this evening on the possibilities of seeking a costs order against a local authority for a possession order obtained by a private landlord where the LA has refused to take a homeless application from the tenant until they are evicted. The post contains an advice by Tony Ross of 1 Pump court on the matter.

Hmm. I need to have a think. What about funding for the application?