A cautionary tale

Or the story of the warrant request that wasn’t there.

Hallam-Peel & Co v London Borough of Southwark [2008] EWCA Civ 1120 is a second appeal from a wasted costs order against Hallam-Peel, a legal aid housing firm, made during stay of warrant proceedings at Lambeth County Court.

Hallam-Peel were acting for the applicant. Before and at the first hearing, an question was raised about whether the warrant had been applied for within 6 years of the date of the possession order (hence not needing permission). Counsel for the applicant was apparently told or shown (not clear) that the request for the warrant was made within time. The hearing was adjourned due to lack of time. Hallam-Peel amended the application, with no issues about the validity of the request for the warrant raised. They also requested disclosure of a number of documents from Southwark, including any Southwark intended to rely on. Southwark provided disclosure, which didn’t include the request for the warrant, which had not been specifically requested.

At the adjourned hearing Counsel for the applicant (the same counsel) apparently had a rush of blood to the head and, for unexplained reasons, demanded to see the request for issue of the warrant (which he may or may not have seen at the first hearing). On seeing it, Counsel decided that the fact that it showed a wrong (lesser) figure for the outstanding arrears meant that he wished to include an additional point in the application – that the request was defective for this reason. He therefore requested a further adjournment to allow the application to be amended again. Counsel for Southwark raised the point that at any adjourned hearing, Hallam Peel should attend to show cause why they should not pay the costs of the adjourned hearing. This appears to have been purely on the basis that the applicant was legally aided and so protected from costs in person. DJ Eastman took this point and, apparently blind to any conflict of interest raised, told Counsel for the applicant to seek instruction on whether to pursue the validity of the request for the warrant and with it a show cause to Hallam Peel as to why they should not pay the wasted costs of the hearing if it were to be adjourned. Credit to Hallam-Peel, the instructions were to go ahead. (Although frankly, I don’t think Counsel had hit on a particularly good point – a wrong figure lower than the actual one is not going to attract the wrath of a DJ, let us be honest).

The matter was settled in the meantime, leaving the hearing of the show cause on the wasted costs. At the hearing in front of DJ Jacey, Southwark argued that Hallam-Peel, by failing to request the disclosure of the request for a warrant at the same time as the other disclosure, had acted unreasonably by then demanding a further adjournment to amend the application on the basis of that request. Hallam-Peel argued, perhaps not wonderfully, that evidence reagrding th warrant has been raised at the first hearing abd Southwark had been told to disclose relevant documents. They admitted they had not specifically requested the document in the interim.

DJ Jacey found they had acted unreasonably and made the wasted costs order, on the basis that the issue of the details on the request should reasonably have been taken up at an earlier stage. it was a breach of duty to the Court not to ensure that “all matters are properly raised before the court and in good time so that everybody can deal with the matter and the court itself has sufficient time to deal with them.”

On appeal HHJ Welchman found DJ Jacey’s decision to be reasonable with no error of law.

If by this point, your jaw has hit the floor, hurray for the Court of Appeal. Hallam-Peel were granted permission for a second appeal and made a somewhat different argument via Counsel (not the same counsel!), resisted by Southwark on the basis that it had not been raised before. This time H-P argued that

The only charge against Hallam-Peel was that they could and should have asked for the production of the request for the warrant earlier than 14 July 2005 but had failed to do so. The answer is that they did not ask for it before then because they had no reason to do so. It is not suggested that there was anything in the material they had seen to suggest that the request was irregular. They therefore had no reason to assume or even suspect that it was or might have been […] There was therefore strictly no basis upon which Hallam-Peel could properly have sought its production; or at least it could not be said that it was unreasonable for them not to have done so. In unexplained circumstances – and the evidence suggests that not even Hallam-Peel know them – counsel for Mr Dubois asked at the hearing of 14 July 2005 for the production of either the request or Southwark’s file. Having seen the request, he then raised the new point based on the irregularity in it, which resulted in the adjournment. No-one has suggested that counsel acted unreasonably by doing what he did. The sole villains of the piece are Hallam-Peel, who have been held vicariously liable for its costs consequences. They have been punished for not anticipating counsel’s thought process. Since, for reasons submitted, there was strictly no basis on which they might reasonably have earlier pressed for the production of the request, there was no basis for a charge of unreasonableness sufficient to sustain a wasted costs order.

Thankfully, the Court of Appeal agreed. While noting this was a new argument, not raised in the courts below (where H-P had actually dug themselves into a bit of a hole), they could not fail to find that DJ Jacey and HHJ Welchman were in error. Neither judge below had actually asked why it was said that H-P had acted unreasonably. They simply found that, in view of the adjournment and amended application, it was unreasonable not to have requested the document earlier. However, if the why was examined, there was no unreasonable behaviour (and thus no breach of duty to the court) because before Counsel had a lightning flash at court, there was no issue on the validity of the warrant and no reason to suppose there was one. So:

The point about the present case is that it does not appear to have occurred to Hallam-Peel that a sight of the request might open up a new avenue of argument. Even if that is to be regarded as a shortcoming on their part, and I do not decide that it was, I refuse to accept that such a shortcoming can or should fairly be castigated as “unreasonable” conduct on their part, involving a breach of duty to the court, such as to justify a wasted costs order against them.

There are a few observations to be made here (not least that there is one counsel that I doubt receives many instructions from H-P anymore, having dropped them in this mess in order to pursue what looks like a pretty iffy point on the spur of the moment). But perhaps the main one is that if this had been upheld, litigation in these matters would have become ridiculous. Defendant solicitors would demand disclosure of absolutely everything from the local authority, just to avoid the prospect of a wasted costs order if something turned up in an unrequested document later on, with an inevitable adjournment request. Local Authorities, already pretty bad at disclosure in a timely manner, would stagger under the demands and end up adjourning even more hearings for time to disclose.

Southwark, or counsel for Southwark, rather short-sightedly chose to pursue a wasted costs order and this was clearly, as the Court of Appeal found, simply because the applicant was legally aided and this was the only way to retrieve costs. But a precedent for a wasted costs order simply because counsel on the spur of the moment spotted something in a previously unrequested document, (let alone a superhuman standard of perfection in the conduct of the solicitors) would undoubtedly have bitten the local authority side badly all too often as well.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession and tagged , , , .

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