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By Dave
18/11/2009

A curious footnote (with benefit of transcript)

We previously wrote up Mich-Onyibe v Wandsworth LBC [2008] EWCA Civ 1649 as “a curious footnote” to homelessness jurisprudence, basing our note on an Arden Chambers e-flash.  Thanks to the Chief we now have the benefit of the transcript.  The facts were as stated in our previous note.  Broadly, the problem was that the Recorder sitting at the Wandsworth County Court on a s 204 appeal – on suitability of accommodation offered in discharge of duty by Wandsworth – gave a judgement in which he did not give reasons at the time but said “I will send further written reasons within the next few days”.  The parties pressed the Recorder for those further written reasons.  He did not provide them.  He then retired.  The Court of Appeal directed that there be a re-hearing by the County Court.

Both Counsel agreed before the CA that the reasons given by the Recorder were inadequate.  The question for the CA, on which the transcript gives further elucidation, was whether it should re-hear the appeal itself (which had been conducted over three days in the county court), as was argued by Counsel for Wandsworth.  This may well be a rather more significant issue than I had originally thought (and more than a curious footnote at any rate).  In essence, the argument in favour of a re-hearing by the CA was that they were not greatly inconvenienced by the lack of a county court judgment as the focus would be on the review decision and whether it met the Wednesbury grounds.

Arden LJ (with whom Jackson LJ and Sir Mark Potter agreed) said that “what we are really concerned with is the proper use of judicial resources” (at [23]).  It was significant that the 1996 Act placed located the county court as the proper court to hear appeals and was an indication of how judicial resources should be allocated.  That was not an absolute reason why the CA should refuse a re-hearing, leaving open the possibility that in an “appropriate case”, they may conduct such a re-hearing.  But there were two particular issues on which Arden LJ relied in refusing a re-hearing.  First, although neither party was to blame, “it seems to me that Wandsworth must take the blame for some of that delay because it would have been open to it as soon as it became apparent that further reasons would not be given to consider whether the appeal should be conceded, as it has now been conceded, and if that had happened allowing the appeal by consent so that it could be remitted back to the county court” (at [25]).  Secondly, the issues in the case went beyond technical points of law – based on the minded to letter, which was argued to be inadequate (as to which see esp Lambeth LBC v Johnston [2009] HLR 10 and Banks v Kingston-upon-Thames RLBc [2009] HLR 29) – and went into substantial grounds of appeal (based on unfairness, failure to take account of personal circs; perversity etc).  If there were to be a rehearing by the CA, it would be by three judges as opposed to one; although the CA bench might have time left available in the day “… it should be borne in mind that these days members of this court have substantial administrative burdens and a volume of paper applications to deal with and any court time will be used for good purpose” (at [26]; poor them, it’s not all judging, you know).

One other matter was considered (at [27]).  Counsel for Ms Mich-Onyibe, who supported a county court re-hearing, did so on the basis that she had aso refused temporary accommodation and was currently living with her daughter.  There was no prejudice to Wandsworth in the matter going back to the county court and she would rather it did so “so that she is not contending that she is prejudiced by having to live with her daughter” (it being her case that she needed constant attention from her daughter).

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