11/09/2008

Weaver un-appealed?

[Edit 16/09: We now have contrary information, also ‘authoritative’ in source, also unconfirmed, that the appeal is going ahead. So, until we have further info, your guess is as good as ours.]

Thanks to Ethan at ‘That Snail..’ for passing on unconfirmed news (aka a rumour) that London & Quadrant have decided not to appeal R(Weaver) v L&Q, which, lest anyone forget, was the landmark decision on RSLs being public bodies in their housing function for the purposes of judicial review.

If true, this is a surprise, to put it mildly. Does anyone have confirmation?

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

27 Comments

  1. Ethan

    If anyone has confirmation of this little rumour I have started please speak up!! The source is good, but both NL and I are astonished…lets hope there is a reason why I am not a journalist!…

    Reply
  2. NL

    As a largely, if not exclusively, tenant side person, I’d be perfectly happy if there was no appeal. I would still be very surprised, though.

    Reply
  3. Ethan

    I hadn’t forgotten that NL, but as good as it was for the tenants, it was a little astonishing at the time, enough for the appeal that we all expect(ed) L&Q to make.

    Funny old world isn’t it?

    Reply
  4. Michael

    This is good news.

    Councils pimp their stock to any fluch John just to side-step JR and the more those organisations who rely (almost) exclusively on public money are held to account in the public realm the better but “tenant side person” ??? Oye vey, aye aye aye, come on, gercha!

    You just love a rapscallion (read scumbag) NL and to hell with the grunt class.

    Reply
  5. NL

    @Michael: Sigh. We’ve done this dance before. Unless you can can come up with some new moves of interest, I’m sitting it out.

    Reply
  6. michael paget

    I don’t see how L & Q could have appealed because it won on the actual decision that no legitimate expectation had been created.

    Reply
  7. Nearly Legal

    Surely the finding that it was a public body etc. would have been open to appeal?

    Reply
  8. Derek

    Again, Michael (not Mr Paget) is wide of the post and I think it would be true to say, bringing down the quality of the debate.

    When we represent tenants as clients we are concerned with our client’s specific interests and the issues in hand, not the world at large. Michael’s previous post about his firm’s success in defeating an ill-prepared ASB on ‘a Newham estate’ perfectly illustrates how distant he is from the philosophical tenets of the law.

    If Newham council’s legal representatives lost their action against their tenant which led those tenants to remain in their home, then that is a fault of theirs and not of the dilligent lawyers who defended them.

    If Michael is not able to elevate his comments above his tabloid outlook of the world then perhaps he should restrict them to the public bar of his tenement pub!

    Reply
  9. NL

    @J: I imagine that might take a while to de-list, even if a notice of discontinuance has been sent already.

    I was wondering about the issue of how they appealed, given Michael Paget’s point on winning the substantive claim. I can only imagine that the Order dealt with the issue of Public Authority as well as the dismissal of the claim. Certainly the judgment reads like a combination of permission hearing and substantive hearing conjoined.

    Reply
  10. J

    I was told that a declaration was granted to that effect in order to enable L&Q to appeal against the declaration

    Reply
  11. NL

    @J: That makes sense. It would have been daft to leave an issue like that unappealable on a technicality.

    Reply
  12. dave

    I talked to somebody yesterday who should know whether or not it had been pulled, and they said it was going ahead full steam, and likely to go “all the way”.

    Reply
  13. Ethan

    If I have created an ugly rumour I apologise! I saw it go up in the listings office today. Oh well, I prefer the “it’s going ahead scenario”, rather than the uncomfortable RSLs are now public authorities angle !! phew….panic over everyone…

    Reply
  14. house

    I don’t know I was quite comfortable with RSL’s being public authorities.

    Reply
  15. Ethan

    Somehow I thought you might say that house :P personally I think it makes sense, particularly in view of the sector that they are engaged, professionally it is a nightmare and my phone is tired of listening to them whinge (however much they might pay for it!)…

    Reply
  16. house

    Hehe oh to be able to eavesdrop on such whinging :)

    Reply
  17. J

    According to one of the counsel involved in the case it should be listed for hearing in December 08.

    Reply
  18. Ben

    Sorry to raise another thread on this (not sure if this should be a separate thread) In the light of Weaver, Donaghue etc and all the public body/article 8 stuff that has been flying around over the past few months, does anyone have any views/opinions/anecdotes of where RSL’s currently stand in the concept of ‘Oppression’ in possession claims?

    Reply
  19. NL

    @Ben: Not sure what you mean. Oppression was available as a ‘defence’ against RSLs before Weaver/McCann/Donoghue, and still is.

    Reply
  20. Ben

    Now there’s a surprise. I have been working from the summary by the judge in Southwark v Sarfo 1999 who defined it as ‘Insistence by a public authority on it’s strict rights’, so have always advised that only courts and councils can fall foul.
    Are there any RSL case laws I can look up on this?

    Reply
  21. Mark P

    I’d try and track down the Legal Action Group book ‘Defending Possession Proceedings’ by Nic Madge et al. There’s a brief but very illuminating section on oppression.

    Personally, I think its the best textbook on possession. Well worth having to hand when attending court, and a bargain at £48.

    Reply
  22. NL

    @Ben: the full text of Sarfo is here:
    http://www.bailii.org/ew/cases/EWCA/Civ/1999/1880.html
    Oppression as a ‘defence’ is based on “the general principle that the Court can and will interfere whenever there is a vexation and oppression to prevent the administration of justice being perverted for an unjust end” (Bowen LJ, McHenry v. Lewis [1882] 22 Ch 397). No need for a LA landlord – try Circle 33 Housing Trust Ltd. v Ellis [2005] EWCA Civ 1233 at http://www.bailii.org/ew/cases/EWCA/Civ/2005/1233.html. The tenant lost, but on the facts, not the unavailability of oppression against an RSL landlord, or, if you can find it, William Sutton Housing Trust v Breen, where the tenant was successful.

    Reply
  23. Ben

    Thanks for the prompt replies. I appreciate that. Mark I went through my copy of ‘Defending Possession Proceedings’ I agree, it’s the best around, but found no mention of Oppression, but then again I have the 5th edition and have been putting off buying the 6th as it came out in 2006, and with all the hoo hah of the past couple of years I am expecting a newer one (prudent or, just a tight sod?)

    ON a general note I am surprised that more advocates dont seem to push this issue. My partner was, until recently, a housing officer for a major West Country RSL, whose standard warrant notification letter stated that the only way to stave off the warrant was to pay the arrears in full, an opression issue clearly flagged up by Lambeth LBC v Hughes 2000. I meet people regularly who tell me that their standard letters also say the same thing.

    Back in the 1990s I used to do Lay-rep work at Bromley County Court (before I knew about the concept) and the issue never arose, but given how broadly defined oppression is, and that even genuine errors (as in Hammersmith and Fulham v Lemeh) can give rise to a defence, there must surely be quite a bit of it going on, completely unchallenged.

    Reply
  24. NL

    @Ben: Try paras 28.43 onwards in the Fifth Edition.

    Reply
  25. Ben

    I could kiss you

    Reply
  26. NL

    @Ben: We aim to please, although not necessarily that much ;-)

    Reply

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