Laidley v Metropolitan Housing Trust Limited (2024) EWHC 2611 (Ch) (Copy of judgment. Not on Bailii or National Archives yet)
This was the joined hearing of two appeals from a possession claim on grounds of anti social behaviour. Mr Laidley had an assured tenancy from Metropolitan from 2009. There had been complaints of anti social behaviour and Metropolitan brought possession proceedings.
Mr L was diagnosed with delusional disorder and lacked litigation capacity. The Official Solicitor was appointed as litigation friend. Mr L defended on the Equality Act amongst other points.
The County Court appointed an assessor to sit with the Judge at trial. At the start of the trial, Mr L applied for the Court to a) set out the role of the assessor, and b) that the assessor’s advice be given in open court. THis was refused but the trial adjourned part heard. Mr L appealed that decision.
At the further trial hearing, a possession order was made. Mr L also appealed that order.
Both appeals were joined. The High Court held:
a) Whether an assessor’s advice needs to be disclosed depends upon the unction of that advice. If the assessor is effectively providing evidence to the court, that advice and evidence should be disclosed to the parties. However, where the role of the assessor was to assist the Judge in evaluating or understanding the evidence, this did not fall to be disclosed, there was not duty to disclose under CPR 35.15, and so it would not be unless fairness demanded it.
b) In this case, the role of the assessor was to assist the Judge in the evaluation and assessment of evidence as to the whether the possession claim was a proportionate pursuit of a legitimate aim. It did not require disclosure.
c) The Judge had correctly used the assessor on the issue of proportionality, so it was likely the assessor had also advised on the Public Sector Equality Duty, but use of the assessor was within the discretion of the Judge.
The appeals were dismissed.
We understand that permission to appeal to the Court of Appeal has been sought.
Comment
I think there is a bit of an issue here. While the evidence/assistance distinction might make formal sense, there are clearly going to be grey areas. By this judgment, it would be left to the Judge as to where that boundary lay and hence the decision on disclosure or not. But even beyond that, there is a view on which any assistance that a Judge receives on assessing and evaluating evidence ought to be transparent to the parties.
I too have real qualms with this decision. Judges are meant to give reasons so that the parties can understand why they have won and lost and in the latter whether they have an appeal. If a reason for a judgment is based in part on the advice of an assessor about what the evidence meant surely that should either be recorded in the judgment or provided to the parties. What if the assessor has misunderstood the evidence? How would anyone ever know?
It will be good if there is some higher court clarity on this. I don’t think the judgment gave a good reason (or any reason) as to why the assessors advice should be private. I am not sure there is a good reason.
The other point that concerned me was the proportionality justification. It seemed to put a lot of faith in Brent springing into action if the Defendant was evicted and not the previous proportionality reasoning that eviction will only be proportionate if the D has appropriate alternative accommodation to actually go to, rather than the hope that eviction might force Brent’s hand. It probably won’t, they will probably find him IH at first instance and not eligible for accommodation through cc, make him a prs offer in Blackpool/Bradford and wash their hands of him when he turns it down.