While we wait for the Court of Appeal judgment in Weaver v London & Quadrant – the case was heard in the last week of February, I believe – we have a judgment along the way, specifically on Weaver’s application for a protected costs order (PCO). It is tempting to see this as something of a parable or synecdoche of the practical frustrations of bringing housing cases, and perhaps of the approach of certain large RSLs.
So, Weaver v London Quadrant Housing Trust [2009] EWCA Civ 235.
As all will recall, L&Q were declared to be a public body for the purposes of the Human Rights Act (and also judicial review) in the JR hearing, while Ms Weaver’s challenge to the Notice seeking Possession under Ground 8 and consequent possession order was dismissed. L&Q specifically requested that the finding that it was a public body be in the form of a declaration so that it could appeal, and appeal it did. The Equality and Human Rights Commission are seeking to intervene in the appeal, and had, at this point only permission to make written representations.
Ms Weaver was legally aided. On the appeal, the Legal Services Commission, in its infinite wisdom, decided that it would only fund Ms Weaver on condition that it would not be liable for L&Qs costs, of L&Q won the appeal. (Why on earth the LSC reached this conclusion when this would appear to be the very archetype of a case that has broader public interest and relevance is beyond me, but then much of the LSC’s decision making is beyond me).
If Ms Weaver was to proceed, she had to apply for a PCO to the effect that she (and the LSC) would not be liable for L&Q’s costs if they won. L&Q, for reasons best known to themselves, opposed the application.
It should be noted – particularly for future use – that it is open to the court when granting leave to appeal to set costs conditions, including, for example, that the costs of the appeal be wholly borne by the appellant, CPR 52.37. That did not happen in this case. No costs conditions were set, apparently because everyone assumed that the LSC would fund such a major case.
Now, we enter a strange parallel world [wobbly screen effect] of L&Qs grounds of opposition, a stance described by Elias LJ as possessed of ‘a considerable air of unreality’ [para 7] and by Toulson LJ as causing him to be ‘puzzled by what the Trust has hoped to achieve’ [para 17].
L&Q maintained that the application did not meet the criterea for a PCO as set out in R(Corner House Research) v SSTI [2005] 1 WLR 2600 at para 74.
To begin with, those rules applied to applicant (or appellants), whereas Ms Weaver was the respondent in this appeal. The Court of Appeal noted that this was an unusual case, where the Corner House principles would not precisely apply, but this was common law jurisdiction and open to development. There was no doubt that in principle an application for a PCO was open to a respondent.
In his skeleton, but not at the hearing, Christopher Baker for L&Q argued that if one had regard to the financial resources of the applicant and respondent, it was not necessarily fair and just to make the PCO, because L&Q was a charitable and non-profit making body. The Court noted that it was ‘sensible’ that L&Q chose not to pursue that argument, give the evident disparity in financial resources.
L&Q then contended that Ms Weaver had a private interest in the outcome of the case, while Corner House restricts a PCO to those with no private interest. Pressed on what the private interest was, L&Q asserted that Ms Weaver would have the benefit of public law protection as an assured tenant. The Court of Appeal was not prepared to accept that this qualified as a private interest. In Goodson v HM Coroner for Beds & Luton [2005] EWCA Civ 1172, the Court accepted that a private interest that will apply to the population or a section of the population as a whole would qualify, and that was the case here. The appeal was being conducted in the public interest at the behest of the trust, not to assert the respondent’s private interest. The possession order would stand anyway.
In response to the Court’s concern that not making a PCO would result in the respondent have to take no further part in the case, and be acting reasonably in doing so, L&Q submitted that it was ‘not crucial that the applicant [Ms Weaver] be represented’ [para 14] as the divisional Court judgment set out the contending arguments in some detail. The Court of Appeal kindly avoided the obvious rejoinder – that in that case L&Q didn’t require representation either – and instead dismissed this out of hand. It was ‘important that this case be properly argued before the court’ and it is not an answer to say it could get by with the lower judgment [para 14]. In addition per Elias LJ:
There can be no doubt that this case is raising an issue of some public importance — of great importance, in particular, to the Trust. It is vital that there is proper representation for both sides before the court. If the claimant does not obtain the PCO that they seek, with the result that they are not represented before the court, then either the Equality and Human Rights Commission would have to take the burden of providing the necessary representation or the court would have to appoint an amicus. I have little doubt that if it had been appreciated when leave was granted that the court might have to appoint an amicus, permission would not have been granted on that basis. In any event it would now involve a delay to take the step. Perhaps the most important point is that, if either of those two bodies, the amicus or the intervenor, were to be running the arguments against the Trust in the appeal, then the Trust would, in any event, not be able to recover any costs against either of them [para 7]
Toulson LJ adds that:
The Trust might consider itself fortunate that it was not made subject to a condition requiring it to pay both sides’ costs of the appeal, since the appeal was being brought in order to establish a point of law of general importance to registered social landlords. [para 16]
Application for a PCO granted in terms that L&Q shall not recover any costs in the appeal against either the respondent or the LSC.
Is it just me, or is this not madness multiplied? – on the part of the LSC in the condition of its funding, certainly, and in then the extraordinary attempts by L&Q to oppose the application when, as the Court of Appeal points out, it was not going to gain anything, let alone the costs, in doing so. In fact, had L&Q been successful, thus requiring an amicus to be appointed, one imagines L&Q might well have faced a rather hostile court from the get go in the appeal hearing.
Little known about RSLs which were largely formed by LSVTs of council houses was that in the promotional literature they carefully and perhaps purposely left out that upon transfer tenants would have lost the right to challenge their new landlord under the Human Rights Act. This information must have been known by the authorities, especially as it was orchestrated by the ODPM now the DCLG. Quietly up to 2,000,000 residents of former council homes have had their human rights removed with not a whimper because they did not realise it. This in it self is, in my opinion, a calculated denial of their human rights !
The effect of this is apparent when one comes to rented Sheltered Housing located in RSLs. Current budgetary policies are resulting in site-specific Wardens being removed from Sheltered housing across the country. Although RSLs are supposed to hold consultations on this quite a few do not, and some of those that do have plainly made the decision already but hold the consultation to tick the box. In any event a consultation means precisely nothing if the RSL wishes to proceed regardless of what the residents have said.
Effectively this has removed any rights by the residents to fight against this except under removal of ‘ legitimate expectations’ which is a human rights category. If the present we have a case in waiting J Garbet -v- Circle 33 housing in which we first have to establish that RSLs are fulfilling a public function. Sheltered Housing UK Association believes that they are subject to Public Law because of the many rules, including the right to replace managements which are retained by the Government. Other aspects include the setting of rents by the Government, presently at inflation, plus half a percent, plus £2 per week for Rentrestructuring. In some cases, my own for example, the local council have preserved positions on the Board of the RSL .
My own RSL,for example, shares its allocations of tenures with the council.
The council hold the contract and the right to enforce it in default
No other private companies are subject to such control, nor would they tolerate it.
The indepth reason why these controls are in place is because a LSVT needs the vote of residents to opt into it and the Government has an interest in promoting LSVTs. However, residents of council houses were not unnaturally suspicious of what they saw was an attempt to privatise their houses and had to be placated with Government promises of controls over the RSL they were being asked to transfer to. The Government are stuck with this as much as the tenants are. The controls cannot be withdrawn now because that would appear to have been a trickery upon tenants of council houses to get them to vote for LSVT and then abandoning them afterwards to full privatisation.
Vernon, you are right that losing the, albeit limited, protection of the Human Rights Act was and may be a component of stock transfers. But for clarity, ‘legitimate expectation’ is not a human rights category, it is a public law category. There is an overlap, as both public law and human rights challenges would require the ‘authority’ to be a public body or be carrying out a public function, but the definitions are not wholly the same for each.
The level of public finance and public control/direction of RSLs was a key point in Weaver v L&Q at judicial review, and no doubt was at the Court of Appeal – we’ll know soon. Your test case in waiting may well fall at first hurdle or turn out to be unnecessary, depending on the result of Weaver…