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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 >> Plymouth City Council v Hoskin [2002] EWCA Civ 261 (18 February 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/261.html
Cite as: [2002] EWCA Civ 261
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(His Honour Tyzack QC)
Strand London WC2 Monday, 18th February 2002 |
||
B e f o r e :
____________________
| PLYMOUTH CITY COUNCIL | Claimant/Respondent | |
| - v - | ||
| IVOR HOSKIN | Defendant/Applicant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Applicant.
The Respondent did not appear and was unrepresented.
____________________
Crown Copyright ©
- LORD JUSTICE SEDLEY: Mr Hoskin is seeking permission to appeal from the county court judge's refusal of permission to appeal to the county court against the outright possession order made against him by District Judge Child. The applicant, who is disabled, was a council tenant in Plymouth. The District Judge found proved, albeit it was not the entirety of the case against him, a long history of intolerable anti-social conduct, entitling the Court to make a possession order, which might be either suspended or outright.
- On 19th April 2001 the District Judge ordered possession to be given outright by 15th May 2001 and also granted an injunction, good for six months, against re-entering the particular street where the applicant lived.
- On 30th November 2001 Judge Tyzack QC refused permission to appeal on the ground that the District Judge had reached a decision open to him after a fair and properly conducted hearing. He did however, as he had to do, adjust the possession order to take effect on 14th December and adjust the injunction to run from 30th November.
- It is to be noted that Mr Hoskin, although he had been represented by counsel before the District Judge, had appeared in person before the County Court judge. He was much aggrieved at the findings of anti-social conduct, and it was upon these that he concentrated his complaints.
- In the result, the judge did not have his attention drawn to, and was not asked to consider, an application for permission to appeal against what seems to me by far the most debatable aspect of the District Judge's decision, the decision to make an outright order for possession.
- What is now a serious subject of complaint, and is now supported by a transcript of proceedings before the District Judge, is that the District Judge had sought, and was given by counsel for the local authority, reassurances about what would happen to the applicant if and when he was evicted. These, it is now sought to be said, were wrong in law. I will not read them out, but they can be found between pages 21B and 23E of the bundle in transcript form.
- It is not, in my view, in the least fair to say that this dialogue shows counsel for the local authority misleading the District Judge. At present, I can see nothing inaccurate in what counsel said, but it does arguably show a failure on the District Judge's part to realise that the answer given by the local authority to the gateway question, "Is the applicant intentionally homeless?", was almost bound to be "Yes" in the light of the reasons for his eviction. If so, the result, as counsel for the local authority's answers demonstrated, would be that no obligation to provide for Mr Hoskin's accommodation would thereafter arise. The comfort apparently derived by the District Judge from the information he was given would then be wholly baseless.
- The transcript also, rather unfortunately, shows the District Judge making up his mind before hearing the applicant's counsel, although it must be said immediately that he then listened to what Mr Hoskin's counsel had to say before reiterating his decision. Even so, it might be said that the suggestion of a medical report might have been a good one before a decision was finally taken whether to suspend the order or not.
- The District Judge may also be thought to have taken what this court has more than once recently pointed out is the somewhat cavalier attitude that the Human Rights Act and Article 8 of the Convention add in practice nothing to the well-known statutory test of reasonableness. The Act and the Convention do require a more methodical approach to the question of what is proportionate and therefore reasonable, even though, as one would expect, in nine cases out of ten the result is the same.
- I mention all these things for a reason. In the three-day hearing before the District Judge the applicant was represented by counsel, but when he found himself in person before the county court judge he simply did not deal with the issues that I have picked up. Nevertheless, the possession order itself was in front of the County Court judge, and it is because he adjusted its terms that Deputy Master Di Mambro has suggested that this court may have jurisdiction notwithstanding section 54(4) of the Access to Justice Act 1999.
- The argument is a difficult one, and was not one which Mr Geldart, who happily appears for Mr Hoskin today, was minded to develop. He felt, rather, that the right course was for an attempt to be made to renew either the issue of suspension before the District Judge or the question of permission to appeal before the County Court judge on grounds which I have indicated and which he would want to say have not been the subject of a formal decision below.
- Both those courses, if viable, seem to me preferable to the pursuit of proceedings in this court; and Mr Geldart has my encouragement to pursue either or both of them. But there remains on foot the present application for permission to appeal, and I have to say that for the reasons I have given I find the situation extremely troubling. I may say, first of all, that if I had been sitting in the county court judge's chair, I would have given permission to appeal, and I would have done so in spite of the applicant's lack of focus upon what I regard as the real issue. Whether what the county court judge in the event did, having refused permission to appeal, is enough to give this court jurisdiction is highly problematical, but I think that this court ought, if legally possible, to be enabled to take on board the making of an outright possession order in the circumstances which I have described.
- I propose, therefore, to adjourn this application for permission to appeal to a full court. It is to be heard on notice with the appeal to follow if permission to appeal is granted. The applicant is now represented, and that is very much to the good.
- Finally, pending any renewal of the application before the full court, there will be a stay on the execution of the possession order with liberty to apply to lift it if, for example, there were to be any further anti-social behaviour on the applicant's part. He, for his part, will no doubt be told, if he has not already been by Mr Geldart, that he is walking on eggs and that his conduct is going to be a matter of very great importance in the coming weeks and months.
- I should add one further thing. The application is made out of time. The request for an enlargement of time will also therefore be stood over to the full court. I think I should also say, because this case raises a difficult question of jurisdiction, that either Brooke or May LJJ should be a member of the full court.
Monday, 18th February 2002