One of the three cases mentioned in S v Floyd as forthcoming test of the application of Lewisham v Malcolm on the application of the DDA to possession orders has been heard and adjourned by the Court of Appeal.

LB Croydon v Wright [2008] EWCA Civ 607 (not on Bailii) was adjourned until the Lords have heard Malcolm despite Croydon wishing to press ahead. Croydon were apparently concerned that the Lords judgment might not cover the broader issues of the Malcolm judgment, in particular concerning the mind of the alleged dicriminator. The Court of Appeal found that improbable, but suggested Croydon might intervene in Malcolm if they wished.

Croydon v Wright concerns eviction from temporary accommodation (non-secure tenancy) awarded after successful homeless application, s.193(2) HA 1996. The tenant built up rent arrears. A possession order was made – which was outright, but Croydon didn’t pursue eviction while mesne profits were paid regularly. The (ex)tenant applied for a suspension and claimed that her diabetes and dyslexia were disabilities which were connected to the accrual of arrears. This then went to appeal, Eady J ordering a remittance back to County Court to determine the factual evidence on disability and causation. This, I think, Croydon appealed to the Court of Appeal.

It is worth noting that LJ Jacob, LJ Tuckey and LJ Hughes all sound a clear concern over Malcolm’s apparent statement that the mind of the alleged discriminator was irrelevant to the fact of discrimination. LJ Tuckey notes that Novacold, which was taken as the authority for the proposition, was a judgment of LJ Mummery, who then took a very sceptical view of the Malcolm formulation in S v Floyd.

Clearly one portion of the Court of Appeal is distinctly concerned about the judgment of another portion, and messages are being sent to the Lords .

(Many thanks to J for the pointer and accidentally rescuing my day).