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“Could have gone better” corner

Just a brief note on a couple of tangentially housing-related cases, both of which serve as illustrations of how not to go about things as claimants and in one case, as a defendant as well. A little cruel, perhaps, as to be human is to err, but the oops factor is irresistible.

London Borough of Haringey v Hines [2010] EWCA Civ 1111

Ms Hines had purchased a property under the right to buy from Haringey in 2002. In 2008, Haringey brought a claim for rescission of the lease, alternatively a declaration that it was void, damages for a fraudulent misrepresentation said to have been made by Ms Hines on 16 May 2002, alternatively damages on the basis that that misrepresentation was made negligently or innocently. This was on the basis that Ms Hines was not occupying the property as her only or principal home between April 2002 and late 2003, but had made representations that she was in May and October 2002 in the course of the right to buy.

At first instance, the Judge rejected the argument that the lease was void, or capable of rescission by reason of fraudulent or other representation. He did, however, hold that ” Haringey was entitled to damages against Ms Hines for common law deceit and held that the measure was the amount of the discount, £38,000, which Ms Hines must pay back with interest (assessed at £20,822.30)”. He also awarded costs at 80% to Haringey. This was based on a finding that Ms H had not lived at the flat between February and July 2002, so her representation that it was her only or principal home in March 2002 was false. Ms H had maintained that although she was living elsewhere, the property remained her principle residence.

So, Haringey’s only successful claim was based on Ms H making a deceitful representation. On Ms H’s appeal, that all went horribly wrong. For success on a claim of deceitful representation, Haringey had to establish that she was knowingly dishonest in making the March 2002 representation. From the transcript of trial, that case simply hadn’t been put to her in cross-examination:

The striking feature about the cross-examination is, however, that at no point did Mr Grundy put Haringey’s deceit case to Ms Hines: namely, that by her communication to Haringey of 16 May 2002 she thereby dishonestly misled it into believing that she was still entitled to buy the flat when by then she knew she was not.

In the closest approach that Haringey’s Counsel came to putting such a case:

First, Mr Grundy posed what was strictly the wrong question to Ms Hines: her right to buy did not depend on whether or not she was ‘living’ at the flat, but on whether the flat was her ‘only or principal home’: she could have been ‘living’ at Little Pynchons, whilst still retaining the flat as her ‘principal home’. Second, Mr Grundy did not allow her to answer his inaccurate question but answered it for her himself. Third, in her final answer to him, she explained that if the flat had ceased to be ‘her place of residence’ then she recognised that she had to tell Haringey about it, whilst adding that ‘… between that time [which I read as meaning at the material time] I always saw [the flat] as my main home’.
[…]
Haringey’s omission so to put its deceit case to Ms Hines in cross-examination was in my judgment a serious omission. It is a basic principle of fairness that if a party is being accused of fraud, and is then called as a witness, the particular fraud alleged should be put specifically to that party so that he/she may answer it. That was never done in this case.

Appeal allowed and claim dismissed.

And then we have

Broomleigh Housing Association Ltd v Okonkwo [2010] EWCA Civ 1113

Mr O was Broomleigh’s tenant. There had been three claims for possession between 1999 and 2004, settled with costs against Mr O. Mr O didn’t pay them. On 23 May 2005, Broomleigh applied for an order that Mr O attend court for questioning about his means and provide information to enable the costs order to be enforced, on 8 June 2005 the Court made an order that Mr O attend for questioning on 2 August 2005. Then things go a bit wrong. Broomleigh failed to serve papers. A new hearing date was set for 21 September 2005, then another date was set – 12 January 2006.

This was adjourned to 3 May 2006 after Broomleigh again failed to serve papers on Mr O. ON 2 May 2006, Broomleigh wrote to the Court to say that it had again failed to serve papers. The hearing was relisted for 22 November 2006 and an order made for Mr O to attend on that date.

On 25 October 2006, an officer of Broomleigh claimed to have served Mr O. Mr O later asserted that the officer “merely thrust a document towards him which fell to the ground and that he was not sent any other copy of the order”. He didn’t attend on 22 November. On 11th December 2006, the Court made an order committing Mr O to prison for 7 days, but suspended it so long as he attended court on 13th March 2007.

Mr O asked the court for more time to prepare papers, asserting he had not received the Order of 3 May. The hearing was adjourned to 24 April 2007. Mr O again asked for more time to prepare papers and claimed illness. He wrote to the Court asking about his request, but although the Judge had declined to adjourn, the court office didn’t reply to Mr O until 24 May. Mr O didn’t attend the hearing of 24 April, but because Broomleigh hadn’t filed an affidavit of service of the Order setting the hearing for 24 April, nothing was done.

Was that the end of it? No. Broomleigh applied again for an order for Mr O to attend for questioning. On 15 August 2007, and order was made that Mr O attend on 27 November 2007. This was actually served on Mr O by Broomleigh. On 26 November 2007, Mr O wrote to the court asking for an adjournment to February 2008 to enable him to compile information. He did attend court on 27 November, but didn’t answer any questions. On 30 November 2007 an order was made committing Mr O to prison for 7 days, suspended so long as he attended at a time and date to be fixed.

The date was set for 21 February 2008. Mr O failed to attend. Broomfield admitted it had failed to serve the order. ON 24 September 2008 another suspended committal order was made with a date for questioning of 9 January 2009. Broomfield failed to serve the order and Mr O did not attend. Yet another suspended committal order was made, apparently on the basis that Mr O ‘failed to attend’ on 27 November 2007 (when he had but refused to answer questions). The date for the hearing in this order was 5 May 2009.

Mr O was served with this order, although Broomfield alleged he had attempted to avoid it by letting the papers drop to his feet. Mr O did attend on 5 May 2009 and answered questions. The committal orders were discharged.

Mr O appealed the committal orders. The Court of Appeal found that while the court has the discretion to make a committal order:

Since many orders to attend are made in county courts around the country every week, and since failures to attend are not uncommon, one can understand why it should have become routine for the court to respond with suspended committal orders. Nonetheless, given that an order for committal is an order for imprisonment, it might have been thought appropriate for judges to consider the circumstances giving rise to the failure to attend before taking that step. The fact that such orders are suspended and are very rarely, if ever, enforced by imprisonment is not really a satisfactory explanation for this state of affairs: first, because a suspended order for committal is tantamount to a suspended sentence of imprisonment and second, because it is undesirable for the court to approach the making of severe orders with any degree of promiscuity just because it has an expectation, however well justified, that they are unlikely to need to be enforced.

The Court of Appeal set out four options for a judge faced with reaching a decision on the exercise of his/her discretion to make a committal order:

(a) If satisfied not only that the debtor was served with the order to attend but also that there is sufficient evidence before him to justify a finding to the criminal standard that the debtor’s failure to attend (or refusal to take the oath and answer questions) was intentional and that in the circumstances it is appropriate to do so, he may proceed to make a suspended committal order. In our view by doing so he will not infringe the debtor’s rights under Article 6 since the debtor will have an opportunity to challenge the order before it is enforced. If he does make an order, however, he must provide written reasons, at any rate briefly, for recital in the order in Form N79A for service upon the debtor. With respect to Rix LJ, we would not ourselves favour a reference in this context to contumacy, if only because the word is perhaps slightly arcane; nor, with respect to the writer of the commentary on Rule 71.8 in Civil Procedure, Vol I 2010, would we favour a reference to contumely, which speaks more of insolence than of obstinacy. But, in having regard to the circumstances, the judge will of course weigh all the evidence which suggests that there was – or was not – some extra obstinate or obstructive dimension to the debtor’s intentional breach of the order.
(b) If not satisfied of the matters necessary for the making of a suspended committal order, the judge can adjourn consideration of it and, if so, can proceed in one of two ways: either
(i) he can give directions, supported by a penal notice, for a hearing in court, including directions for the debtor (and perhaps also for the creditor) to attend; or
(ii) he can give directions, again supported by a penal notice, for the debtor (and perhaps also for the creditor) to depose to specified matters and to file and serve the affidavit or affirmation by a specified date.
(c) Alternatively, the judge can decide there and then not to make a committal order and to proceed in a different way, probably by making a further order under Rule 71.2 for the debtor’s attendance at court to provide information (before a court officer unless there are compelling reasons for the hearing to be before a judge: paragraph 2.2 of the Practice Direction supplementing Part 71). The further order will contain a penal notice in any event (Rule 71.2(7)), but the judge may favour including a recital which, in the light of the background, stresses the possible consequences of further non-attendance even more clearly to the debtor.

In this case the reasons for the committal orders appealed by Mr O (oddly just two of the four) were more than a little obscure and the apparent consideration perfunctory. Appeal allowed.

Bizarrely, Mr O’s reasons for appealing the committal orders were that he:

wishes to pursue a career in the law, [and] is said to be concerned that to have had committal orders made against him might harm his prospects.

I suspect overlooking two of the four committal orders is not a very good first step towards a legal career, but managing to avoid having a hearing taking place for 4 years could be an intermittently useful skill in practice, although perhaps a bit too specialised to be the basis of a career. He was of course aided and abetted by Broomfield’s rather forgetful approach to serving orders on 5 occasions.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. Cait

    The first link appears to be linking to the wrong case.

    I’d very much like to see the right case

    Cait

    Reply

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