The Court of Appeal have refused permission to appeal in Brent LBC v Stokes [2010] EWCA Civ 626 (not on Baili yet) – we reported the High Court judgment here, which contains the summary of the facts and the important decision of King J.  The case raises a really significant point about the seriously arguable test, when defending possession proceedings drawing on a gateway (b) public law challenge.  In essence, the point is about CPR 55.8(2) – where a possession claim is disputed on grounds which appear to be substantial, the judge can give case management directions; if there is no such defence, then possession should be ordered.  How can you reach the “substantial” threshold on a gateway (b) defence/counterclaim when you haven’t had sight of the claimant’s papers which may (or may not) enable your gateway (b) defence/counterclaim to be made out?  The concern of the courts so far has been to stop fishing expeditions so that “ordinary” possession cases (is there such a thing any more?) can remain manageable (at [17]).

The position of Counsel for Ms Stokes was as follows:

What is said is that the Council is under a positive duty not merely to state the reasons for the decision which it has arrived at … but also to state specifically whether it has or has not — and if it has to what extent it has — taken into account the matters raised by the occupier as arguably relevant to a decision to seek possession.

In the absence of disclosure, any defence is likely to be no more than a list of matters which the claimant ought to have considered.  Significantly (to me, at any rate), by contrast to possession proceedings, if the Defendant seeks judicial review of the claimant’s decision, then they are likely to get a fuller explanation through the pre-action protocol procedure.

The CA (Patten LJ giving the only reasoned judgment) made the following points: the claim was really about the limits of the duty to give reasons under common law, and not really about CPR 55.8(2) (but significantly does not seem to address how/whether that common law duty might be developed in this context beyond the observation that it may raise matters which are irrelevant to the decision which the claimant made).  The analogy with JR “… does not assist because that does no more than to give the decision-making authority the opportunity to expand upon its reasons for the decision under challenge and so possibly avoid the need for litigation”.

Perhaps I say this far too often, but this decision just seems and feels wrong.  Occupiers can use the gateway (b) defence/counterclaim to possession claims but then they are unable to pursue that defence/counterclaim unless the claimant (unwisely, I presume) gives reasons and/or disclosure.  This is giving with one hand and taking away with the other.  The CA refer to McGlynn (links to our post) as being based on a “simple analysis” but that analysis was only possible because of the disclosures made by Welwyn Hatfield in the course of McGlynn’s occupation of the property about their relevant policies.

I feel an ECHR application coming on …

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