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By Dave
16/06/2010

A(nother) Cautionary Tale

In Crawford v Croydon LBC [2010] EWCA Civ 618 (not on Baili yet), the Court of Appeal refused Mr Crawford’s application for permission to appeal against a suspended possession order made against him by HHJ Ellis in the Croydon County Court after a two day trial.  Permission had been refused on the papers, but Rimer LJ had given permission on an oral application limited to certain grounds only.  In the CA, Morgan J gave the leading judgment, with which Carnwath LJ agreed and added a few choice words; Arden LJ agreed with both judgments.  The CA refused permission, it must be said, with a flea in the ear of Counsel for Mr Crawford about the proper drafting of grounds of appeal on a point of law where appeals are limited only to questions of law under s 77(6)(e), County Courts Act 1984.

In summary, at the trial, it was Croydon’s evidence, most of which was hearsay, that Mr Crawford’s son and the son’s stepbrother had been dealing in cocaine from Mr Crawford’s flat.  There was a police raid on 20 June 2008, after which the dealing stopped, although there were “other unsatisfactory events” after that point.  HHJ Ellis had found Grounds 1 and 2, Housing Act 1985, had been made out, that it was reasonable to make an order for possession, but that order should be suspended, as opposed to postponed or outright.  Counsel for Mr Crawford and Croydon had an opportunity to make submissions on the terms of a draft suspended order (handed to the judge at the outset) which required the son and his stepbrother not to attend, visit and/or reside in the flat; and that the SPO should last for three years.  HHJ Ellis disagreed with counsel for Mr Crawford and made an order on the terms of the draft.

The appeal was mounted on a number of grounds broadly to do with the way HHJ Ellis had dealt with: (i) the point that Mr Crawford had not committed any of the alleged acts himself (the CA said that HHJ Ellis was clearly aware of that but “took the real facts into account”); (ii) the hearsay evidence for Croydon (the CA said that he dealt with it “with great care”); (iii) a couple of other points of limited consequence; and (iv) the duration of the suspension.  On that last point, it was particularly unfortunate that counsel for Mr Crawford had not raised that with HHJ Ellis when asked to make submissions on the terms of the order (counsel suggested that submissions were not invited on duration, but the CA’s reading of the transcript was against counsel): “The judge was perfectly entitled having heard the submissions to proceed on the basis that there was no point of controversy as to the duration of the order”.

Carnwath LJ, in agreeing with Morgan J, added some choice words, which, broadly, went something like this: an appeal must raise an error of law; a lack of any evidence to support a finding by a trial judge is an error of law; that is not the same as failing to give “proper weight” to particular considerations, which raises factual considerations, not an error of law; and

To my mind it is important, when anyone is drafting grounds of appeal in a case like this, that specific reference should be made to the statutory limitation on the scope of the appeal so that the judge considering the permission application is in no doubt as to the limitations of his jurisdiction.

Ouch.

[I should have credited Garden Court’s e-bulletin for alerting us to this judgment]

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