London Borough of Brent v Corcoran & Anor [2010] EWCA Civ 774

While we wait for the Supreme Court decision in Pinnock, which was heard last week, it seems that the Court of Appeal is determined to set practical limits on the operation of the public law defence. In this case, Corcoran and O’Donnell – the Appellants, were granted permission to appeal, but:

The only reason we granted permission is that we considered it important to make it absolutely clear that public law attacks of the technical and over-theoretical sort advanced here have no merit whatsoever in this sort of case.

The case also raises issues about the Court’s discretion to suspend a possession order under s.4 of the Caravan Sites Act 1968 and the effect of delays in the Court process.

Brief Facts
Mrs Corcoran and Mrs O’Donnell were each the licencee of a plot on a travellers’ site in Wembley. The licences contained conditions that prohibited:

• parking more than 1 vehicle and 1 caravan on the pitch
• relatives and guests bringing caravans onto the site without written permission from the Council
• using the pitch for taking, selling or supplying drugs and receiving, storing or selling stolen goods, or harassing or causing distress/ inconvenience to others, including the Council’s staff, by themselves or anyone living with or visiting them.

On 14 March 2008, the police carried out a raid on the site. Mrs Corcoran’s pitch had a large mobile home and a small white caravan occupied by Eddie Corcoran (Mrs Corcoran’s son) on it. Mrs O’Donnell’s pitch had a large mobile home, a cream caravan and a small white caravan. The Police found:
i) Pitch 1 (Corcoran):
Small white caravan/adjoining wall: 37 wraps of cocaine, an air rifle and a knuckle duster;
ii) Pitch 11 (O’Donnell):
Small white caravan: 28g cocaine, scales, other drug paraphernalia, 3 lumps believed to be crack cocaine, weapons including a replica MP5 machine gun, knuckle duster, knives and machetes and 15 national insurance cards, fifty death and birth certificates, various documents in the names of individuals unconnected with the pitch, 3 satellite navigation systems (one of which was reported stolen) and in excess of £1000 cash.
Eddie Corcoran was arrested and convicted of possession with intent to supply. Patrick O’Donnell (Mrs O’Donnell’s nephew) was arrested but not charged.

On 31 March 2008, Brent served notice terminating the licences and on 1 May 2008, Brent brought possession proceedings. At hearing on 16 May 2008, HHJ Copley made orders for possession but adjourned hearing on the issue of whether the possession orders should be suspended. The Defendants’ argument that there were public law defences to a possession order were rejected. No written order was drawn up at the hearing and no case management directions given. In the event, no determination was made on the suspension or otherwise of the possession orders until September 2009, 15 months later. In the meantime, in November 2008, there was an incident in which two of Brent’s officers on the site were shouted at and told to leave the site by a group of residents. Mrs C and O’D denied taking part, but the Judge later found that they had, albeit not playing a major part.

At the hearing in September 2009, HHJ Copley suspended both possession orders for a year on the basis of undertakings not to permit Eddie Corcoran or Patrick O’Donnell on the pitches and not to interfere with or harass Brent’s officers in exercising site management functions.

Mrs C & O’D appealed on the dismissal of their defences. Brent cross-appealed on the Judge’s decision to suspend the orders.

Held: (Jacob LJ)
On the public law defences.
The question was whether Brent’s decisions were such that no reasonable council could have arrived at them. The Appellants argued that Brent had failed to take into account its duties arising under s.71 of the Race Relations Act 1976 as amended and s.49A of the Disability Discrimination Act 1995 as amended. It was true that Brent did not consider its s.71 duties when deciding to terminate the licences, but this was not a circumstance in which the s.71 duty arose.

The section does not mean that whenever a relevant statutory body such as Brent takes any decision whatever it must give advance consideration to issues of race discrimination. There are decisions which clearly have nothing to do with race, still less racial discrimination.

Here there were severe breaches of the licences, involving criminality, which had nothing to do with race or a particular racial group:

it is entirely far-fetched to suppose that a local authority should think that racial discrimination considerations could come into play. Indeed if anything quite the opposite. If Brent had decided not to serve a notice to terminate the licence on the ground of race it would most likely have been exercising unlawful positive racial discrimination – treating a particular ethnic minority more favourably than other ethnic groups.

This conclusion also applies to the decision to continue and seek outright possession orders.

The s.49 DDA duty was only argued in respect of Mrs O’D, on the basis that a draft witness statement set out that her aged and terminally ill mother was living on the ptich.

Again the Judge thought nothing of this defence and rightly so. It is by no means obvious that the consequences of clear and serious breaches of the terms of a licence can be escaped by reason of the presence of such a person on the site. I can see how the problem would need to be considered, as simple matter of humanity irrespective of any Convention or statutory duty, when considering whether execution of an order for possession should be suspended, and what should be done for someone in the position of Mrs O’Donnell’s mother on enforcement of the order, but that would come later.

Finally, the Appellants argued that Brent had failed to put in place any or sufficient procedural safeguards having regard to the fact that termination of the licence would end the licensees’ contractual rights and that this amounted to a breach of Art 1, protocol 1. This was held to be:

[…] entirely fanciful. In reality what matters is whether there is going to be an eviction. Moreover I do not see what Mr Cottle means by procedural safeguards. He suggested that Brent should have made inquiries of the licensees and other before serving the notices, that in effect there should have been a complete inquiry about all aspects of the potential effect of a notice to terminate the licence. I do not see why, given the clear breaches of the licence conditions.

Moreover the notices to terminate the licences specified the breaches of the licence terms. No order for possession could or would be made without the opportunity of a hearing. All factual matters will come into play before a licensee is evicted. Procedural safeguards are built into the system.

The public law defences were hopeless from the outset. “Such defences should only be raised when they have real and obvious substance: it is not appropriate to construct intellectual edifices of public law without any proper foundations in reality.”

The Appellants’ appeal dismissed.

On the cross appeal of the suspending of the orders.
The judgment of HHJ Copley did not make clear findings in certain key regards. Brent appealed on the basis that the judge had made errors of principle and that his decision was one no judge could reasonably have reached.

Brent argued that the Judge had wrongly shifted the onus of proving whether Mrs C & O’D were aware of the presence of drugs and other items in the small caravans on their pitches to Brent, where instead Brent had the possession orders and it was for the occupants to show evidence of ‘all the circumstances’ justifying suspension. It was not clear from the judgment whether the judge had so shifted the onus and it should have been clear on this point. However, while it was correct that it was not for Brent to prove that the licencees knew of the presence of the items, given the lack of a clear finding on the Judge’s part that it was for them to do so, the appeal on this point could not succeed.

Brent further argued that the judge “failed to take into account, either at all or properly, in exercising his power of suspension, the very fact of the serious nature of the breaches”.

The Judge appeared to say that he had considered the presence of drugs and firearms sufficiently serious to make the possession orders in the first place and that he had therefore already taken them into account. This was an error.

The Judge there speaks as if the making of the order for possession was justified on the grounds of breaches of the licence terms, and that accordingly he had already had regard to the serious breaches. However, once a valid notice to terminate the licence has been given (which does not depend on there having been breaches of the licence terms) Brent is entitled to an order for possession. The judge was therefore wrong to suppose that he had already taken account of the serious breaches in any respect. In the exercise of his discretion under s 4(4) he erred by disregarding, or at least downgrading, the serious breaches on the erroneous supposition that they had come into account already on the question of making an order for possession. It therefore seems to me plain that in exercising his s.4(4) discretion he failed to take into account a highly material factor. So I think he made an error of principle there.

The error appears to have been suggested by analogy with the reasonableness requirement of Housing Act 1985 in making a possession order.

Further, the Judge had made an error of principle in failing to recognise the seriousness of the November 2008 incident, which took place after the possession orders had been made, but before the hearings on whether they should be suspended, when one would expect the occupants to be considering their behaviour.

The Judge had simply said that while this was regrettable behaviour, it was not of such seriousness as to justify an outright order. Again, it was not for Brent to justify an outright order, which appeared to have been his approach.

Further I think the Judge failed to look at the collective effect of all the matters. He had three: the serious breaches of the licence terms relating to criminality operating from the sites, the blatant breach of conditions by bringing extra caravans on the sites and the incident of 17th November. The Council’s management of the site would be likely to pass beyond control if the orders were merely suspended.

In view of this, the Judge’s exercise of the discretion to suspend the order was flawed. Following Beldam LJ in City Council of Bristol v Mousah (1998) 30 HLR 32:

The public interest, in my view, is best served by making it abundantly clear to those who have the advantage of public housing benefits that, if they commit serious offences at the premises in breach of condition, save in exceptional cases, an order for possession will be made. The order will assist the housing authority, who, under section 21 of the Act, have the duty to manage the housing stock and have the obligation to manage, regulate and control allocation of their houses, for the benefit of the public. In my view the public interest would best be served by the appellant being able in a case such as this to relet the premises to someone who will not use them for peddling crack cocaine.

While in Mousah it was the tenant who had committed the crime, here the licencees were, at the least, in knowing and deliberate breach of the licence terms through the extra caravans and the harassment, and had lost the benefit of the licence. Outright possession orders made.

There was no requirement for the Court of Appeal to conduct a fresh assessment of the circumstances up to the date of the appeal hearing. The decision should be made on the facts as they were at the time of the first instance decision, contra the Appellant’s submissions that this would be in breach of Convention rights (LLoyd LJ)

Lord Justice Wilson dissented only on ‘a matter of emphasis’, that it was putting it too high to say that it was a decision that no Judge could reasonably reach. However, the Judge has failed to address the significance of the November 2008 incident when considering whether there was a basis for a sound hope that the previous conduct would cease.

On s.4(4)(c) Caravans Act – whether the licencees had made reasonable efforts to find other accommodation, the Judge did not make a clear finding, although this was something he should have had regard to under the Act. This was a disputed issue, but

Perhaps the evidence justifies no more than the view that it may or may not prove easy for the respondents to find other, suitable accommodation. We have to weigh also the length of time, namely 13 years, for which the respondents have lived on the site; the unacceptable length of time, namely two years, since the orders for possession were made, although in my view such is a point which cuts both ways; and in particular (whether falling to be weighed under Article 8 of the ECHR or otherwise) the presence on the site of other members of the respondents’ close-knit families. But the egregious misuse of their pitches revealed on 14 March 2008, together with the likely nature of their future conduct demonstrated by the incident on 17 November 2008, yields a conclusion of the balancing exercise in favour of a refusal to suspend enforcement of the orders.

The Court of Appeal also made clear its view that the delays in the process of the claim were completely unacceptable. 15 months had elapsed between possession orders and the hearing on suspension, when the longest that the order could be suspended was itself 12 months at a time. “Courts must make every endeavour to hold early hearings in cases such as these, if necessary transferring them to a nearby centre which can hear the case more quickly.”

Comment
The Court of Appeal expressly cites with approval Toulson LJ in Doran v Liverpool City Council [2009] EWCA Civ 146 to the effect that the test is that the decison to seek possession was one which no reasonable council would have taken in the circumstances known, or which ought to have been known, to it at the time of the decision; and that

This is a high test and rarely likely to be satisfied where the decision was made in good faith.

The Court adds

As Doran made clear, the real battle, once a notice of termination is (apart from any question of public law) valid, comes when the question of suspension of an order of possession comes to be considered. All factors (including but not limited to all Convention considerations) can come into play then.

This would seem to restrict a public law defence, in cases where there Court can exercise some discretion over suspending or postponing an order, to challenging the decision to serve notice to quit.

As a decision, this must surely be distinguishable from summary or mandatory possession claims where the principle in Barber v Croydon LBC[2010] EWCA Civ 51 was that what was at issue is a series of decisions, from deciding to serve notice through to enforcement of a warrant.