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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Reigate & Banstead District Council v Benfield & Anor [2001] EWCA Civ 1009 (27 June 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1009.html
Cite as: [2001] EWCA Civ 1009
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EPSOM COUNTY COURT
(HIS HONOUR JUDGE COOK)
Strand London WC2 Wednesday, 27th June 2001 |
||
B e f o r e :
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| REIGATE & BANSTEAD DISTRICT COUNCIL | Claimant/Respondent | |
| - v - | ||
| (1) REBECCA BENFIELD | ||
| (2) PENELOPE FORREST | Defendants/Appellant |
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Smith Bernal Reporting Limited
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MR A ARDEN QC (instructed by Reigate and Banstead District Council, Surrey RH2 0SH) appeared on behalf of the Respondent
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Crown Copyright ©
- LORD JUSTICE KAY: This is an application to amend the grounds of appeal to seek further orders. Insofar as the application relates to a number of matters there is no dispute that the amendment should be allowed. They are issues that are going to have to be determined in any event and it is clearly right that they should be considered. There being no objection to those matters I have no difficulty at all in permitting them.
- The one part of the application which is opposed is an application that there should be a declaration in the following terms: a declaration in consequence of the proceeding declaration that the decision of the respondent to elect to operate an introductory tenancy regime pursuant to the provisions of Part 5, Chapter 1, of the Housing Act 1996 was incompatible with Convention rights, namely with Article 14, prohibition of discrimination taken together with Article 8, right to respect for private and family life.
- Mr Watkinson, who appears on behalf of the appellant, acknowledges that the phrasing of that is not altogether satisfactory. He would want, in effect, to go further and add to that which I have read out the words "and therefore unlawful." It is his argument that if it was unlawful there was a defence to the proceedings taken in the county court and that he should be entitled to have his declaration.
- The first matter to observe is whether or not he is right that such a defence existed in these circumstances, no such defence was in any way raised in the county court. That has various consequences for any proposed appeal. First, the matter has never been considered; second, the issues that are raised would require evidence. That evidence has not been gathered. Complaint is made that the respondent local authority have known about the possibility of this for some time and could therefore have started to find out what evidence was available. I do not accept that they were under any duty at all to do so until such time as it became a live issue. Finding information of that kind is of necessity an exercise which carries expense, and until such time as a local authority has to meet such an argument I can see no justification for saying that the local authority should have made available the evidence that they would require to resist such a defence. If it had been raised in the county court, they would have dealt with the matter there. Even if it had been raised in the initial appeal and at that time permission had been granted in respect of that matter then they would have dealt with it. This court is not the forum for deciding factual matters. There are limited circumstances in which it is necessary for the court to embark on such an exercise but I do not consider that those circumstances arise in this case.
- It is a matter of some importance what the evidence is. Mr Watkinson argues that in any event it is highly unlikely that there will be any dispute about that evidence. He has not yet seen the evidence and therefore how he can be so confident that that is so, I fail to see.
- In the circumstances it seems to me that it would be unfair at this eleventh hour to allow this matter to be raised which ought to have been raised in county court if it was ever going to be raised. The amendment may very well cause prejudice to the local authority, and in those circumstances there can be no justification, whatever the legal merits of the defence being suggested, in permitting that part of the proposed amendments. I therefore refuse that aspect of the application but allow amendment in respect of the other matters.
Wednesday, 27th June 2001