England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Plymouth County Court
(HHJ TYZACK)

		Royal Courts of Justice Strand London WC2 Wednesday 1st May 2002

1. Wednesday 1st May 2002

1. LORD JUSTICE PILL: This is an application by Mr Ivor Hoskin ("the applicant") for permission to appeal against a decision of HHJ Tyzack given in a judgment at the Plymouth County Court on 30th November 2001. The application has been referred for hearing by a court of three in open court because points of some general interest arise.
2. The judge was hearing an application for permission to appeal against a decision of District Judge Child made on 19th April 2001. District Judge Child had made a possession order in favour of the Plymouth City Council with respect to premises occupied by the applicant at 39 Debden Close, Plymouth. It was further ordered that the order would not take effect for a period of 28 days.
3. Judge Tyzack brought the case before him on this basis:

"List for oral hearing and appeal if permission granted."

4. The first question for this Court is whether the judge in the event refused permission to appeal or dismissed the appeal having granted permission. The order drawn following judgment, which had not been the subject of a draft from counsel who appeared before the judge, read:

"IT IS ORDERED THAT

The application for leave to appeal be dismissed.

The Defendant be allowed until 14th December 2001 to leave the property, 39 Debden Close."

5. It was clearly intended that he should be permitted to remain until that date. The judge also varied an injunction which had been made by the district judge in favour of the city council but, for reasons not explained, that variation does not appear in the order drawn.
6. The first point made by Mr Geldart on behalf of the applicant is that what in substance the judge was doing was dismissing an appeal, having granted permission to appeal. The importance of the distinction is that, by virtue of section 54 of the Access to Justice Act 1999 and to the extent that Judge Tyzack was refusing permission to appeal, the effect of the section, as Mr Geldart concedes, is that there is no right to seek permission to appeal to this Court. Section 54 provides in so far as is material:

"(1) Rules of court may provide that any right of appeal to... (c) the Court of Appeal, may be exercised only with permission.

(4) No appeal may be made against a decision of a court under this section to give or refuse permission..."

7. Mr Geldart relies on what he describes as the tone of Judge Tyzack's judgment. The judge did not refer, as might have been expected, to the test for granting permission in CPR 52.3.6:

"Permission to appeal will only be given where---

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

8. It is submitted that the judge dealt with the case as if he were dealing with an appeal and not an application. His judgment concluded with the words:

"There are no grounds and no merit in this appeal and it is dismissed."

9. I am not persuaded than the judge did other than what he said he was doing in the opening words of his judgment:

"This is an application by Mr Ivor James Hoskin for leave to appeal and if leave is granted, to pursue his appeal, against an order or orders made by District Judge Child on 19th April this year. On 19th April, District Judge Child granted the Plymouth County Council, who are the claimants in the action, an order for possession of a property called 39 Debden Close, Ernesettle in Plymouth and he made an order that the defendant, Mr Hoskin, should leave that property on 17th May this year. In addition he made an injunction order against Mr Hoskin forbidding him, after leaving 39 Debden Close, to enter Debden Close or Middleton Walk for six months from that day, which then was 19th April, and he made an order, as I say, that the order should remain in force for six months, namely until 19th October 2001."

10. The ground for the possession order was the alleged behaviour of the applicant towards neighbours.
11. The judge could certainly have made it clearer in the language he used that he was dealing with an application. There could have been a reference to CPR 52.3(6) and more appropriate closing words would also have done so.
12. While no specific point is taken upon the judge's use of the word 'dismissed' rather than 'refused', it may be noted that the language used in the rules in relation to applications for permission is "refusal": see CPR 52.3(3) and (4).
13. An order was however drawn up and disclosed to the parties as a decision upon an application; and, in relation to the possession order and the question of its suspension, that, in my judgment, is what the judge intended to do and did.
14. There is, however, a second basis upon which an application to appeal against at least part of the judge's order may be made. The application for permission to appeal to the circuit judge was made by the applicant in person. (He had been represented by counsel before the district judge.) By his application to Judge Tyzack he sought an order:

"That the possession order be suspended in the meantime and the injunction suspended."

15. Having refused permission to appeal upon the issue of suspension, as he intended to do, the judge was then asked by the applicant, and agreed, to postpone the date of possession "as a matter of mercy" for a further period of fourteen days. The judge had also himself considered the question of the duration of the injunction which had been made against the applicant and varied the period for which that was to apply. Mr Geldart submits that in making those orders the judge was dealing with an appeal so that a second appeal is possible and is not barred by section 54(4).
16. It is then submitted that there is a compelling reason for allowing permission to appeal within the meaning of CPR 52.13:

"(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal.

(2) The Court of Appeal will not give permission unless it considers that--

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

17. The basis on which the second appeal is sought is that, when making the decisions he did, the judge misunderstood the provisions of the Housing Acts. The judge was under the impression (as appears from the transcript of submissions following his main judgment) that the local authority had a broad duty to house the applicant. In fact, submits Mr Geldart, the duty was the much more limited one in section 190 of the Housing Act 1996. Because the possession order had been made on the grounds it was, the applicant is likely to be treated as an intentionally homeless person within the meaning of section 191 of the Act. Had that been made clear to the judge, the judge would be likely to have given possession to appeal and suspended the order. Moreover, it is submitted, the judge did not approach the question of suspension in the systematic way which HHJ Medawar QC approached it in the case of Mayor and Burgesses of the London Borough of Lambert v John Andre Howard. Judge Medawar's approach was approved by the Court of Appeal on 6th March 2001 (transcript, unreported). It is also submitted that the applicant was in person before the circuit judge and could not expect to have understood the point that had arisen before the district judge as to his (the applicant's) rights under the Housing Act.
18. In my judgment, whether or not I am right on the jurisdictional issue, a compelling reason for a second appeal is not established. In reaching that conclusion I have regard to the continuing jurisdiction of the county court with respect to suspension and postponing the date of possession and with respect to the injunction. As Mr Parker for the city council points out, section 85(2) of the Housing Act 1985 provides, under the side heading "Extended discretion of court in certain proceedings for possession":

"On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may--

(a) stay or suspend the execution of the order; or

(b) postpone the date of possession, for such period or periods as the court thinks fit." (my emphasis)

on application now to the district judge it is open to that judge in the county court to exercise a discretion under that section. The changed circumstances which it is sought to argue before this Court could be brought to the attention of the district judge. In my judgment a compelling reason does not begin to be established in circumstances such as these, when an effective remedy is possible in the county court, though it is for that court to decide whether to provide it.

19. The same applies with respect to the injunction. Section 152 of the Housing Act 1996 gives jurisdiction to a county court to grant injunctions against antisocial behaviour. Provision is made in subsection (5) for the variation of an injunction made under the section.
20. The case has not been put in this way on behalf of the applicant, but, in my view, Judge Tyzack was in substance exercising an original jurisdiction under section 85(2)(b) of the Housing Act when he postponed the date of possession. Having refused permission to appeal, it was not open to him to exercise an appellate jurisdiction. He was, however, entitled to exercise an original jurisdiction under the statute. The law provides, as one would expect, a power to mitigate the effects of a possession order when the matter came before the circuit judge in the way it did.
21. That leaves open the possibility of a first appeal from that exercise of original jurisdiction, though I repeat that the case has not been put on this basis. It appears that such an appeal should have been made to a High Court Judge. In the circumstances I am, however, prepared to indicate that, in my judgment, treating the application as one for permission for a first appeal, I would, have refused it on the ground that there is no real prospect of success. The appeal court would not in the present circumstances be prepared to interfere with an exercise of discretion as to date of possession, following a possession order, when quite apart from other possible considerations, there is a continuing remedy in the county court. It is normally far more appropriate that issues such as this should be dealt with in the county court.
22. What does emerge from the present case is the importance of judges, in situations such as the present, directing themselves upon the jurisdiction they are exercising. Moreover, they should use language which makes clear whether they are dealing with an application, or, having granted an application, with an appeal, if that be the case. If, having refused an application for permission, they exercise the original jurisdiction open to them, that too should be made clear.
23. For the reasons I have given, I would refuse the application. Because of the points of general interest which arise, the judgments given in this Court may, if appropriate, be cited on future occasions.
24. LORD JUSTICE CHADWICK: I agree that this application should be refused.
25. When adjourning this application to be heard by a Full Court, Sedley LJ recorded that counsel for the applicant had expressed the view that the right course was for his client to renew what he described as "the issue of suspension" on an application before the district judge. That course was plainly open to the applicant in this case. Section 85(2) of the Housing Act 1988 provides that at any time before the execution of an order for possession made under Part IV of that Act "the court may stay or suspend the execution of the order or postpone the date of possession". Sedley LJ expressed the view that that course was preferable to the pursuit of proceedings in this Court and he expressly encouraged the applicant to pursue that course.
26. For reasons which have not to my mind been adequately explained to us, the applicant did not take that course. Instead he has pursued this application. In my view this application is misconceived. The reasons may be put shortly.
27. First, in so far as the order appealed from was or includes a decision by the county court judge to refuse permission to appeal to the county court, no appeal lies from it: see section 54(4) of the Access to Justice Act 1999.
28. Secondly, in so far as the county court judge is to be taken as having heard an appeal - a contention which is plainly inconsistent with the order which he made - then an appeal to this Court would be within section 55(1) of the 1999 Act. Permission to appeal could not be given unless this Court were persuaded that the appeal would raise an important point of principle or practice or that there was some other compelling reason for this Court to hear it. The appeal raises no point of principle; and, in the circumstances that the matter can be more conveniently pursued before the district judge in the county court, there is no compelling reason for this Court to hear a second appeal.
29. Third, in so far as the judge was exercising an original jurisdiction in relation to the postponement of the date for possession and the continuation of the injunction, an appeal would lie to the High Court, not to this Court.
30. I wish to associate myself with what Pill LJ has said about the need for judges to direct themselves carefully as to the particular jurisdiction that they are exercising. Where an application for permission to appeal is listed for hearing with appeal to follow if permission is granted, it is inevitable that the court hearing the application for permission will be addressed and form a view as to the merits of the proposed appeal. It is important that, if he reaches a decision against the applicant, he indicates clearly whether he is refusing permission to appeal, or granting permission and dismissing the appeal (as the case may be), because the distinction may have important consequences.
31. LORD JUSTICE CLARKE: I agree with both judgments. Mr Parker concedes, in my opinion correctly, (1) that the applicant is entitled to make a fresh application to a district judge for an order staying or suspending the execution of the order for possession; (2) that on such an application the district judge has a wide discretion; and (3) that on such an application the discretion of the district judge is not in any way affected or fettered by the reasons given by District Judge Child for refusing to suspend the order for possession which he made. In short, on such an application the district judge can take all relevant circumstances into account as they appear at the time of the application. Those will include any medical evidence which is before the court, any evidence as to the applicant's behaviour since the original order and the effect of an immediate order for possession which is not suspended upon the likelihood of the applicant being rehoused by the respondent under the Housing Act 1996. In short, the applicant's position will be fully protected and all relevant arguments can be heard on both sides of the question on any such application.
32. I agree that this application should be refused.

ORDER: Application refused; section 11 order on the respondent's costs; assessment of applicant's publicly funded costs.