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Too soon? Asserting a tenancy should not have been dismissed at interim injunction


Ibrahim v London Borough of Haringey & Anor (2021) EWHC 731 (QB)

Something of an oddity, and I’m not going to comment on the substantive claim, which will now likely proceed to trial, but this was an appeal from a County Court judgment on an interim injunction application which had effectively disposed of the entire case.

Mr I was a rough sleeper in London in May 2020. He had approached Haringey about accommodation (this was during the ‘Everyone In’ period).

On 12 May 2020, the claimant signed what purported, on its face, to be an agreement for the provision of “Temporary Accommodation provided under Licence to an Occupier for Homelessness Assistance under s. 188(1) or s. 190(2) Housing Act 1996 Part VII Homelessness”. The accommodation in question was a self-contained flat in London N8. The agreement was also signed by an individual on behalf of the second defendant (Capital Home Services Ltd). The document included a reference to £45 “charged by night”, this sum being written in manuscript. The occupier acknowledged that by the agreement the accommodation would not become a grant of a tenancy “as it is a licence to occupy the accommodation for as long as the Local Authority states I am allowed to remain in it on a temporary B&B type basis”. The Agreement said that once the Local Authority sent a notification to terminate the Licence, the Occupier shall take the date specified in that letter as “being my last at the accommodation and that I must arrange to vacate the property by 12PM the following day and take all my belongings”. The Occupier further agreed that the Local Authority and the supplier were “not required to get a court order to evict me … as section 3 and 5 of the Protection from Eviction Act 1977 do not apply …”.

It was common ground that this was not s.188(1) or s.190 Housing Act 1996 temporary accommodation. Mr I did not have status in the UK, and might have remained eligible for asylum support accommodation, so the council could not provide Part VII accommodation.

The first defendant made a mistake in having recourse to the document I have described. The first defendant ought merely to have arranged for the claimant to be given a room in a Travelodge. Instead, the first defendant referred the claimant to the second defendant, which provided the claimant with the self-contained flat rather than the temporary hotel accommodation intended. Having appreciated its mistake, the first defendant caused the claimant to be told, on 14 May, that he should move to the Travelodge.

Mr I brought a claim asserting “that he had been granted either a tenancy or a licence of the flat. In either case, the premises were a dwelling house and the first defendant was a prescribed social landlord. The claimant occupied the premises as his only or principal home, which was let as a separate dwelling. Accordingly, sections 79 to 81 of the Housing Act 1985 meant that the agreement of 12 May 2020 created a secure tenancy or secure licence.” Mr I also claimed for harassment in respect of an alleged attempted illegal eviction on 14 May 2020.

Mr I sought an interim injunction for re-admittance and preventing any further eviction attempt.

At a first ex-parte hearing, the injunction was granted, but at the return date, HHJ Saunders dismissed the injunction application. The issue for the appeal was whether the Circuit Judge was right to do so on terms that effectively decided the whole claim.

HHJ Sanders had found that “There is no serious issue to be tried, simply because there was no intention to create legal relations” and further, that R (N) v Lewisham London Borough Council (2014) UKSC 62 (our note) was relevant to the proper interpretation of “dwelling house” and that the flat was “clearly not the Claimant’s home”.

The order made, at the instigation of counsel for LB Haringey read, so far as relevant:

“AND UPON the court finding that the parties did not enter into any legal relationship”

It was agreed by the parties that in effect, this determined Mr I’s whole claim.

Mr I appealed, arguing that

(1) It was not part of the court’s function at the interim injunction stage to try and resolve conflicts of evidence as to facts and/or the difficult question of law which ultimately called for detailed argument, supporting evidence and mature consideration. Those matters ought to have been dealt with at trial; (2) There was no evidence or insufficient evidence to support such a finding; (3) The decision was perverse because, on the basis of the evidence in the interim application, no reasonable Tribunal could have reached such a decision.

The High Court upheld the appeal.

i) The overriding objective included the goal that a claim should be heard fairly. Neither party had entered in to the injunction hearing with the aim or expectation that the substantive claim would be determined. If that is to be a possibility in an interim hearing

the court must be assiduous to ensure that – if it considers such an outcome is possible in the proceedings before it – that possibility is squarely grasped by the parties and their representatives and that they are given the opportunity of addressing it.

ii) The tests for summary judgment and interim relief might appear similar “no serious question to be tried” for interim relief and “no real prospect of succeeding on the claim or issue” for summary judgment. However:

Despite the similarity of the tests, the summary judgment process has a number of important features that are not to be found in the procedure governing interim relief. First, for there to be summary judgment there has to be an application, which puts the other side on notice of precisely what the applicant is seeking; namely, the substantive determination, in the applicant’s favour, of the whole or part of the proceedings. CPR 24.5(1) makes specific provision for the filing of written evidence by the respondent to an application for summary judgment. This touches upon one of the principles articulated in Easyair; namely, that in reaching a conclusion on summary judgment, the court may have regard to evidence that can reasonably be expected to be available at trial. That finds no counterpart in the caselaw concerning interim relief. On the contrary, in an interim relief application, the court is enjoined against assuming too much about what the facts and/or the legal answers to the case might eventually be

iii) There was potentially a serious question to be tried.

I am firmly of the view that the judge erred. There is no indication in the judgment that he took account of the fact that, since there was an express signed agreement between the parties, the burden was on the first defendant to show that there was, nevertheless, no intention of creating legal relations. Despite the fact that the first defendant attached a statement of truth to the defence, there was a dearth of evidence of the kind one would expect to see if the matter had proceeded to trial. In particular, one would expect to see evidence from the first defendant’s officer, with whom the claimant dealt and who allegedly told the claimant that he could reside in the flat for the duration of the pandemic crisis. One would also, of course, expect to see evidence from the claimant. The first defendant doubts whether, in fact, the claimant would (at least now) produce such a statement. Nevertheless, as matters stood at the time of the hearing, this was an issue that should have been considered by the judge. As we see from the case law, these sorts of factors should be taken into account before a judge concludes there is no arguable case, in the context of an application for interim relief. They are, a fortiori, factors that need to be firmly borne in mind if the judge is considering making any findings that go to the applicant’s substantive case.

Further the first defendant had argued that the council was using its section 1 Localism Act 2011 ‘umbrella’ power to accommodate Mr I. The judgment in R (Ncube) v Brighton and Hove City Council (2021) EWHC 578 (Admin), (our note), made clear that the council couldn’t accommodate under s.1 Localism Act, raising a further issue to be tried.

The judge had failed to properly take into account that, on any basis, Mr I had been given a licence (as otherwise he would be a trespasser). Where the Judge had gone on to consider if he was wrong about the intention to create legal relations, whether Mr I had a licence or a secure tenancy, he had failed to take into account that a secure tenancy could be created notwithstanding a mistake on the council’s part. (Akinbolu v Hackney Borough Council (1997) 29 HLR 259 and Birmingham City Council v Qasim & Ors (2009) EWCA Civ 1080 (our note)).

There was also an issue to be tried over whether R(N) v Lewisham applied to accommodation not straightforwardly provided under s.188 Housing Act 1996.

For these reasons, there was a properly arguable case to go to trial.

Appeal allowed.

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.


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