Southwark: Not appealing

It is not unknown for losing parties in a case to not be happy, indeed very upset. There are two basic options. To shut up and put up with it, or appeal. Rather unusually, faced with one of the most coruscating High Court judgments I can recall, in AA V LB Southwark [our report here], the senior officers of Southwark Council have chosen to do neither. Instead, Southwark’s Housing and Communities Strategic Director has chosen to publicly announce that the judgment was ‘unjust’ and ‘clearly wrong’, but that Southwark aren’t going to appeal it.

[Disclaimer. What follows is my view alone, not that of any of the others who write for NL]

In a report on the AA case, put before the Council Housing & Community Safety Scrutiny Sub-Committee for the meeting tonight (25 November), the Strategic Director makes an argument that Southwark was basically right and, surprise, a few individual officers were to blame for the bits that Southwark had actually admitted to – the destruction of Mr AA’s belongings.

Now, as my report makes clear, I had some concerns about one specific finding of the High Court, that there was a conspiracy to evict in the first place – purely on the basis that the judgment did not really set out evidence that would convince me of such a finding, not least because Southwark did not call the relevant officers as witnesses.

However, even given my concerns, this report is disingenuous in the extreme. And given that Southwark’s officers have chosen the extremely unusual route of publicly repudiating a judgment while not appealing it, it deserves some detailed attention. So, paragraph by paragraph:

BACKGROUND
1. Mr AA, a secure tenant, was evicted on 23 April 2013 for rent arrears. The rent arrears were substantial and ongoing – at the time of eviction he owed £2,353.26.

Given the complete failure by Southwark to add direction deduction from benefits payments to Mr AA’s rent account over 27 months between 2002 and 2005, amounting to £1343.90 (as at 82 of the judgment) assertions about arrears should be made with caution. No mention is made of Mr AA’s proposals for payment. This bald statement simply attempt to justify Southwark’s actions fro the start.

2. The eviction was not attended by an income or resident officer, despite it being a procedural requirement for both to do so. No action was taken by the officer responsible to conduct an inventory of goods remaining at the address at the time of eviction or to arrange for the goods to be put into storage. Consequently, Mr AA’s belongings were destroyed and he therefore took a claim against the council for damages at the High Court.

‘Consequently’ doesn’t cover it. The collection of the belongings, for them to be destroyed, was actively arranged. (See 176 and 180 of the judgment). Further, Mr AA took a claim for unlawful eviction, breach of quiet enjoyment etc. etc. As Southwark’s own internal communications set out in the Matthews Report reveal, the Housing dept did not think he was bringing a claim on his belongings but for re-entry. So, a misstatement both of Mr AA’s claim and of what Southwark believed it to be when it was made.

ACTION AT THE TIME
3. Action at the time was taken on the basis of the removal and destruction of Mr AA’s property. Senior management were advised and the matter was immediately referred for an internal investigation.
4. A full investigation was undertaken by an independent senior manager in line with council processes and concluded in August 2013. The following recommendations were made:
• The actions of two income officers and one resident officer clearly amounted to gross misconduct and should proceed to disciplinary panels.
• The actions of one income officer clearly amounted to misconduct and should proceed to a disciplinary panel.
• The actions of one resident services manager and one income and debt manager clearly amounted to a lack of supervision.
5. In each case charges were levelled and heard by independent disciplinary panels. This resulted in sanctions being issued to all the staff involved.

That is 6 separate officers, at various levels of superiority. Now what the sanctions are is not set out, but 6 officers, including managers, does not amount to an isolated problem.

PROCEDURAL CHANGES
6.
The relevant process is laid down in the rent income and arrears procedure. This is a significant procedure document and includes sections relating to the following:
• Rent composition and payment methods
• Working with tenants to prevent rent arrears
• Housing benefit
• Supporting the tenant
• Managing tenancies
• Dealing with secure tenants in arrears
• Introductory tenancies
• DIY possessions
• Other remedies
• Eviction
• Former tenant arrears
• Bankruptcy

7. The eviction section includes clear instructions on the removal and storage of property left behind following an eviction for rent arrears. There is also reference to the more general goods storage or disposal procedure.

8. It is important to note that the procedures in place at the time were fit for purpose – the issue was that the procedures were not followed by the officers involved. In any case, the procedures were reviewed and some minor amendments were made to ensure absolute clarity.

I think there is a serious confusion between ‘policy’ and ‘procedure’ here. The policy might have been clear, but whether the procedure was fit for purpose depends on whether the policy was being followed and how it was managed – not just by these 6 officers but more widely. A bland assurance that the ‘procedure’ is fit for purpose is empty nonsense without more.

9. Immediate communications were issued to all officers responsible for eviction procedures. There was a clear management instruction to always follow processes and procedures, particularly in relation the importance of staff always attending evictions.

10. Immediate refresher training was put in place to ensure all relevant officers understood processes and procedures.

Is this an admission that there was a failing in training? or oversight? If the procedures were fit for purpose then no need (but by procedure, Southwark mean policy, of course).

THE TRIAL
11. Mr AA claimed in the High Court for £2.4 million in damages. The trial took place on 18, 19, 20, 28 and 29 November and 23 December 2013. The judgment was formally handed down on 14 October 2014, prior to which the council had reached a confidential settlement with Mr AA.

Mr AA was a litigant in person. If the report is going to set out the amount he claimed in order to cast a bad light on his claim, then it should disclose the amount Southwark settled for, to see how Southwark’s assertions look in the light of that figure.

KEY LEGAL ISSUES
Unlawful eviction
12. Master Kay QC, who had dealt with the early hearings in the case, gave summary judgment for Mr AA on the council’s admission that the destruction of the contents of the flat was unlawful. He set the case down for a trial essentially to establish three things:
• Which items on a list of 36 were removed from the flat and destroyed
• Whether they belonged to Mr AA or not
• Their value
Master Kay’s directions said nothing about any claim for unlawful eviction.

This is quite stunningly disingenuous. The directions at the two hearings before Master Kay QC were as noted at 232 – 235 of the judgment:

First hearing before the Master on 18 July 2013.
Thus, the Master had to deal with directions in relation to the whole claim and a summary judgment and interim payment application in relation to the special damages part of the claim. The Master directed that there should be a hearing on 18 July 2013 at which AA’s application would be considered and case management directions would be given if appropriate. At that hearing, the Master entered judgment for damages to be assessed in respect of LBS’s admitted unlawful disposal of AA’s goods as recited in the order made by Stuart-Smith J dated 5 June 2013. It also ordered an interim payment of £6,190.00. The balance of the application and a consideration of the pleadings would be adjourned to a hearing on 24 July 2013.

Second hearing before the Master on 24 July 2013.
Prior to the adjourned hearing, LBS issued an application which sought permission to amend its defence, a response from AA to its request for particulars and an order striking out all references in the claim form and/or particular of claim to conspiracy as disclosing no reasonable cause of action and/or lacking specificity. The Master made a detailed procedural order at the hearing. This order granted LBS permission to file an amended defence and directed AA to answer the request for particulars. It provided for standard disclosure by list, exchange of witness statements and the provision for one expert from each party to value AA’s belongings and set down for trial the assessment of damages.
The order then provided as follows:
“9. The assessment of damages shall take place between 11th November 2013 and 28th February 2014 (“the trial window”), with a time estimate of two to three days. …
10. Each party shall file and serve a completed pre-trial check list as directed by the Clerk of the Lists and there be a Pre-Trial Review on a date to be arranged by the Clerk of the Lists with a time estimate of 11/2 – 2 hours.”

The Master’s order expressly adjourned the striking out application in relation to AA’s principal claim for conspiracy and that application was never restored or determined. It follows that both his discovery and witness statement orders extended to all claims for conspiracy and for all recoverable heads of special and general damages. Thus, the assessment of damages trial directed to be set down extended to all claims for general damages and within those claims was a claim for damages for conspiracy.

In short, there was a direction for further particulars from Mr AA and an amended defence from Southwark – these would have been wholly irrelevant if the only issue was the assessment of damages on the specific head of the unlawful disposal of belongings to which Southwark had admitted. Moreover, Southwark’s strike out application was adjourned, so expressly not decided.

Southwark’s officers (and more worryingly one presumes also Southwark Legal) appear to be completely unaware that it is entirely possible to have summary judgment on one – admitted – head of claim, while the remainder of the claim proceeds on a contested basis. Well, either unaware, or trying it on. Whether this was pure ignorance or an attempt to steamroller a litigant in person, we can’t know at this point, but whichever it was, it was poor practice.

13. The council acted with fairness throughout all the litigation but especially in the early stages when the matter was in Master Kay’s hands by admitting liability for unlawful interference with goods and by volunteering interim payments to Mr AA to ensure that he had funds whilst awaiting a ruling from the court on the overall valuation of his claim.

Oh dear, oh dear. Let us see. Southwark failed to disclose the Matthews report, despite stating in its defence that it would be disclosed when completed (and the rule is that any document referred to in pleadings or witness evidence must be disclosed). Southwark failed to disclose Mr AA’s tenancy file until ordered to do so at trial and still failed to disclose the EDMS entries created by Residential Team officers. Southwark attempted to impose its view of proceedings on a litigant in person, without actually following through its application to strike out the rest of Mr AA’s claim, although it remained open and adjourned.

Interim payments were not ‘volunteered’. An interim payment of £6,190.00 was ordered by Master Kay QC. This was a court order, not a generous gesture.

14. Throughout the court case Mr AA acted as a litigant in person. The council contributed £5,000 for Mr AA to obtain independent legal advice.

This is misleading and inaccurate. The Court ordered a payment of £5000 back in March. See note 2 to the Judgment. It looks like an interim damages payment. The council didn’t ‘contribute’ £5000, they were ordered to pay it.

15. Southwark Council maintained throughout the trial that the grounds for eviction were lawful.

And they were wrong to do so. So what?

16. The finding of unlawful eviction against the council could be argued to be unjust because it was not considered to be an issue before the court. As noted above it did not feature in Master Kay’s directions. However, as a discrete legal point it is not straight-forward. The general position is that a warrant for possession cannot be issued after 6 years from the date of the possession order unless the court gives permission. In this case 6 years had expired and permission was neither sought nor given, at least not expressly. A new form of order and court procedure was introduced in 2007 following a Court of Appeal decision in Hassan which provided for an application to fix a date for possession prior to the issue of a warrant. The council applied to fix a date for possession in 2008 in order to issue a warrant, this being within the last 6 years. The judge held that this application to fix a date did not amount to permission and hence the eviction was unlawful.

No, no, no. Southwark might have convinced itself that it wasn’t an issue before the court and failed to prepare accordingly – or Southwark might have not wanted to put forward any actual evidence on the issue because it would have had to have come from the officers concerned – but either way, that does not make the trial unjust. It simply means that Southwark messed up.

In any event, Southwark put detailed argument before the court as to whether the eviction was lawful – as noted here. The court found against them, on thoroughly reasonable grounds. There may be arguments against that finding, but it is very, very far from unreasonable or unjust. Southwark now claiming that ‘it is not a straightforward point’ is ridiculous. it has been decided, and on clear grounds. Appeal it or shut the hell up.

In any event, any suggestion that the housing officers concerned in the unlawful eviction were relying on an obscure view about the effect of a postponed possession order being made two years after a suspended possession order in deciding whether 6 years had passed since the order is ridiculous. That is an argument made by a QC.

Appealing the decision
17. The judgment of His Honour Anthony Thornton QC has been extremely critical of the council and its employees. The judge in his findings found that council staff had conspired to evict Mr AA from his home and acted in bad faith.

As I have said, I am not particularly comfortable with the finding of conspiracy to evict, on the evidence mentioned in the judgment. On the other hand, there is ample evidence for findings of acting in bad faith and conspiracy to cover up the events of the eviction. All of that evidence was in Southwark’s hands before the trial.

18. It is arguable that the decision of the judge is appealable for various reasons; primarily because the council’s view is that the conclusions on conspiracy and misfeasance at least were clearly wrong and also because the trial itself was unjust. It is rare for an appeal to be brought on the latter ground but the circumstances of this case were exceptional. Finally the lawfulness of the warrant of possession is a difficult issue on which the Court of Appeal could find against the council.

Some of the conclusions on misfeasance look pretty unappealable to me, just on the basis of the mentioned findings of the Matthews Report. Any appeal that the trial was ‘unjust’ would be deeply misconceived, as far as I can see.

So while an appeal might succeed on one or two limited issues, the broad findings of unlawful eviction, and conspiracy to cover up the events look pretty solid. If the argument about which possession order counts for the six year period really still looks so attractive to Southwark, then it should be appealed. Otherwise, the rule is that you shut up – it is unlawful unless or until overturned by a higher court.

19. An appeal now would be difficult and not financially prudent. The council has never disputed that it was at fault for the destruction of Mr AA’s belongings. The claim has been settled and the proceedings discontinued. While the Court of Appeal may look critically at both the judge’s findings on conspiracy and misfeasance and also on his conduct of the case generally, the appeal would not change the settlement between the council and Mr AA. Consequently there would be no material benefit to the council in successfully appealing Judge Thornton’s judgment. On the contrary, the exercise would involve the council in further costs which it could not recover.

Proceedings have not ben discontinued. They have been settled. Discontinued means abandoned. Mr AA did not abandon them. he won at trial and accepted a settlement on damages. If Southwark feel so aggrieved on a point of law – the unlawful eviction point – they should damn well appeal it, as they clearly consider it has broader significance (and so it would have).

20. In relation to Mr AA’s possessions, Southwark Council accepted full responsibility from the outset for the disposal and destruction of Mr AA’s property. Our internal processes found that the incident was a result of misconduct on the basis of the failure to follow our own processes and procedures by the officers involved – not as a result of conspiracy and misfeasance in public office to evict the tenant at all costs and deliberately destroy his possessions.

This ignores the evidence of conspiracy on a cover up itself detailed in the Matthews Report, as quoted in the Judgment. It also ignores the number of people apparently involved at levels from officers (and experienced officers at that) to managers.

CURRENT STATUS
Original investigation review
21. The original investigating manager conducted a page by page review of the findings of the judgment against the original investigation findings. This was to clarify whether any new evidence or fact came to light as part of the court case that was not considered at the time.

Southwark did not disclose any other evidence. Southwark did not put the officers concerned forward as witnesses. Southwark failed to disclose all the tenancy files and even that which was disclosed was missing all relevant documents for the period. So…

22. Following on from this review, it is the view of the investigating officer that the judgment has no additional evidence in it of potential wrongdoing by staff which was not already known at the time of the investigation and subsequent disciplinary proceedings.

Well doh. All that was before the Court was what Southwark had been ordered, at trial, to disclose (despite the fact that all of these documents should have been disclosed in the usual course of proceedings). It appears that this diligent investigating manager did not look for any other documents or records or evidence that had not been disclosed. It has hardly surprising that no new evidence sprang to light. They don’t look for any.

23. During the review of the judgment, the investigating officer also did not consider that the evidence obtained disclosed a conspiracy by staff to act in an unlawful manner. It was the view of the investigating officer that this remained a case of gross negligence, incompetence, lack of supervision and poor record keeping.

Again, I have my misgivings about whether the Court could reach some of the findings it did on the available evidence. But, and let us be absolutely clear about this, the view of an unnamed internal Southwark ‘investigating manager’ does not get to trump a high court judgment. That being, well, the law.

24. The officers named within the judgment who were subject to disciplinary panels were placed on temporary leave until further notice. This was to both to protect the council’s interests and to fulfil our duty of care as an employer.

Since June 2013?

Evictions review
25. Officers are conducting a review of all evictions carried out from the start of 2013/14 to date 2014/15. A large sample will be assessed against the following criteria:
• Grounds for eviction
• Orders and any potential timing concerns
• Presence of the correct officers
• Removal and storage of goods
26. This review will report before the end of the calendar year. Senior officers will take any action required based on the findings of this review.

Will the findings of the review be public? Because anecdotal experience from duty scheme and elsewhere is that Southwark do mess up on procedure and evidence at possession proceedings and stay of eviction hearings. Quite often. Which is OK if the tenants are represented, but…

Process and procedure
27. Processes and procedures are subject to regular and frequent review and action is taken to ensure that all procedures are followed by officers.

What actions? When? Or is this prospective, to be taken? If so, why wasn’t this monitored before?

28. Eviction procedures are being reviewed in order to ensure that the calculation of the six year period is taken from the earliest possession order rather than any subsequent order or application whereby the date for possession is fixed.

As they would have to be in order to ensure the evictions were, well, lawful. Whatever Southwark’s senior officer’s publicly voiced opinions may be.

What is missing here? Any review of Southwark’s conduct of the case. Any review of the failings that led to their exposure at trial. Any review of their failure to disclose relevant documents when required to do so, or until ordered to on the second day of trial. And perhaps, any review of whether the housing department actually listened to legal advice, or just went its own sweet way.

If you have six (six!) housing officers and managers behaving badly, and evidence of an attempted coverup of that behaviour, and you then have an internal report setting out this misconduct and evidence of attempted coverup – which report you have mentioned in pleadings – and you then try to hide that report and other documents from both the tenant/claimant and the Court, well, then you have a much bigger problem than just a few officers not following procedure.

And that problem is what this report to the council seeks to avoid.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession, secure-tenancy, Unlawful eviction and harassment and tagged .

7 Comments

  1. The LB Southwark report of this evening is a piss take.

    I use that phrase deliberately for a number of reasons. First, it is the type of language needed as the systemic dissection on a point by point basis above while correct in every way is overlong as it is a ‘professional’ response that is too thorough.

    What is not in contention is that the key issue is to ensure LB Southwark and no other LA does this or does this again. Sod what is needed is public embarrassment of LB Southwark not only for their outrageous actions but for the outrageous attempt as a coverup.

    That requires the one thing all councils hate – negative external publicity of the type that cannot control. It needs language that is the language of the man in the pub or even on the Clapham Omnibus.

    Yet LB Southwark have been decidedly clever here. The AA case was a wee while ago and plenty more fish and chips have been wrapped since. Their delay in responding (and I use that term loosely) is clever as many will have forgotten the original judgment and even a retrospective view of it will see even the Independent bigging up that the litigant in person was a black-faced ‘foreigner’ despite being a British citizen for 26 years.

    What should be a story of huge public interest – the outrageous coverup following the outrageous actions and inactions – is only of professional interest not public interest.

    No Giles, you haven’t gone too far at all. The (General) public interest has unfortunately and the media is practising Fortune Missouri justice. If Obama has a choice of Turkey to pardon this week he may well choose the Chief Executive of Southwark who has got away with murder here.

  2. I dare say you’re right about the absence of direct evidence for conspiracy to evict in the judgment (I have only skim-read it due to other time pressures). However, the civil standard of proof, as we all know, it merely the balance of probabilities. It’s been clear since before that old favourite, Armory v Delamirie , that if you withhold evidence from the court, it ‘should presume the strongest against’ the defendant. More recently, the case of Prest v Petrodel demonstrates that the court will happily draw the same strong adverse inference.

    The moral of the story is that offering no defence is a highly risky strategy, and rightly so.

  3. http://www.insidehousing.co.uk/watchdog-fines-council-1000-for-pregnant-woman-gatekeeping/7006365.article

    Does anyone know whether a report to the Council Housing & Community Safety Scrutiny Sub-Committee has been done on this too???

    I wonder if this this is also just a few bad apples and yet another questionable finding against the Council……. Because, it seems to me, that the Council aren’t very good at: (a) helping people with re-housing; (b) keeping people re-housed.

  4. Pingback: Southwark: Not appealing – NearlyLegal | Current Awareness

  5. What I find worrying is that the “Key Legal Issues” section appears to have been written by the lawyers (as indeed it should have been – just not in the terms it has been). The judgment painted a picture to some extent of the lawyers being kept in the dark over exactly what had been going on – the eviction itself never went near them. The content of this section however shows the lawyers buying into their clients’ version of events.

    One point though on your analysis – the document referred to will be a “procedure”, not a policy. It will tell the officer what letter to write/document to complete/signature to obtain if he wants to accomplish X.

  6. “If you have six (six!) housing officers and managers behaving badly, and evidence of an attempted coverup of that behaviour, and you then have an internal report setting out this misconduct and evidence of attempted coverup – which report you have mentioned in pleadings – and you then try to hide that report and other documents from both the tenant/claimant and the Court, well, then you have a much bigger problem than just a few officers not following procedure.

    And that problem is what this report to the council seeks to avoid”

    Sounds like that dept. should be restructured at the least, I wonder what the LGO would say about it. I wonder how much of that goes on in other housing teams
    not now controlled or owned by the local authorities. It seems accountability
    and ownership is difficult to succumb to in a local authority housing team, is it non existent in privately or independently run associations / mutual?.

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