England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
(HIS HONOUR JUDGE COX)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 21 August 2002

1. LORD JUSTICE ROBERT WALKER: Applications by litigants in person for permission to appeal to the Court of Appeal are generally heard in open court, but not on notice (that is without the respondent to the proposed appeal being given notice of the application or being present). That procedure enables hopeless appeals to be filtered out and apparently meritorious appeals to be permitted with a minimum of costs. However, sometimes the result of the litigant in person alone appearing on the application is that it is impossible for the court, despite the best endeavours of the staff of the Civil Appeals Office to assist in the preparation of bundles, to establish the whole of the basic facts and the real issues on the application. This is, unfortunately, such a case. I feel obliged to adjourn this application to be heard upon notice.
2. I shall summarise the facts, so far as I have been able to ascertain them from the papers before me. I shall indicate the main points on which the court is likely to need assistance from counsel for the proposed respondent, the London Borough of Southwark ("Southwark"). The application by the litigant in person, Mr Frederick Calvert, seems to me likely to fail. However, he has longstanding and deeply felt grievances against Southwark. If his application is to be dismissed, it should be only after the facts and the issues have been fully understood and considered.
3. This is a landlord and tenant matter. The demised premises are a flat at 19 Thomson House, Beckway Street, London SE17. Mr Calvert's father, Mr Gerald Calvert ("the father"), became tenant of the flat as long ago as 1969 living there with his wife, Arsha ("the mother") and, while they were living at home, Mr Calvert and his sister, Beatrice. The family had been compelled by circumstances to move from north of the river. They hoped to be relocated back north of the river, but that aspiration was never achieved. Life was difficult in the flat because the father was disabled, being a double amputee.
4. The father died on 7 October 1981 and the mother succeeded to the tenancy. After the children left home she lived in the flat on her own. On 1 October 1984 she made an application under the "right to buy" legislation then in force which, as I understand it, was the Housing Act 1980 as amended by the Housing and Building Control Act 1984. It is not at all clear what happened to that application. Mr Calvert has described it as having been "put on hold", apparently because of the possibility of relocation north of the river, but it is not clear whether it was ever formally withdrawn and, if so, when.
5. An affidavit made by Beatrice on 25 October 1980 in case LB 642320 (to which I shall return) refers to the mother's unhappy life for which she and her children held Southwark partly responsible because of the poor condition of the flat. She was burgled, first in 1986, and on several occasions after that. In May 1991, in a statement, her doctor described her as "near suicidal".
6. On 27 December 1991 the mother made a second "right to buy" application. Again it is not clear what became of that and Southwark should be able to assist. During 1992 the mother (or Mr Calvert on her behalf) seems to have started two sets of proceedings in the county court against Southwark designated B (Bloomsbury County Court) 932568, and LB (Lambeth County Court) 9210164. It is not clear what these proceedings related to or whether they are still on foot. Southwark may be able to help on that and, in particular, as to whether either was concerned with the mother's right to buy.
7. Sadly, the mother fell ill with cancer and Beatrice moved back into the flat to look after her. It has now been established, but only after contested proceedings (LB 642320), that Beatrice did become resident in the flat for two years before her mother's death on 6 January 1994. At some time during that year Southwark started proceedings for possession (LB 642320) against Beatrice. Those proceedings were not finally concluded until 8 January 1999 when Judge Lindsay QC held that Beatrice was entitled to a secure tenancy by succession. Unfortunately, by then Beatrice herself was very ill. She died on 31 March 1999.
8. In the meantime proceedings started in 1992 (LB 9210164) had been stayed after the mother's death to enable a grant of representation to her estate to be obtained. Mr Calvert obtained a grant to the mother's estate on 22 March 1995, but the proceedings seem to have remained static. That may be because Mr Calvert's solicitor was found to be subject to a severe conflict of interest as she was herself a prominent Southwark councillor. That was one of the matters which Mr Calvert seems to have brought to the attention of the Local Government Ombudsman in a complaint under investigation in 1998, but with what result I do not know.
9. Following the death of Beatrice, the position taken by Southwark seems to have been that any claim to exercise the right to buy disappeared with the disappearance of the secure tenancy. Southwark understood that Mr Calvert was claiming a further tenancy by succession. Mr Calvert's position was that he was not claiming a tenancy by succession but that he was, either as the mother's or alternatively as Beatrice's personal representative, claiming to exercise to right to buy under all the notices which had been served, the last (according to Mr Calvert's defence in the current proceedings) in February 1999.
10. The defence stated:

"The defendants [that is Mr Calvert as personal representative of Beatrice and also in his own capacity] repeatedly complained to their Member of Parliament, the ombudsman and their local councillors regarding the failure of the Claimant [Southwark] to process the application for the right to buy throughout the period of approximately twenty years. Despite these complaints to date the Claimant has refused/failed to process the application for the purchase of the said property."

11. The defence did not admit, but other statements by Mr Calvert tend to indicate, that at some stage (perhaps as long ago as 1992) the family decided to stop paying rent as a protest against Southwark's failure to implement the right to buy. If it really is the case that no rent for the flat has been paid to the local housing authority for a period of about 10 years, that is a remarkable state of affairs.
12. It is, however, clear that on 1 September 2000 Southwark commenced these present proceedings (LB 024149) against (i) the personal representatives of Beatrice, and (ii) Mr Calvert. They were in fact the same person. The particulars of claim claimed over £16,500 arrears of rent against the estate of Beatrice, and damages for use and occupation against Mr Calvert. A defence and counterclaim was put in on 17 April 2001, part of which I have already referred to. That was in compliance with an order of His Honour Judge Cox made on 6 April 2001.
13. On 7 September 2001 the defence and counterclaim were struck out by District Judge Worthington, although there is no copy of the order or the judgment in the appeal bundles. A possession hearing was ordered to take place on 23 November and Deputy District Judge Hayward made a possession order on that date and also an order for the rent arrears and damages. That order is in the appeal bundles.
14. On 12 December 2001 Judge Cox stayed or suspended the possession order because Mr Calvert was proposing to appeal or to have set aside one or both of the previous orders. The order of 12 December is not in the bundle and so the position is rather uncertain. On 2 January 2002 there was an order of Judge Cox adjourning the application until 18 January on the non-appearance by Southwark, and ordering Southwark to pay in any event the costs of the adjournment.
15. On 18 January 2002 Judge Cox made the order from which Mr Calvert wishes to appeal. According to the order, counsel for both sides were present, but it appears that Mr Calvert was not present. He has produced medical evidence, some of which seems to have been before the judge. The order of 18 January 2002, as drawn up, was as follows:

"Upon hearing Counsel for both parties

IT IS ORDERED THAT

Permission to appeal is refused. Paragraph 2 of the order of 7th January 2002 is revoked.

That the appellant pay the respondent's costs of the application summarily assessed at £250.

The applicant's personal responsibility for those costs is deferred to an assessment of his means for the purpose of the relevant regulations which assessment is adjourned generally with liberty to restore.

Public Funding Assessment of the Appellant's costs."

16. Lloyd J wrote in a memorandum dated 25 February 2002 about this order:

"On 18 January, attended by Counsel for both parties (according to the order) Judge Cox made an order refusing Mr Calvert permission to appeal, ordering him to pay the Claimant's costs (and revoking the earlier order that the Claimant pay Mr Calvert's costs) It does not seem to me that this order can express fully what the judge decided. Almost certainly he intended to dismiss Mr Calvert's appeal against the 7 September order, as well as to refuse permission to appeal from his own order."

17. I am not sure that that analysis of the matter is right. However, Lloyd J may have had more papers in front of him than I have. This point, too, must be investigated before the next hearing.
18. The circumstances in which the matter came to be considered by Lloyd J were as follows. Hearing that he was about to be evicted, Mr Calvert made a not on notice application to Park J in the Chancery Division on 18 February 2002. Park J granted a stay of execution of the possession order until determination of the application for permission to appeal from the order dated 18 January 2002. Lloyd J took the view that the appeal would be to the Court of Appeal and therefore Mr Calvert has made his application to this court.
19. Park J's order appears to be the most recent order in this long saga of litigation. In view of all these disputes and obscurities I shall adjourn this application to be heard on notice by two Lords Justices with a time estimate of one hour at the first convenient date on or after 16 September 2002. The issues to be determined are:

1. Does Mr Calvert have any right to seek permission to appeal from the order of the 18 January 2002 (which depends on the true effect of the that order)? I have already referred to the view which Lloyd J took of its effect.

2. If so, is the application one to be made to the Court of Appeal? Lloyd J thought that it should be, and that seems right to me.

3. If so, should the Court of Appeal grant permission to appeal?

4. If not, are there any other extant county court proceedings which might justify extending Mr Calvert's protection from eviction, especially in connection with the application to exercise the right to buy?

20. In order not to raise any false hopes, I should say that the answer to the last question is likely to be "No" since, until the right to buy has been fully exercised, it is not like an option an estate contract (see Bradford City Metropolitan Council v McMahon [1994] 1 WLR 52 (CA); and Bristol City Council v Lovell [1998] 1 WLR 446 (HL)). Nevertheless, this point should be addressed before Mr Calvert is deprived of any remedy in a matter on which he has worked so hard and has, understandably, such strong feelings. It would be of great assistance to the court if counsel for Southwark submits a skeleton argument (whether or not Mr Calvert does so) by 9 September 2002.
Order: Case adjourned to be heard on notice. Transcript of judgment to be provided at public expense to the Applicant.