England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HERTFORD COUNTY COURT
District Judge Eynon
5HF00854

		B5/2007/0328(A) Royal Courts of Justice Strand, London, WC2A 2LL
		01/04/2009

Lord Justice Toulson:

Introduction

1. This is an appeal against a summary possession order made by District Judge Eynon on 3 November 2006 in respect of a council flat which had been let to the appellant by the respondent council. The hearing of the appeal was deferred pending the decision of the House of Lords in Doherty v Birmingham City Council [2008] UKHL 57, [2008] 3 WLR 636. The flat is on the ground floor at 20 Kingscroft, Welwyn Garden City. It was let to the appellant in August 2000.
2. Most tenancies granted by a local authority are secure tenancies under the Housing Act 1985, s79, but para 4 of schedule 1 to the Act makes an exception in the case of a tenancy granted in pursuance of a council's homelessness functions under part VII of the Housing Act 1996 (unless the local housing authority notifies the tenant that the tenancy is to be regarded as a secure tenancy). That exception applies in the present case. The tenancy was therefore terminable by service of a notice to quit. However, a council's decision to serve a notice to quit and seek eviction of the occupier from the premises is in some circumstances open to challenge on public law grounds.
3. In this case the issue is whether the appellant had a seriously arguable defence on public law grounds. If so, summary judgment should not have been ordered.

Facts

4. At the start of the tenancy the appellant was living with a partner and she was pregnant. They both had problems with drug addiction.
5. In 2001 their young baby was taken into care and subsequently placed for adoption. In 2002 the appellant and his partner split up and she left the property.
6. From about September 2003 the council received repeated complaints from a neighbour, Mrs Clementson, who lived with her husband at 27 Kingscroft. She kept a diary of events. She said that she and her husband were frequently woken or kept awake by noisy individuals outside their flat shouting for the appellant. Sometimes they could be heard talking about drug dealing. On a number of occasions she called the police. The implication was that the appellant was a drug dealer, or believed to be so, and that he was a magnet for noisy and ill-behaved visitors. On two occasions the police carried out drug raids but found nothing.
7. As a result of the complaints, the council decided to serve a notice to quit on the appellant. This was done on 30 April 2004. A covering letter stated:

"Welwyn Hatfield Council have received a number of complaints about anti-social behaviour caused by groups of youths looking for and visiting your property.

The complaints about the behaviour are numerous and come from more than one source. The behaviour described involves large groups of youths shouting and swearing, drunkenness and fighting at very inappropriate times. This kind of behaviour is unacceptable and will not be tolerated by the Council.

I would draw your attention to paragraph 2.4(a) of your Tenancy Agreement which states:-

"You must act in a reasonable manner, and avoid conduct likely to cause:

danger

nuisance

discrimination

harassment

to neighbours or others.

You are also responsible for the actions of people who live with you or visitors to your home."

…

Please, therefore, make arrangements to return the keys to the Council Offices…failure to return the keys by 10 May 2004 will result in the council asking our Legal Department to apply to Court for a Possession Order." "

8. At the time the appellant was receiving help from a voluntary organisation called Chrysalis Drug Project Limited. On 20 May 2004 Ms Keeney, a drug worker with the charity, wrote to the council:

"Tom McGlynn of 20 Kingscroft Welwyn Garden City has brought to my attention a notice to quit dated 28 April 2004…I have had a long chat with Tom regarding the situation and he has expressed his own problems that he has at the property and in fact he wishes to move and has done so for a long time but he believes he is in rent arrears of over £500 and is not able to do so. As you are probably aware he is a single male living in a two bedroom property. Tom wishes to move to a one bed as he feels that the flat is too big for him. At present Tom is trying to turn his life around. He is regularly attending Chrysalis due to his substance misuse and he's currently doing very well. Tom is well known to the police and on several occasions the police have been to the property knocking on the windows and calling his name. Tom is also well known in the area and unwanted visitors do turn up at the property, not usually people that know him but know of him. He is trying very hard to stay away from it all so Tom has taken to not answering the door to people and ignoring them knocking on his windows. These visitors are just as unwelcome to Tom as they are to his neighbours and apart from ignoring them Tom feels there is not a lot more he can do about it. Tom does not wish to hand his keys in as he will have nowhere else to live. He is willing to meet with you to discuss this so he can work with the council to resolve these problems."

9. After a chasing letter from Chrysalis, the council sent a reply dated 2 June 2004, which was to form an important part of the appellant's case. The letter stated:

"We have received a number of complaints regarding visitors to Mr McGlynn's property and also about his own behaviour. The complainant is aware that their evidence will be needed in court and they are willing to assist the council and have agreed to give evidence in court if needed. Should the council be required to apply for a Possession Hearing Mr McGlynn will have the opportunity to offer a defence, either personally or via a Solicitor, to the Court.

The Local Authority does not take action against a person's tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality. The Local Authority also liaises closely with the Police in relation to complaints received and they have confirmed that they have received a number of calls regarding the anti-social behaviour caused by either Mr McGlynn and/or visitors to his property.

Mr McGlynn has a non-secure tenancy that can be brought to an end by serving a Notice to Quit. As a Notice to Quit was served on 28 April 2004, Mr McGlynn no longer holds a current tenancy with Welwyn Hatfield Council. However, we would need to apply to the Court for vacant possession of the property.

If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested. However, if the complaints continue, we will have no option but to continue with the legal action required to repossess 20 Kingscroft…

If you require any further information, please do not hesitate to contact me on the above number. I am, of course, willing to discuss any matter directly with Mr McGlynn."

10. From July 2004 to April 2005 the complaints continued month by month. On 14 April 2005 the council issued a claim form and particulars of claim seeking an order for possession.

History of the action

11. The particulars of claim, paragraph 2, stated that the premises were let to the appellant under a non-secure tenancy agreement and set out the terms of the agreement as to payment of rent and avoidance of nuisance. Paragraph 3 stated that the council "seeks possession of the premises because the defendant has breached the express terms of the non-secure Tenancy Agreement." It set out particulars of non-payment of rent, with which we are not presently concerned, and particulars of nuisance. Under the latter heading the pleading gave details of 9 alleged incidents between 21 December 2003 and the date of service of the notice to quit. Paragraph 4 stated that in view of the appellant's failure to pay rent and/or to act in a reasonable manner a Notice to Quit terminating the tenancy was served on 30 April 2004 expiring on 31 May 2004. Paragraph 5 stated that despite service of a notice to quit the appellant continued to remain in occupation of the premises and continued to cause nuisance to neighbours. Schedule B to the particulars of claim set out details of 22 alleged incidents of nuisance between May 2004 and January 2005.
12. Service of the particulars of claim was followed by formal evidence from the council proving service of the notice to quit. On 4 August 2005 the council served a witness statement made by Mrs Clementson, giving details of the instances about which she had complained.
13. On 8 August 2005 a deputy district judge gave directions for the claim to be heard on 16 November 2005, with a time estimate of 45 minutes. He also directed the appellant to file and serve any witness evidence he intended to rely on 5 days before the hearing date.
14. On 11 November 2005 the appellant served a witness statement. In it he denied all the allegations made by Mrs Clementson. He said

"I strongly believe that she made up the allegations against me so that she could get moved".

and:

"I do not know the people who the lady at number 27 is talking about and I did not and have never invited these people to my home. They are nothing to do with me. The fact is even I reported nuisance which I was, and still am a victim of. My drug worker, Caroline Keeney, wrote to the council in the...letter dated 2 June 2004…asking for assistance on my behalf."

15. He also described an incident in October 2005 when somebody passing the premises threw a paving slab through his living room window.
16. On 16 November 2005 witnesses attended for the hearing of the claim, but it was recognised that the time estimate of 45 minutes would not be long enough to deal with the case. (This appears from a skeleton argument on behalf of the appellant, dated 1 October 2006, which was prepared for a later hearing.) At the same time it was decided that the council would seek a possession order on the sole ground that a valid notice to quit had been served. It is not entirely clear whether this was suggested by the district judge or whether the initiative came from the council. Be that as it may, the order made on that occasion recorded that possession would be sought on the ground that a notice to quit had been served, and the hearing of the claim was adjourned to 7 December 2005, with a direction that the appellant should serve any further evidence on which he intended to rely by 30 November 2005.
17. The appellant served a second witness statement on 29 November 2005. In it he complained that the council had not acted fairly towards him. The first complaint against him had not been made until 2 years after he had moved into the property. He had always been open about his past problems with drugs, and he had been making good progress in addressing the issue. He also complained that it was not fair to issue a notice to quit and then wait 12 months before taking court action against him, especially since the only neighbour relied on by the council as a witness had herself been re-housed. He was supported by a witness statement from his former partner, who said that the appellant had generally got on well with his neighbours and she felt that he was being used as a scapegoat by the council's witness, who wanted to move from the property.
18. On that material the matter came before District Judge Eynon on 7 December 2005. For the purposes of the hearing he said that he accepted the evidence of the appellant that "I have never caused a nuisance at mine or anybody else's property, nor have I encouraged or allowed anyone else to do so". However, he held that since the appellant was not a secure tenant, he was bound by the decision of the Court of Appeal in Sheffield City Council v Smart [2002] EWCA Civ 04 [2002] LGR 467 to conclude that there was no defence to the claim. He therefore made a possession order.
19. That order was set aside on appeal by His Honour Judge Everall QC on 3 August 2006. The House of Lords had in the meantime delivered its judgments in Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465. A combination of three factors caused Judge Everall to allow the appeal:

"The unusual circumstances of this case raised by the letter of 2 June 2004, the procedural course followed when the claim was brought, and the fact that the House of Lords has now clarified the law between the first instance decision and this appeal".

20. As to the council's letter of 2 June 2004, he observed:

"It is seriously arguable that in the light of the assurances given in the first two paragraphs of the letter which I have set out above, the local authority has acted in a way which is an improper exercise of its powers which no reasonable person would consider justifiable."

21. The procedural history he described as "unfortunate". The council had brought its claim on the basis of nuisance and non-payment of rent. Non-payment of rent had been dropped at an early stage but the case had continued on the basis that the issues to be resolved were whether the appellant had behaved as alleged. Only at a late stage was that course abandoned. It had been submitted to him by counsel for the council that it was satisfied that the anti-social behaviour was continuing and it was therefore reasonable to seek a possession order, but he had no instructions as to the way in which the council had satisfied itself about that and what opportunity had been given to the appellant to make representations.
22. The judge considered that the proper course was for the appellant to file a defence setting out the defence on which he was seeking to rely following Kay. The council should have an opportunity to serve evidence in response to it. The matter should then go back to the district judge for reconsideration whether there was a seriously arguable public law defence. He described the circumstances of the case as exceptional but at the same time made it clear that he was not suggesting how the district judge should decide the case.
23. The judge's formal order allowed the appeal, remitted the case to District Judge Eynon for rehearing, gave directions for the service of a defence and further evidence, and allocated the case to the multi-track.
24. On 4 September 2006 the appellant served a defence and part 20 claim. The defence admitted service of the notice to quit and denied all the allegations of nuisance. It also asserted that the appellant had himself complained about nuisance and had had cause to contact the police concerning behaviour of groups of people who continually used the outside of the premises as a shortcut. His part 20 claim asserted as follows:

12. The Claimant/Part 20 Defendant (The Council) served a Notice to Quit on Mr McGlynn without providing him with any opportunity to respond to the allegations made by a resident despite the lack of corroborative evidence.

13. The above mentioned Notice to Quit was served despite an apparent policy that:

"The Local Authority does not take action against a person's tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality" (letter from the Claimant/Part 20 Defendant dated 2 June 2004).

14. The Council, by a letter (as mentioned above) dated 2 June 2004 gave Mr McGlynn a legitimate expectation that the Council would not in fact seek possession if there were, in fact, no significant breach;

"If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested."

Additionally, that:

"Should the Council be required to apply for a Possession Hearing, Mr McGlynn will have the opportunity to offer a defence either personally or via a Solicitor to the Court."

15. Mr McGlynn contends that the Council could not have been satisfied that there had been a significant breach of the Tenancy Agreement, for the reasons set out above. The Council have acted unreasonably in seeking possession in the light of their promises/ assurances to Mr McGlynn who was entitled to rely on the same.

16. Mr McGlynn was given a legitimate expectation that his situation would be fully investigated prior to any possession order.

25. The appellant sought various forms of relief, including a requirement that the council should grant him a further tenancy of the premises with an option to him being re-housed in a smaller tenancy.
26. In response to the defence and part 20 claim, the council served an application to strike out the pleading supported by a witness statement by Mr Paul Stimson, the council's Principal Litigation Officer in charge of its litigation team. He gave details of the evidential material and the council's decision making process which led to the service of the notice to quit. He then turned to the terms of the council's letter of 2 June 2004, including particularly the passage indicating that the appellant's desire for a new tenancy would be considered only if the complaints stopped, and to the decision to bring possession proceedings, which he explained as follows:

"17. The complaints about anti-social behaviour did not stop and, therefore, possession proceedings were commenced on 14 April 2005…

18. The decisions to serve notice to quit and issue possession proceedings were taken because the Claimant, through its officers…, were satisfied that there were ongoing complaints on anti-social behaviour. Those decisions were taken many months ago…

19. The complaints of anti-social behaviour from the premises are ongoing. I will not go into detail at this stage because those allegations are not relevant to this application."

27. The appellant's skeleton argument for the renewed hearing before District Judge Eynon set out the factual history and referred extensively to observations made by Judge Everall in his judgment. It was submitted that the letter of 2 June 2004 gave the appellant legitimate expectations that he would have an opportunity to defend the allegations of nuisance and that the council would not seek to evict him unless he had in fact committed a significant breach of the terms of his tenancy; that it was not reasonable for the council to conclude that he had been guilty of such behaviour in circumstances where Mrs Clementson's evidence was challenged, there was no corroborating evidence and police investigations had not led to any evidence of use or supply of drugs at the premises; and that in all the circumstances it was an exceptional case in which the appellant had a seriously arguable point that the council's application for a possession order was an improper exercise of its powers.
28. On the hearing before the district judge, there was no challenge to the lawfulness of the notice to quit. The argument was whether the council had improperly exercised its powers in seeking a possession order, having regard in particular to its letter of 2 June 2004. The district judge quoted from the appellant's written submissions:

"It is submitted that this letter gave the defendant the legitimate expectation that he would have an opportunity to defend the allegations of nuisance and rent arrears at court, and, in addition, a legitimate expectation that if there had in fact been no breach, that no action would be taken."

29. As to the latter, he held that the only expectation which the appellant could legitimately derive from the letter was that, if there were no further complaints, he might be re-housed. As to the former, he said that "the defendant has had the opportunity in this case of presenting his defence to the court, it being unnecessary for the court to consider the acts of nuisance."
30. The judge accepted that article 8 of the ECHR was engaged, but he said that housing was a scarce resource and the way in which it was managed was for the local authority. It was not for the court to interfere with their opinions as to what accommodation should be made available.
31. He concluded that the public law defence put forward by the appellant was not seriously arguable and so he made a summary order for possession. Permission to appeal against his judgment was given by Mummery LJ.

The law

32. It is common ground between the parties that the principles for deciding whether the council's decision to seek a possession order was open to a public law challenge are those set out in Kay, as modified by Doherty, although those cases did not arise under the same statutory scheme as the present.
33. The effect of Doherty was recently considered by this court in Doran v Liverpool City Council [2009] EWCA Civ 146, para 48 and ff. It was held that the effect of Doherty is twofold. First, there is no formulaic or formulistic restriction of the factors which may be relied upon on by an occupier in support of an argument that the council's decision to serve a notice to quit, and seek a possession order, was one which no reasonable council would have taken. Secondly, the question whether the council's decision was one which no reasonable person would have made is be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention.

The appeal

34. At the outset Mr Luba QC applied for leave to amend the appellant's defence to plead that the service of the notice to quit had been unlawful. We refused leave because it was not a point which had been argued before the district judge and we did not consider that it was right in all the circumstances to allow the point to be raised at this stage. So the argument was confined to the question whether the decision of the council to seek a possession order in the manner that it did was unlawful, applying public law principles as they have been developed at common law.
35. There were four grounds of appeal. The first and last have not been argued. Ground two criticised the district judge's treatment of the council's letter dated 2 June 2004. Ground three was that he failed to give adequate reasons for finding that the appellant's case was not seriously arguable.
36. Mr Luba applied for leave to amend the grounds of appeal in two respects. First, he wished to argue that the district judge erred in law in that on the material before him he ought to have been satisfied that the appellant had established a seriously arguable case that the council's decisions to bring and/or pursue the proceedings for possession were unlawful; and secondly, that, if and insofar as he applied an approach consistent with the majority speeches in Kay, as explained in Doherty, the approach failed to provide the necessary procedural safeguards of the appellant's rights under article 8, and the approach was therefore incompatible with the Convention. Mr Luba added that the latter ground could only avail him if the case should reach the House of Lords, but he wished to raise the point in his present notice of appeal in order to preserve his position for the future.
37. Mr Findlay QC had no objection to the latter, but he objected to the first proposed amendment on the basis that it would potentially open up points which had not been argued below. Since it was not entirely clear to us to what extent those concerns were well-founded, we decided that the most expeditious course would be to hear Mr Luba's arguments on the substance of the matter, while preserving Mr Findlay's right to complain where he considered that the argument went beyond the scope of the original grounds.

The appellant's submissions

38. After the procedural skirmishing, Mr Luba presented his criticisms of the district judge's judgment succinctly.
39. His challenge was confined to a "gateway (b)" challenge, except for the point which he wished to preserve for argument in the House of Lords. He properly stressed that the principles of public law are not confined to Wednesbury unreasonableness. As a backdrop to his gateway (b) challenge, he also properly drew attention to the restricted nature of the procedural safeguards available to a person in the position of the appellant. In this respect the relevant legislative scheme was similar to that considered by the House of Lords in Kay and Doherty (and by the European Court of Human Rights in Connors [2004] HLR 52), and dissimilar to the amended version of the caravan legislation considered by the Court of Appeal in Smith v Evans [2007] EWCA Civ 318, [2008] 1 WLR 661, and Doran, under which the court had a statutory power to suspend a possession order on such terms as it considered reasonable. Under the legislation with which we are concerned in the present case, the maximum period of any suspension of a possession order is two weeks, save that in exceptional circumstances it may be suspended for up to six weeks (Housing Act 1980, s89).
40. Mr Luba submitted that the district judge erred in his approach to the letter of 2 June 2004.
41. The paragraph stating that if the council did not receive any further complaints of anti-social behaviour that could be linked to the appellant or his property, it would consider granting him a further non-secure tenancy, but that if the complaints continued it would continue legal action to obtain possession, had to be read in the context of the letter as a whole. In the letter the council declared that its policy was not to take action against a person's tenancy unless satisfied that there had been a significant breach that caused a nuisance or annoyance to other residents. It also suggested that the appellant would have an opportunity to challenge such a conclusion.
42. If the district judge had approached the letter in that way, and had looked at the evidence in that light, he should have concluded that the appellant had a seriously arguable case that the council could not properly have satisfied itself that the appellant had been guilty of a significant breach of the tenancy agreement by virtue of the fact that the council received further complaints. Other matters merited consideration. The appellant maintained that the complaints were uncorroborated, unsupported by police investigations and had ceased when the complainant was re-housed.
43. The council may have had good answers to those points. There may have been complaints from more than one person (as the council's letter dated 28 April 2004 suggested). The liaison between the council and the police may have led to a different picture from that presented by the appellant. There may have continued to be complaints after Mrs Clementson was re-housed. But the district judge had no way of knowing these matters on the evidence before him.
44. In his judgment allowing an appeal from the previous summary possession order, Judge Everall had observed that there was nothing to show

"the manner in which the local authority had satisfied themselves as to the anti-social behaviour which they suggested continued and in what way the local authority had afforded the appellant an opportunity to answer the suggestion that nuisance and anti-social behaviour had continued such that it justified bringing possession proceedings."

and continued:

"In my judgment, if the local authority had not given the appellant a reasonable opportunity to make representations to it before it made a decision that it was satisfied that there had been "a significant breach" causing nuisance or annoyance it would be seriously arguable that the local authority had improperly exercised their power to bring possession proceedings."

45. In giving directions for the filing of further evidence Judge Everall had expressed an expectation that:

"that evidence would go to why the local authority was satisfied that the nuisance or anti-social behaviour continued and how they had given the appellant an opportunity to make representations in respect of the alleged nuisance and anti-social behaviour."

46. However, on those matters the evidence filed by the council following the appeal before Judge Everall took things no further.
47. It was submitted that by taking an over narrow view of the purport of the letter dated 2 June 2004 the district judge sidestepped the questions raised by Judge Everall about how the council was satisfied that the alleged nuisance had continued. His decision that the appellant's public law defence was not seriously arguable was in the circumstances both wrong and inadequately reasoned.

The council's submissions

48. Mr Findlay submitted, correctly, that the relief claimed by the appellant in his part 20 notice was misconceived.
49. He submitted that a reasonable council was not required to conduct an investigation into the truth of the allegations of nuisance before deciding that it was appropriate to bring possession proceedings. To require an investigation into the merits of each allegation of nuisance would be to extend to tenants in the appellant's position the security of tenure that Parliament had chosen to exclude.
50. Mr Findlay supported the judge's approach to the letter of 2 June 2004. As to the reasonableness of the council's exercise of its powers, it had ample ground to believe that the appellant's occupation of the premises was a source of nuisance to neighbours. The appellant was given a clear warning by the letter of 2 June 2004. He did not take up the offer of an invitation to discuss matters with the council. The continuation of complaints gave ample ground on which a reasonable council might conclude that his occupation of the flat was a continuing cause of nuisance. The matters raised in the appellant's witness statements and defence gave no serious ground for contradicting that conclusion. If, before deciding to issue proceedings, the council had given the appellant an opportunity to comment on the allegations of nuisance which post-dated the notice to quit, his response would no doubt have been substantially the same as set out in his witness statements and defence. Faced with the continuing complaints of nuisance and the appellant's response to them, a decision to bring possession proceedings would have been within the range of measures properly open to a reasonable council.

Discussion and conclusion

51. This is an unusual case.
52. I do not think that significance attaches to the misconceived nature of the relief claimed in the appellant's part 20 claim. If the matters set out by him gave rise to a seriously arguable public law defence to the council's claim, it should be allowed to proceed.
53. I consider that the district judge took an over narrow view of the significance of the letter dated 2 June 2004. It contained a statement of policy that the council did not take action against a person's tenancy unless satisfied that there had been a significant breach causing a nuisance or annoyance to other residents in the locality. (I would not take that as an exclusive statement, because there might be other factors which would cause the council to terminate a particular tenancy, but rather as a statement relevant to the position of the appellant.)
54. In view of the lapse of time after service of the notice to quit and before the issue of possession proceedings, it seems to me seriously arguable that a reasonable council would not have issued those proceedings unless satisfied that there had been some significant further breach by the appellant.
55. In order to be satisfied about that, I do not consider that the council must have conducted the equivalent of a judicial investigation. However, the question is whether it is seriously arguable that the council did not do enough to satisfy itself that there had been some significant further breach.
56. On this point it does seem to me that Mr Stimson's statement is lacking in the information which might have been expected (and surprisingly so in the light of the observations made by Judge Everall). Unlike the decision to issue a notice to quit, we have no minutes of any panel which considered the matter. We know from Mr Stimson's statement that the decision to issue proceedings was made because there were ongoing complaints, but we do not know what further consideration was given to those complaints. We do not know, for example, whether it is correct that they all came from a single person and ceased when that person was re-housed. We do not know whether it was assumed that the possession proceedings would give the appellant an opportunity of answering them.
57. On the paucity of information available to the district judge about the council's decision-making process, I have come to the conclusion that he was wrong to conclude that the appellant's defence was not seriously arguable. Further information from the council might have made good that conclusion, but that would be speculation. I accept as well-founded the criticisms that he took an over narrow approach to the significance of the letter dated 2 June 2004 and that his reasons did not adequately justify his conclusion.
58. In those circumstances, it seems to me that the first of the amendments to the notice of appeal sought by Mr Luba is unnecessary and that the second does not arise (since it is premised on the district judge having correctly followed the approach required by Kay/Doherty), but I would consider any further submissions by counsel on either point.
59. I would allow the appeal.

Lord Justice Aikens:

60. I agree.

Lord Justice Sullivan:

61. I also agree.