Windsor and District Housing Association v Hewitt [2011] EWCA Civ 1096 (Not on Bailii or elsewhere. We’ve seen a transcript). It is of interest not least for the Court of Appeal’s view of the meaning of the funding limitations on a Public Funding Certificate.
This was an application to the Court of Appeal for a stay of eviction pending determination of an application for permission to appeal to the Supreme Court. The original Court of Appeal decision – Windsor and District Housing Association v Hewitt (2011) CA (Civ Div) 19/05/2011 – we reported on here. The issue was whether Ms H had obtained a transfer to a two bed property by ‘false statement’. The Court of Appeal found that she had. The Court of Appeal’s order gave possession on 30 June 2011. Permission to appeal was refused.
A warrant was issued on 8 July 2011 with an eviction date of 4 August. On 1 August, Ms H applied to the Court of Appeal for a stay of eviction, heard on 3 August by Mummery LJ (not one of the original appeal judges).
The delay in making the application following the making of the possession order on 19 May was a major factor in the decision, albeit that Ms H had been granted an extension of time to file application for permission by the Supreme Court (until 26 August).
Ms H argued that the reason for the delay was that a) Ms H’s original solicitors had lost their legal aid franchise shortly after the May hearing and that b) the limitation her funding certificate did not cover an application for stay and application for permission to the Supreme Court and that the LSC had not reached a decision on amending the certificate until 28 July 2011, at which point the stay application was made.
Before amendment, the limitation was “Representation of the respondent on an appeal to the Court of Appeal up to and including the final hearing of the appeal.”
However, Mummery LJ found that:
In my view, the public funding at that stage clearly covered an application for permission to appeal to the Supreme Court, which was refused by the Court of Appeal, and in my view it would also have included an application for stay of the possession order pending the determination by the Supreme Court of any petition for permission to appeal and, if that petition was granted, until the final disposition of the appeal. Those sort of applications are made every day in this court when somebody wants to appeal a decision that has disappointed them.
The amended limitation included ‘application for a stay of execution and to petition the Supreme Court for permission to appeal and prosecute the appeal if successful’. However, while this clearly covered the application, Mummery LJ remained of the view that the original limitation would cover the stay application and application for permission to appeal to the Supreme Court, apparently in reliance on those words ‘up to final hearing of the appeal’.
This was significant, because Mummery LJ found that the delay was unjustified. Although Ms H faced eviction and the point of her appeal would admittedly be defeated if the eviction went ahead, it would not be stayed. Application dismissed.
Also worth noting is that while Ms H had argued there was no prejudice to the Housing Association in a stay as the rent was being paid, the Housing Association had argued that there was prejudice in that it had demand for two bed flats from people who ‘really’ needed them. Mummery LJ accepted the Housing Association’s argument.
On the funding certificate limitation point, it would be very likely that the LSC would have agreed with Ms H’s solicitors, rather than with the view taken by Mummery LJ – that the Court of Appeal decision marked the ‘final disposition’ of the appeal as funded. So it may be well be of use to point to this decision, where that limitation is held to cover a stay application and application for permission to appeal further.
Ms H, whose appeal apparently included a Ladd v Marshall argument on new evidence that her son was indeed living with her as well as argument on the interpretation of ground 17 Housing Act 1988, we must presume has now been evicted – unless the Housing Association elected to hold fire pending the permission application. Anyone have any news on this?
The LSC has form for ambiguity. You could call to try to clarify, and good luck with that. The LSC is in disarray
The Funding Code Procedures say (para C35):
35.2. Legal Representation to bring or defend any form of appeal in proceedings is covered by a certificate only where this is specified on the certificate or approved by the Director, except that no such approval is required to defend an interim appeal.
Also, C23.1 makes clear that any appeal or proposed appeal to the Supreme Court should be referred to the LSC’s Special Cases Unit for decision.
I thought the combination of these two paragraphs of the Funding Code meant that proposed appeals to the Supreme Court have to be authorised by an amendment to the limitation granted by the SCU. An application for permission to the Court of Appeal made at the conclusion of the proceedings in the Court of Appeal would be covered – and indeed it seems this was done under the first limitation on 30th June – but renewing the permission application to the Supreme Court would require an amendment. Certainly that has been the LSC’s practice until now.
Was Mummery LJ referred to the Funding Code in argument? It would be interesting to see what he had to say about it – if his judgement was based just on the wording on the face of the certificate, maybe he wasn’t. It will also be interesting to see how the LSC respond to the case.
Thanks Simon, that is helpful. It isn’t at all clear whether the funding code was raised. Mummery LJ refers to detailed written and oral argument, but makes no specific reference to the funding code.
The issue in the case was whether the application for a stay could have been made earlier. Mummery LJ took the view that it could and should have been made at the time of first application for permission. This is the grey area – Mummery LJ takes the view that it is a natural counterpart of an application for permission to appeal, so would have been covered in the same way as the application for permission to appeal at the conclusion of the May judgment. I don’t know if the LSC would share that view.
It is perhaps harsh as a decision, because it is pretty clear that an application for stay at that time would have been refused anyway, in view of the refusal of permission to appeal. So a later application along with application for permission to the Supreme Court would have been required in any event.
The Supreme Court refused her permission on 1 November.