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 LAMBETH COUNTY COURT
(HIS HONOUR JUDGE COX)

		Royal Courts of Justice Strand London, WC2 Friday, 20 September 2002

1. LORD JUSTICE WALLER: This is an application by Mr Calvert, acting both in his personal capacity and as personal representative of his late sister, for permission to appeal from a decision of His Honour Judge Cox which was itself a refusal of permission to appeal from a decision of the district judge.
2. The background is a lengthy and unhappy one. The Calvert family were granted a tenancy of 19 Thomson House, Beckway Street, London in December 1969. That tenancy was in the name of Mr Calvert's father, Gerald Calvert. He died in October 1981. As the result of his death, the appellant's mother, Mrs Arsha Calvert, succeeded to the tenancy, and about that there was no dispute. While she was a tenant, applications were made to buy the property, one made in October 1984 and then a further one made in December 1991. The precise circumstances in which those rights to buy were not pursued are ones about which there may be considerable dispute, but on any view the time taken to deal with those applications for the right to buy is considerable and Mr Moore, who represented the Borough of Southwark on this application, accepted that there was a very long timescale.
3. Unfortunately, Mrs Calvert died in January 1994. There was then a dispute between the council and the Calverts as to whether Beatrice Calvert, the appellant's sister, had succeeded to the tenancy. It took some five years to resolve that matter, the council contesting Beatrice Calvert's right to succeed, but ultimately His Honour Judge Lindsay held that she had that right. That matter again appears to have taken an excessive time to resolve and, unfortunately, by the time of its resolution Beatrice Calvert was very ill, and indeed she died on 31 March 1999.
4. The position as a matter of law is that there can be two members of a family who may succeed to a tenancy but not a third, and the position taken by the council at that stage was that it was now entitled to take possession of the premises, and there be no tenant. It served a notice to quit on 26 June 2000. Following that notice to quit, it took possession proceedings in August 2000, and it was in response to those possession proceedings that Mr Calvert, in his personal capacity and as personal representative, filed a defence and counterclaim alleging breaches of the tenancy agreements that had existed between his mother and his sister. The council rightly took the view that such a defence and counterclaim could be no answer to possession proceedings, and it applied thus to strike out the defence and counterclaim. That application was made in July 2001. It came on initially before District Judge Worthington on 23 July and was then adjourned to 7 September 2001. Unfortunately, Mr Calvert was not present at the hearing on 7 September, and the district judge struck out the appellant's defence and counterclaim.
5. In November 2001 Mr Calvert issued an application to set aside the order of 7 September. There was some complication as to whether that application had actually been issued, but in any event when there was a hearing on 23 November in relation to the possession proceedings, the appellant did apply to set aside that order. The district judge refused to set it aside and made an order for possession. It is that order for possession which Mr Calvert attempted to appeal. In order to appeal a decision of the district judge to the circuit judge, because of the new rules of procedure which had come in, Mr Calvert needed permission. That is Part 52.3, and has been explained to be the position in various Court of Appeal authorities, including the case of Tanfern v Cameron-Macdonald [2001] WLR 1311 at paragraph 20.
6. Initially that application for permission to appeal was adjourned by His Honour Judge Cox because the respondent was not present. Mr Calvert makes complaint about this in that when the matter came on for hearing before His Honour Judge Cox on 18 January, the appellant wished the matter to be adjourned because he could not be there but His Honour Judge Cox refused to adjourn and Mr Calvert says that there was not equality of treatment. But the position was that on that day Mr Calvert was represented by counsel, or it may be by solicitors. In any event he suffered no injustice as a result because the point that arose before His Honour Judge Cox was a purely legal point and did not require evidence or anything of that sort. His Honour Judge Cox in a reasoned judgment refused permission to the appellant, Mr Calvert, to appeal and he made an order for costs.
7. Following that refusal, a warrant of eviction was issued on 13 February. That obviously induced Mr Calvert to react and he appeared without notice in front of Park J to ask for a stay of the warrant. He obtained that stay on the basis that grounds of appeal should be filed immediately, which they were on 19 February. For some reason which is not explicable, that application for permission did not come on until last month, 21 August, when Robert Walker LJ adjourned the matter to today in order to allow Southwark to be represented. Indeed, Southwark has been represented today by Mr Moore.
8. Unfortunately, as my Lord has already indicated to Mr Calvert, the position of this court is clear. The decision of His Honour Judge Cox was a decision refusing permission to appeal. Under the Access to Justice Act section 54(4), as now recognised in a variety of different Court of Appeal authorities which have been placed before us by Mr Moore, this court simply has no jurisdiction to consider an appeal from a refusal of permission. It is right that a costs order was made and in theory the court does have jurisdiction to consider an appeal against the costs order, but where that costs order has been made in relation to a permission to appeal, and where permission to appeal has been refused, this court has stated quite clearly that it is most unlikely that any permission to appeal against an order for costs would ever be made. It would require a very strong case on the merits, or some exceptional circumstance, to even consider granting permission.
9. So far as Mr Calvert is concerned, as again emphasised by my Lord during the argument, the merits of his position in law are as explained by Judge Cox in his judgment. The position is absolutely clear. It simply cannot be an answer to possession proceedings to allege a claim as a personal representative relating to matters which occurred while those being represented were alive. So this is not a case where there is a strong case on the merits, and there are no exceptional circumstances in which this court would or could grant permission to appeal. It is right to say also that in fact Mr Calvert was late in making the application to this court, but if that had been the only point and if he had a strong case on the merits, that would have presented no difficulty.
10. Of course, as a matter of background, Mr Calvert appears to have substantial basis for complaint about the delays which have occurred while his mother was alive and while his sister was alive. We cannot know the detail, we cannot know the areas of dispute, but that naturally gave us very serious cause for anxiety. It appears on the face of it that Mrs Calvert had a right to buy and then she died, and thus it lapsed; it appears that Beatrice Calvert had a right to buy, and then before the matter could be sorted out she died and thus it was not completed. That seems, at least on the face of it, to produce certainly a moral obligation on the council to consider whether what, as I say, on the face of it appears to be an injustice, could not be remedied in some way.
11. Mr Moore, who has appeared before us for the council, was asked by the court whether he could give some explanation as to why there was the delay from 1981 through to 1994, and why the right to buy was never processed. He does have representatives of the council with him but they do not have the file which indicates the full history, so he was unable to give a full explanation. Furthermore, he could not seek instructions as to whether it might not be possible to give some consideration to whether this apparent injustice to the Calvert family may not even at this stage be rectified by Mr Calvert being made a tenant or being offered the property on equivalent terms to those which would be offered to somebody who had a right to buy. But Mr Moore and those sitting behind him clearly recognise that in the absence of some further explanation Mr Calvert does have certainly a moral claim to have these matters further considered, and we rose during the argument to see whether there was anything that the Borough of Southwark were prepared to do at this stage.
12. What Mr Moore has been prepared to do on behalf of the borough is to give an undertaking that within 21 days a written explanation will be given as to why the rights to buy were not processed. He has also, on behalf of the borough, been prepared to give an undertaking that the borough will at least look at the question as to whether either a tenancy or an opportunity to buy the property might not even at this stage be offered to Mr Calvert. Mr Moore explained that the London borough is constrained by its statutory powers, and no one is suggesting that it should break or act beyond those powers. But one would hope that if on an examination of the detailed history -- and of course there will be different persons involved now from those who were involved during the period when Mrs Calvert occupied and Mr Calvert's sister occupied -- it does appear that it was, in effect, just bad luck that Mrs Calvert did not buy this property, or bad luck that the sister did not buy, they dying just at the moment when that right should have been fulfilled, then one would hope there is some way in which the borough can rectify what would appear to be an injustice by making some offer to Mr Calvert.
13. One ought to stress this so far as Mr Calvert himself is concerned. He, I hope, will have taken on board the difficulty of his personal position as a matter of law. He will himself have to accept that his position as a matter of law is weak in the extreme. He will have to consider carefully, if some offer is made, as to whether it is not sensible to compromise his position with the Borough of Southwark in a way which may seem to him to be unjust in the history of the matter but will be in fact, having regard to the position he is in, a sensible move which will bring an end to the years of unhappiness that he says he has suffered and put a full stop to it, so that he can get on with his life without the anxieties and worries that there have been in the past.
14. But for the reasons that I have given, I would dismiss this application.
15. LORD JUSTICE WARD: I agree with my Lord. The position in law is absolutely plain: the application made by Mr Calvert to this court is bound to fail and must fail. But I concur entirely with the observations of my Lord about the way in which this matter should be looked at again by the Southwark Borough and as to the need for each of these parties to take a realistic view of their present position. The application is therefore dismissed.
ORDER: Application dismissed, upon the council undertaking to provide a written explanation of the delays to the applicant and to consider possibly taking an exceptional course. (Order not part of approved judgment)