England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Stanley Burnton)

		Royal Courts of Justice Strand London WC2 Wednesday, 21st November 2001

1. LORD JUSTICE MAY: This is an application by Mr Dhadly for permission to appeal the order of Mr Justice Stanley Burnton, sitting in the Administrative Court of the Queen's Bench Division of the High Court, on 2nd October 2001. He made an order staying Mr Dhadly's application for judicial review, and it is against that order that Mr Dhadly seeks permission to appeal.
2. I should like to say first that I am very grateful to Mr Dhadly for the way in which he has prepared the papers because, although, as I shall indicate, some of their content is offensive, the actual preparation is quite excellent. I am also grateful that he has come today with ten pages of written submissions, because that has enabled me to read it all and to know what his case is. Although I have criticised parts of the skeleton argument which he has put in his papers as being offensive, there is nothing offensive in these ten pages and they are, if I may say so, sensible submissions.
3. The facts go back a long way. They go back to a judgment, also in the Administrative Court, of Mr Justice Richards on 20th October 1999. The history of the matter goes back beyond that. It goes back to about June 1996, when Mr Dhadly moved into a property owned by his son at 234 Broadwalk, London SE3. Upon doing so, he made a claim for housing benefit. This was refused on 20th February 1997 on the grounds that Mr Dhadly was not legally liable for the rent claimed. That refusal was maintained on appeal. On 21st November 1997 the Housing Benefit Review Board reaffirmed that decision. It was of that decision that Mr Dhadly sought judicial review, and that matter came before Mr Justice Richards on 20th October 1999.
4. Mr Justice Richards held that the Board had acted unlawfully in that the decision appeared to confuse the provisions of section 130 of the Social Security Contributions and Benefits Act 1992 and the provisions of paragraph 7(1)(b) of the Housing Benefit (General) Regulations 1987. Mr Justice Richards also held that the Review Board's decision did not adequately consider evidence, which led him to say that Mr Dhadly had:

"... a reasonably cogent case in favour of the existence of a genuine tenancy, i.e. a true or genuine liability to pay rent."

5. It is a central part of Mr Dhadly's application today that that statement in the judgment of Mr Justice Richards (at p.48F of the bundle) constituted a decision that he had a true and genuine liability to pay rent. But I have read that judgment and in my view Mr Dhadly is plainly wrong about that. It was not a decision as to that question: it was a decision, such as is capable of being made on judicial review, that the Review Board had not adequately considered evidence which could lead to that decision. Mr Justice Richards accordingly quashed the Board's decision and remitted the matter to the Board with a direction that the matter be reconsidered in accordance with the law laid down in his judgment. That is another central part of Mr Dhadly's submissions to me today, and I am afraid that he also misunderstands that. Mr Justice Richards was not telling the Board that it had got to find that Mr Dhadly had a true and genuine liability to pay rent: he was telling the Board that it had got to make a decision which did not confuse section 130 of the 1992 Act with paragraph 7(1)(b) of the 1987 Regulations and which took full account of all the evidence (as the previous decision had not).
6. What then happened was that on 3rd August 2000 the Board, having reconsidered the matter, again rejected Mr Dhadly's claim. On 22nd September 2000 he again sought judicial review of the decision. On 8th June 2001 Mr Justice Stanley Burnton granted permission to apply to set aside the decision on the grounds that the decision did not make it clear and did not give adequate reasons as to the basis upon which the Board had reached its decision that the applicant was under no legal liability to pay the rent for which he claimed benefit. In other words, the basis on which Mr Justice Stanley Burnton granted permission to apply was that this second decision of the Board was inadequately set out and reasoned.
7. In view of this permission, the Board decided to withdraw its decision of 3rd August 2000 so that it ceased to have effect, and it agreed to pay Mr Dhadly's reasonable costs. In other words, the Board caved in on the second judicial review proceedings and, by that concession, Mr Dhadly had got everything that the court was able to give him. In those circumstances, the Board applied for an order that these second judicial review proceedings should be stayed. Mr Dhadly did not like that. He refused to agree to it and he opposed the application that was made to Mr Justice Stanley Burnton that there should be a stay.
8. On 2nd October 2001 Mr Justice Stanley Burnton ordered the matter to be stayed. He held that, since Mr Dhadly had already achieved all that he could properly achieve in those proceedings, there was no purpose in continuing them. He noted that, although he had granted permission for judicial review, he considered that the substantive matter of the existence or not of a tenancy was fully arguable and fell to be determined by the Board when the matter came before it again. He further noted that the objections of Mr Dhadly that the Board would not indicate what its decision would be showed that the applicant had misunderstood the nature of judicial review and that both the Board's new decision and the question of costs were matters that could not be determined at the hearing before him. The court's order in consequence of Mr Justice Stanley Burnton's decision was that Mr Dhadly got his costs of that application to be assessed against the defendant Board.
9. Mr Dhadly's grounds of appeal are in these terms:

"The order in question is wrong for the following reasons:-

1.The order is illegal.

2.The order is irrational.

3.The order is procedurally improper.

4.The order is foul of principles of natural justice.

5.The order is biased."

10. He also says that the judge did not let him fully state his case, and he suggests that the judge evidently had not fully studied or understood the case. He then says that the judge:

"... reached a decision which is so outrageous in its defiance of logic and accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

11. Those grounds of appeal are supported on paper by a long skeleton argument, which I have read in full and which I have indicated contains, in part, offensive material. But, as I have said, the grounds upon which Mr Dhadly has argued the matter before me in his very helpful written submission this morning are as follows. First, he says that a stay should not have been granted because he did not consent to it. He is wrong about that because the court has power under rule 3.1(2)(f) of the Civil Procedure Rules to stay any proceedings, and that does not require the parties' consent.
12. Secondly, he refers to what Potter LJ said in Abraham v Thompson [1997] 4 All ER 363. Potter LJ said (at p.374) that, where a stay is sought, the starting point is the fundamental principle that an individual is:

"... entitled to untrammelled access to a court of first instance in respect of a bona fide claim based on a properly pleaded cause of action ..."

13. Potter LJ also said (at p.376):

"I would limit the jurisdiction to grant a stay ... to cases where it can clearly be demonstrated that there exists a situation amounting to abuse of process."

14. I have no doubt that what Potter LJ said in that case was appropriate to the case before him. Here (subject to one point which I shall come to) we have a situation where Mr Dhadly had indeed secured, by agreement, all that his judicial review proceedings could give him. It was plainly appropriate (as I say, subject to the point I will make in a moment) that the proceedings should come to an end, and a stay was an appropriate way of doing it.
15. Mr Dhadly's next point really amounts to this, and I have already referred to it. He submits that in Mr Justice Richards' judgment back in 1999 the judge positively decided that the Review Board must make a fresh decision to the effect that he had a true and genuine liability to pay rent. As I have indicated, Mr Dhadly misreads Mr Justice Richards' judgment and indeed, as I think, partly misunderstands the nature of judicial review proceedings. Judicial review proceedings - at least these judicial review proceedings - are concerned with the decision-making process and not with the actual decision made. In the circumstances of housing benefit, Parliament has set up a structure for determining whether it should be paid and to whom, and that structure does not involve decisions by the court. The court is concerned to review the process and the reasoning, but not to make the decision (again, subject to the point which shall come to in a moment).
16. Mr Dhadly's next point is one of some substance. He submits that this matter has been before the Review Board twice. It has come to decisions which he has successfully challenged twice, and it is inappropriate that the matter should go back to the Review Board. He refers to CPR rule 54.19(3), which in certain circumstances enables the court, even on judicial review proceedings, to decide the substance of the matter itself rather than sending it back to the decision-making body. I have to say that, although I understand that submission, it does not seem to me that there is any real prospect of Mr Dhadly persuading the Court of Appeal that the decision which Mr Justice Stanley Burnton made in that respect was wrong. The circumstances in which rule 54.19(3) applies are essentially those where there is only one substantive decision that is capable of being made and where it is a waste of time to send the thing back to the decision-making body. As I have indicated, although Mr Dhadly takes the view that, by virtue of Mr Justice Richards' decision, there is only one result that the Review Board can come to, he is mistaken. It seems to me that it was entirely open to Mr Justice Stanley Burnton to remit the matter to the Board for further consideration and decision.
17. In those circumstances it seems to me that Mr Dhadly has no real prospect of persuading the full court that any order should be made other than the one made by Mr Justice Stanley Burnton. In particular, it is right to point out that, by virtue of the concession made by the Board, Mr Dhadly has got everything which he is capable of getting out of these proceedings.
18. It is indeed regrettable that this matter has gone on for so long. It is indeed regrettable that Mr Dhadly has had to take two lots of judicial review proceedings to get where he has, and I can quite understand that he does not want to continue for very much longer in order to get a proper determination of his application for housing benefit. Nevertheless, I am entirely unpersuaded that Mr Justice Stanley Burnton's decision was wrong. The application for permission is therefore refused.
Order: application for permission to appeal dismissed.