England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR JUSTICE KING

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th April 2010

Lord Justice Patten:

1. This is an application for permission to bring a second appeal against a possession order made by HHJ Copley in the Willesden County Court on 14 May 2008. We therefore have to be satisfied that the appeal would raise an important point of principle or practice or that there is some other compelling reason for this court to hear it.
2. The Appellant is an Irish traveller who lives with her four children in a caravan on pitch 32 at Lynton Close, Great Central Way, London NW10. This is a gypsy and travellers' site owned by the respondent, the London Borough of Brent. The Appellant has occupied pitch 32 since about January 2007. Prior to that date she lived with other members of her family on pitch 1 in a caravan belonging to her mother. She was on the Council's waiting list for another pitch, but in January 2007 her sister and brother in law vacated their caravan on pitch 32 and the Appellant and her children simply moved into it without first seeking the Council's permission to do so.
3. Thereafter she remained in occupation without the Council's licence or consent despite being informed by letter in April 2007 that she would be required to vacate. It seems to be common ground that the trespass was tolerated for a period from October 2007 following the birth of the Appellant's fourth child, but in a letter dated 10 October she was informed by the Council that pitch 32 was required for use as a site office and that after a three-month period she would be liable to be evicted. Accordingly on 7 April 2008 she received a further letter from the Council telling her that her trespass would no longer be tolerated after 25 April. In this letter the Council said:

"It is now well over three months since the birth of your baby … born on 23.10.07. The Council no longer tolerates your occupation of Pitch 32 … and this must end by Friday 25^th April 2008. You are in fact occupying a pitch which was designed solely for office accommodation and you have moved onto the pitch without our consent. Brent Council require full possession of Pitch 32 in order to extend the current office accommodation situated on that site which is too small to cater for the number of staff required to manage this site."

4. In November 2007 the Appellant had been offered an alternative pitch on the site but had declined it. The evidence before the judge was that this was in a part of the site that was occupied by families who were apparently hostile to the Appellant's own family and for these reasons she was unwilling to move.
5. On 1 May 2008 the possession proceedings were issued and two weeks later the hearing took place. Possession was sought on the basis that the Appellant was a trespasser without any security of tenure. In her defence she said that she had an as yet undetermined homelessness application made in April 2008 and that the Council as a public authority was obliged to act compatibly with her Article 8 and Article 14 rights as well as in conformity with its duties under the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Children's Act 1989. It was also required to have regard to the guidance on the management of unauthorised encampments contained in the Department of the Environment circular 18 94. In these circumstances its decision to seek possession of pitch 32 was, the Appellant contended, Wednesbury unreasonable because she would be forced to move from the site occupied by her family and where she had lived virtually all her life and there would be inevitable disruption to the education and healthcare of her children, two of whom have special educational needs.
6. By contrast, the Council's only requirement for pitch 32 was an administrative one. As a separate ground of challenge to the decision it was also pleaded in paragraph 25 of the defence that the Council had failed to take all reasonable steps to find an alternative site for the Appellant and had failed to have regard to all relevant matters including its duties and responsibilities under the Race Relations Act and Disability Discrimination legislation.
7. At the hearing HHJ Copley had a discretion under CPR 55.8 either to decide the case or to give case management directions. The latter option is appropriate where, in the words of CPR 55.8(2), the claim is disputed on grounds which appear to be substantial. But it is for the judge to decide whether further directions about disclosure or evidence are necessary in order properly to try the issues which have been raised. HHJ Copley was referred by Mr Willers to what is commonly referred to as the Gateway B type of challenge to local authority possession proceedings outlined in the speech of Lord Hope in Kay & Ors v Lambeth London Borough Council [2004] 1 AC 983. In Kay, the House of Lords, by a majority, rejected the possibility of the direct application of Article 8 ("the issue") and a full-blown proportionality review of the kind that was contemplated by Lord Steyne in the case of R v SSHD [2001] 2 AC 532. Instead, in cases such as this one where the right to recover possession is unqualified, the County Court should, they held, deal with possession cases on a summary basis, unless it is seriously arguable that the law enabling the possession order to be made is itself incompatible with Article 8 or the local authority is seeking to exercise its power to obtain possession in a way which no reasonable person would consider to be justifiable. This is a slightly modified version of the Wednesbury test and in this case the judge was concerned with a challenge of this latter kind.
8. Since then the approach outlined in Kay has been confirmed by the decision of the House of Lords in Doherty v Birmingham City Council [2008] UKHL 57 which was also concerned with the eviction of gypsies from a local authority site.
9. HHJ Copley accepted a submission from the Council that the Appellant had not proved that in deciding to take possession proceedings it had failed properly to take into account the possibility of alternative site provision and the other statutory responsibilities referred to in paragraph 20 I of the defence. There was nothing in the witness statement or other evidence to indicate that the decision was necessarily flawed for these reasons and the case should not, he held, be adjourned to conduct what was, as he described it, a fishing expedition. There was therefore no answer to the claim for possession and it would be for the Council now to consider the Appellant's outstanding homelessness application having regard to its duties to her as a homeless person.
10. There was then an appeal to the High Court in which judgment was handed by King J on 10 July last year. In a careful judgment which deals with all the points raised, the judge summarised the effect of Kay and Doherty and rejected the possibility of a direct Article 8 proportionality review. In paragraphs 39 to 40 of his judgment, he said:

"39. It remains the law in my judgment that ordinarily, absent any statutory obligation to do so, a landowner, even if a local authority, does not have to justify his decision to seek possession in exercise of his property rights and does not have to give any reason for seeking possession, let alone make good such reason.

The seriously arguable test

40. Hence, just as importantly for present purposes as the test of lawfulness to be applied if the decision under challenge is in fact put under the requisite scrutiny of the equivalent of a judicial review, sight must not be lost of the principle established in Kay that the county court Judge will not reach the stage of a trial of the issue raised by the pleading of a "gateway (b) defence" unless he has first decided that the defendant has a seriously arguable case to be tried. In many ways Judge Copley when considering how to proceed under CPR 55.8 was in a similar position of the single Judge in the Administrative Court in having to decide whether permission should be granted to apply for judicial review, save the test is whether the ground is seriously arguable, not for example merely capable of argument."

11. King J also referred to the fact that in Kay all members of the House emphasise that the decision whether the defendant has a seriously arguable case is to be determined summarily on the basis of an affidavit from the defendant or his or her defence in the proceedings and not in what Lord Bingham referred in paragraph 39 of his speech to as a full-blown trial.
12. On this application it is not contended that the Appellant's personal circumstances, such as her family ties to the site and the position of her children, were in themselves so exceptional as to make the decision to seek possession one which no reasonable person would consider justifiable. It is also accepted that this court is bound by the decisions in Kay and Doherty to reject a full-blown proportionality review under Article 8. Permission for a second appeal is sought on the ground that both HHJ Copley and King J were wrong in their approach to the question raised in paragraph 20 I of the defence as to whether the Council had failed to take into account all relevant matters. There is of course an issue as to whether many of the matters referred to in that paragraph of the defence, such, for example, as the duties prescribed under the legislation referred to, were in fact engaged or material to the decision to seek possession in this particular case, but King J proceeded on the assumption that they were arguably relevant and I propose to do likewise.
13. He dealt with the point of principle in paragraph 64 of his judgment, saying that:

"… for a case to begin to be seriously [my emphasis] arguable there has to be some compelling material before the court to suggest that the relevant duties were not complied with or the relevant considerations ignored or not properly regarded. Absent, as is conceded to be the position here, any evidence directly suggesting this to be the case, there has to be something in my judgment identifiable in the known circumstances of the decision to terminate the licence and to seek possession which appears to be incompatible with the relevant duties and or factors. The defendant cannot in my judgment make out substantial grounds for disputing the claim on public law grounds, by simply without more pleading matters which accurately ought to have been taken into account or duties which ought to have been complied with by the Respondent local authority. I agree with the judge that the burden is on the defendant to demonstrate a seriously arguable case, and a seriously arguable case cannot be made out simply by assertion of potentially material failures."

14. An example of a case in which the inference of incompatibility referred to by King J could be made out simply upon examination of the decision compared with the Council's prior statement of policy is contained in the decision of this court in McGlynn v West Hatfield District Council [2009] EWCA Civ 825 which Mr Willers has referred us to where the Council's stated policy was that there would be no attempt to obtain possession from the Appellant unless there had been a further significant breach or breaches of his tenancy agreement. When the Council came to claim possession the tenant was able to turn round and confront them with the contention that there had been no such further breaches of the agreement by him and therefore, on the basis of that simple analysis, that the decision which had been taken was arguably unlawful.
15. But in this particular case the argument put forward on behalf of the Appellant is a much broader one. What is said is that the Council is under a positive duty not merely to state the reasons for the decision which it has arrived at which, of course, it has done in the letter that I have quoted earlier in this judgment, but also to state specifically whether it has or has not -- and if it has to what extent it has -- taken into account the matters raised by the occupier as arguably relevant to a decision to seek possession.
16. Mr Willers submits that the approach taken by King J to the CPR 55.8 test is procedurally unfair because, absent disclosure, it will always be difficult to discover whether all relevant considerations were taken into account. He accepts that those advising his client do not in fact know, absent such disclosure, what considerations the Council did or did not take into account in reaching the decision which it made, albeit that its reasons for that decision have been stated in correspondence. He accepts that paragraph 20(i) of his client's defence is really no more than a list of the matters which ought, he submits, to have been considered. HHJ Copley should therefore, he submits, have ordered the Council to disclose what factors it did take into account, or should at the very least have permitted cross-examination of the Council's officers about these matters. Had this been an application for judicial review in the High Court his client, he says, could have requested a fuller explanation of the decision at the preaction stage under the terms of the preaction protocol whereas, on the approach taken by King J in relation to CPR 55.8, this opportunity is denied in the context of County Court possession proceedings.
17. It seems to me that, if Mr Willers is right in relation to the breadth of his submissions on this application, it would lead inevitably in all cases to extended possession proceedings rather than the summary process envisaged by Lord Bingham and the other members of the House of Lords in Kay. The local authority, as I have explained, has in this case given its reasons for seeking possession. It is under no statutory obligation, unlike in some cases falling within the provisions of the Housing Act, to explain whether it has taken into account specific matters such as those relied on by the Appellant in her pleaded defence.
18. It is accepted by Mr Willers that the decision which the local authority reached in this case is not, of its very nature, inconsistent with it having taken into account the various matters which are pleaded in paragraph 9(i). It is, of course, for that reason that the allegation of unlawfulness cannot be raised in the way that King J indicated would be possible and in the way that it was raised in cases such as McGlynn.
19. Therefore for the Appellant to succeed on an appeal, were we to give permission for such an appeal, it would be necessary for this court to find that the Council was under a common law duty of the kind which Mr Willers contends for, namely not merely to state the reasons for its decision but also, insofar as necessary, whether or not it had taken various specific matters into account, many of which, in its own view, may well have been irrelevant to the decision which it came to make.
20. I have reached the decision that, on the basis of the law as it stands, the Council was entitled to stand by the decision which it made and that it was for the Appellant to make out a credible case for saying that the decision was flawed. The analogy with the preaction protocol in judicial review proceedings does not assist because that does no more than to give the decision-making authority the opportunity to expand upon its reasons for the decision under challenge and so possibly avoid the need for litigation.
21. Although the application and the potential appeal is directed by Mr Willers to the test to be applied under CPR 55.8, it is in fact the state of the law in relation to the scope of the Council's duty to give reasons rather than anything in CPR 55.8 itself which causes the Appellant the difficulties which she faces in this case. Clearly, had the law been different from that stated by King J and applied by the county court judge, then HHJ Copley would have been bound to have given case management directions.
22. I take the view that there is no realistic possibility of this court holding that there was a duty on the Council at common law to justify its decision in the way that is contended for and the appeal would not therefore, in my view, have any real prospect of success.
23. For those reasons, I would dismiss the application.

Sir Simon Tuckey:

24. I agree.

Order: Application refused