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 HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London, WC2 Monday, 11 November 2002

Monday 11 November 2002

1. LORD JUSTICE SCHIEMANN: Before me is an application for permission to appeal a decision of Ouseley J to refuse an application for permission to move for judicial review. The facts of the case are set out in the judgment under appeal [2002] EWHC 1929 (Admin).
2. It is a Housing Act case of a foreigner with a baby who was accepted as being in priority need, was offered some accommodation, and there appears to have been some confusion as to whether she had unreasonably rejected it or not. Ouseley J formed the view that it was arguable that there had indeed been some confusion or misunderstanding in the housing authority's case.
3. The proper way of appealing that sort of case is by way of a statutory appeal to the county court. There is a time limit in relation to that appeal. The relevant time was over Christmas and New Year, and the time limit was missed by a very short period. At the relevant time there was no power in the county court or anyone else to extend that time limit. There was then quite a substantial further delay, none of which, so far as I can see, can be attributable to the applicant herself, some of which is attributable to those to whom she went for advice during which time she did not make an application for judicial review.
4. In due course she sought the advice of Mr Knafler and thereafter made that application, but that application by that time was out of time and Ouseley J said that by reason of that delay as a matter of discretion he would refuse the application for permission to move for judicial review.
5. The applicant then made an application for permission to appeal to this court, which was considered on the papers by Keene LJ, who said this:

"It is impossible to say that Ouseley J exercised his discretion improperly. Not merely is this application for judicial review well out of time and without an adequate explanation for the extent of the delay, but there was an alternative remedy by way of statutory appeal under section 204. That should have been pursued in time. Judicial review is an inherently less suitable method of resolving the type of issue arising in this case. In those circumstances there is no real prospect of a successful appeal."

6. It is clearly right that judicial review is inherently unsuitable for resolving these type of issues, and that is no doubt why Parliament has now changed the law permitting time to be extended in the county court when there is a mistake of this kind.
7. However what I have been able to focus on with the help of Mr Knafler is the injustice which falls on this lady in the circumstances of the case, and I have to consider what the purpose of the time rules are in judicial review, it having been accepted by Ouseley J that in principle judicial review was a possible course of action in this type of case, notwithstanding the consideration to which Keene LJ drew attention. Civil Procedure Rule, Rule 54.5 provides that a claim form must be filed promptly and in any event not later than three months after the grant to make a claim first arose. There is no doubt that this claim was not made promptly, and not within the three months referred to. However one has to bear in mind that the rules also give a power to extend times laid down in the rules. That is to be found in rule 3.1.2. The Civil Procedure Rules in general indicate in the very first Part which draws attention to the overriding objective that we are here in a situation where we have the overriding objective of enabling the court to deal with cases justly, and also to ensure that they are dealt with expeditiously and fairly.
8. The problem that the court is faced with in this type of case is one to which Sir Thomas Bingham MR drew attention in Costellow v Somerset County Council [1993] 1 WLR 256 at 263G - 264A: in short, that the court is faced with the intersection of two principles, one is that time rules are there to be observed, and the second is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of a procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.
9. In the present case the practical effect on this lady of the decision by Westminster is that although she is acknowledged as being in priority need of housing she cannot get further access to having that need satisfied because it is held that she has unreasonably refused a prior offer. That is of course a perfectly sensible general rule to have, otherwise people will keep on shopping around for better and better accommodation and the administration might well be damaged. But in a case where the very issue is whether she did refuse a prior offer (and this was the very fact which was identified as an issue extremely early on in this dispute) it seems extremely hard on her to be branded for ever as being an unreasonable person. On the Council's side the prejudice alleged is that the relevant council officer has now forgotten precisely what was said by whom and when. Although in principle that would be a perfectly sensible ground for objection, on the facts of this case it is in any event arguable that the lady concerned is in as good a position now as she was round about the time because the relevant correspondence and thought processes are indicated by her and in the statement that she has made.
10. So far as the other people on the housing list are concerned it does not seem to me that they are unduly prejudiced by this. The lady concerned is presumably still living in unsatisfactory accommodation. Meanwhile, the accommodation which she allegedly unreasonably refused is no doubt occupied by someone else and clearly she will not go there. The real underlying question is whether she is to be struck out of the list of deserving candidates for ever by reason of something that may have been a muddle.
11. With that sort of background it seems to me it is right to extend the time and to grant permission to move for judicial review and to send the case back to the Administrative Court. It is fairly clear that this way of looking at it was not one adopted by Ouseley J, who focussed on precisely whose fault it was that there had been a delay, and came to the conclusion at paragraph 22:

"I do not regard it as a good reason for the extension of time that matters now raised, which I consider arguable, were not considered by solicitor or counsel until towards the end of March when Mr Knafler was involved."

12. It seems to me that while those are relevant considerations they should have been balanced and indeed overbalanced by decisions as to the importance of people's housing needs being met.
13. May I echo the hope which was already expressed by Ouseley J at the end of his judgment that the City Council will reconsider her position in relation to her accommodation. Housing authorities have enormous problems and this court is well aware of them; but to adopt the attitude that we are simply not going to consider you because of the way we think you have behaved, does not, on the face of it, provide an arguable reason, unless the Council is right as to what they think is the way that she has behaved; and that is the very issue which Ouseley J considered to be arguable.
14. In those circumstances I grant permission to move for judicial review.
(Application granted; no order for costs).