England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
HHJ MACKIE Q.C.
CO/13567/2009

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2011

Sir Mark Potter:

INTRODUCTION

1. This is an appeal from an order of HH Judge Mackie Q.C. sitting as a Deputy High Court Judge in the Administrative Court. On 19 November 2010, following an oral hearing, he refused the appellant's applications for (i) permission to apply for judicial review of a compulsory purchase order (CPO) made by the first respondent, the Secretary of State for Communities and Local Government, and published on 30 October 2009 and (ii) an adjournment and temporary stay of the proceedings. Permission to appeal was granted on 9 May 2011 by Toulson L.J. following an oral hearing of the appellant's application to this court.
2. The situation is an unusual one. This is because the appellant recognises in his Grounds of Appeal that, in mounting his challenge to the CPO, judicial review was not the correct procedure. He thus takes "no substantive issue" with the judge's refusal of permission in that respect. However, he seeks to keep the judicial review application alive as the basis of his challenge to the judge's refusal to adjourn the proceedings for the purpose of "converting" them into an application under Section 23 of the Acquisition of Land Act 1981 ("the 1981 Act").
3. The judge refused the application for an adjournment on the basis that it was clear (as was conceded) that the application for judicial review revealed no valid grounds for an application under Section 23 of the 1981 Act and the relevant limitation period for the making of a valid Section 23 application was 6 weeks from the date of publication of the CPO. That period had expired almost a year earlier on 11 December 2009. The judge went on to hold that, even if a Section 23 application had been made within time, it would have been wrong to adjourn it because the prospects of success on the 3 indicative grounds of challenge were "very low indeed".

THE FACTUAL BACKGROUND

4. The appellant was, until 15 February 2010, the owner of land at 45, Sudlow Road, London, SW18 1HP ("the property"), having purchased it on 4 June 1975. The property is a two-storey mid-terrace house in Wandsworth within the area of the Second Respondent ("The Council"). The title to the property vested in the Council on 15 February 2010 under a General Vesting Declaration executed on 14 January 2010 pursuant to the CPO. Notwithstanding that he no longer owns the property, the appellant has continued to occupy it intermittently.
5. Since 2004, the Council has sought to compel the Owner to occupy and renovate the property".. The Council made efforts to encourage the appellant to put it into an acceptable state, including the service of a succession of formal notices relating to its highly dilapidated and defective condition and the existence of various hazards including rat infestation. In November 2006 it was identified as containing 14 Category One hazards assessed under the Housing Health and Safety Rating System.
6. On 26 June 2007, the appellant sustained a head injury as a consequence of being assaulted.
7. On 23 September 2007, the Council made a CPO in respect of the property under Section 17 of the Housing Act 1985. The appellant objected to the making of the CPO and an inquiry was scheduled to hear his objection. The inquiry was originally scheduled to take place on 22 April 2008. However, following the submission on the appellant's behalf of medical evidence indicating that he was still not medically fit to attend the inquiry, it was postponed until 11 September 2008, only to be postponed again on two subsequent occasions. It finally took place on 8 April 2009 before an Inspector, Mr Ogier. The appellant was present and was assisted by Mr Claude Rapose (a layman who also appeared on his own behalf) and, at times, his brother, Mr Tariq Akhtar, who was a solicitor. The inquiry lasted 5 days.
8. The following is a broad summary of the cases of the Council and the appellant as advanced at the inquiry and the findings of the Inspector relevant to this appeal as set out in his Report.
9. The general case for the Council was based upon housing need in the area; continuing growth in demand; the poor condition of the property; its detrimental visual impact upon the residents of an otherwise well-maintained terrace; and the failure of the appellant over some years to put the property into repair in response to Council notices. It was also the Council's case that the property appeared unoccupied; however it was stated that the Council was prepared to consider the housing needs of the Appellant if the CPO was confirmed. The Council proposed to sell the property on the open market with a condition of renovation and return to use within twelve months.
10. The appellant's case was that he did indeed live in the property (albeit its windows had been boarded up), that despite his absence of personal means and his previous failures to effect repairs, he proposed with financial help from his brother to undertake an improvement scheme to the property. If the CPO was confirmed, his compensation would not be sufficient to enable him to buy another flat and he would be made homeless and dependent on the state.
11. In submissions made on his behalf by Mr Tariq Akhtar, the appellant contended that the making of the CPO interfered with his Article 8 rights in respect of his private and family life and paragraph 51 of the Report records this submission:

"51. Convention Rights are not absolute and can be interfered with if a clear public interest case is made out and the action is proportionate. In this case the public interest case is not made out and the action is not proportionate. The Appellant has taken steps to improve the property and occupies the property."

12. The Inspector concluded inter alia:

(1) There was a substantial housing need in the area and the Council was justified in seeking to bring back into use vacant and/or defective properties.

(2) The property had serious and widespread defects which clearly rendered it unsuitable for the needs of the appellant who was a registered disabled person or, indeed, for anyone else.

(3) The appellant had used the property in the past to "sleep over" on many occasions and was currently using a few rooms "as a base including a place to sleep".

(4) That if no concerted and comprehensive action were taken to restore the house it would deteriorate yet further, increasing the potential for adverse effects on the adjoining properties.

(5) The Council's proposals would provide an assurance that the property would be restored to beneficial housing use within a reasonable and identifiable period.

(6) A proposal of the appellant, produced for the first time at the inquiry, for conversion of the property into two flats, of which the appellant could occupy the ground floor, would have to be funded by other parties or agencies, the appellant having no personal funds to support the scheme.

(7) It was doubtful that the proposals were acceptable in planning terms.

(8) Various funding proposals mooted had not been applied for and were in any event unlikely to be available in any reasonable timescale.

(9) There was a real risk that the scheme proposed by the appellant could not be progressed, or progressed expeditiously, because of the uncertainties as to planning and funding.

13. Besides certain earlier references, the Inspector set out towards the end of his Report a section dealing with the appellant's human rights as a consideration in relation to his findings. Having dealt with Article 6 (see further below) he turned to Article 8 and Article 1 of the First Protocol before stating his overall conclusions on the Order. The relevant passages read as follows:

Article 8

78. On balance, it is reasonable to conclude that confirmation of the Order would affect the Appellant's right to private and family life. He has possessions at the Order property and it is the only place identified in the evidence that he could call "home", even if he is making only a very limited use of the accommodation. The Council has confirmed that if implementation of the Order had the effect of making the Appellant homeless, it would be under a duty to consider his housing needs [15]. I find it inconceivable that under such circumstances, accommodation would not be offered to him suitable for his needs as a declared registered disabled person [38]. In these circumstances whilst the Appellant Article 8 rights would be engaged, the outcome would not be disproportionate and there would in my view be no violation of those rights.

Article 1 of the First Protocol

79. The Appellant has the right of peaceful enjoyment of his possessions. The evidence clearly indicates that in recent years he has made only a very limited use of the Order property, whether due to his own inaction or due to the actions of others [8-9, 20, 22, 24, 26, 32-36, 44-45, 49]. Whilst he can rightly claim that his traumatic injury affected his ability to take control of the situation he has found himself in [18, 20], that does not totally explain his failure to respond effectively to action the Council was seeking to take before it made the subject Order, although I recognise that the time period between the Section 11 notice and the making of the CPO was only a few months [8-10].

80. Mr Claude Rapose maintains that there is no element of the public interest that justifies taking away the Order property from the Appellant [41]. I disagree. Two aspects of the public interest are called into play, namely firstly the need to make full use of the Borough's housing stock in view of the level of housing need and the housing demand in the Borough, and secondly the key duty of the Council as a Housing Authority to take action to remedy Category One hazards that had been identified, of which the Order property has many [13]. I consider that these aspects of the public interest outweigh the Appellant's Article One, First Protocol rights.

81. The Appellant would be compensated in accordance with the compensation arrangements explained in paragraphs 64 and 65 of Circular O6/2004, or in default of agreement as to the amount, on reference to the Lands Tribunal. …

Overall Conclusions on the Order

82. I am satisfied that there is a compelling case in the public interest for the confirmation of the Order. The Order has been correctly made under section 17 of the Housing Act 1985. Implementation of the Order would lead to a quantitative and qualitative housing improvement, by restoring a dwelling which is at the best in very limited occupation for full residential use after restoration to a "Decent Homes" standard.

83. The Council's proposals for the Order property are much more likely to result in the restoration of the Order property and its full occupation as a dwelling house to a decent standard within a reasonable time period, than those of the Appellant. There appears to be no early prospect of the property being brought into full residential use other than by the implementation of the Order."

14. Following the hearing, the Inspector delivered his (undated) Report in which he recommended that the CPO be confirmed without modification and he set out the reasons for his decision as summarized above. The Secretary of State, by letter dated 23 September 2009, adopted the Inspector's reasons and accepted his recommendation. The CPO was accordingly published on 30 October 2009.
15. On 12 November 2009 the appellant commenced these judicial review proceedings, challenging the CPO.
16. Section 5 of the appellant's claim form setting out the Detailed Statement of Grounds contained a series of legal references and general propositions of law unrelated to the proceedings or procedure before the Inspector, save for an assertion at Ground 6 that "the Inspector and SOS Erred, SEE 7 to 9 in SECTION 7 BOX".
17. Section 6 of the claim form contained a number of allegations of fraud against the local authority and Secretary of State.
18. The paragraphs numbered 7 to 9 in Section 7 made generalised allegations against the local authority and Secretary of State, complaining of abuse of the appellant's human rights and breaches of the Data Protection Act 1998 which were again unrelated to the proceedings or procedure before the Inspector.
19. The draft order accompanying the application provided (1) that the CPO be quashed and (2) that the appellant be given "social and welfare assistance to help and assist with regard to his poor health and medical condition and disabilities..."
20. By a letter dated 25 November 2009, the Council informed the appellant that the proceedings had been incorrectly commenced as proceedings for judicial review and expressly indicated to the appellant that he had until 11 December 2009 to bring a properly formulated claim under Section 23 of the 1981 Act if he wished to challenge the CPO. Furthermore, in its Acknowledgement of Service dated 3 December 2009, the Council specifically pointed out the proper route of challenge, the limitation period under Section 23 and the statutory grounds on which such challenge might be made.
21. On 10 December 2009 the appellant wrote to Ms Karin Coombe of the Administrative Court Office in the following terms:

"I write to the court to make clear so that there is no misunderstanding that my 13 November 2009 CO/13567/2009 application made to the High Court is, as I am legally entitled under the [ALA] 1981 Section 23 (1), as I am aggrieved by the Compulsory Purchase decisions made by the SoS and LBW with regard to my home."

22. No grounds of challenge accompanied the letter. Nor was the letter served on either the Secretary of State or the Treasury Solicitor.
23. By his Acknowledgment of Service of the application for judicial review dated 11 December 2009, the Secretary of State adopted the stance of the Council in its earlier Acknowledgment of 3 December and invited the court of its own volition to strike out the challenge on the grounds that it was "hopeless frivolous and vexatious".
24. On 1 February 2010, Mr Justice Collins refused permission in the following terms:

"This claim is totally misconceived. The challenge to the CPO should have been made under s. 23 of the Acquisition of Land Act. Wild allegations of fraud unsupported by any evidence are an abuse of the Court's process. The claimant will receive compensation and the council will through its social services be obliged to provide any necessary assistance to which the claimant may be entitled (if any) having regard to his disability. Mr Rapose has no interest in this claim which the court recognises and correspondence from him is to be ignored."

It is not clear whether or not Mr Justice Collins had the letter of 10 December 2010 before him at the time of such refusal.

25. The appellant lodged his notice of renewed application in the judicial review proceedings on 5 February 2010. On 14 June 2010 he lodged a further application notice in the proceedings which simply reiterated the text of the earlier challenge and added a challenge to the General Vesting Declaration which had by then been executed on 14 January 2010 and which had resulted in the title of the property vesting with the Council on 15 February 2010. On 3 March 2010, the Council registered the title to the property.
26. The appellant first saw Messrs Irwin Mitchell, the solicitors now acting for him, on 20 August 2010. On 23 September 2010, legal funding was granted to the appellant under devolved powers and medical evidence was commissioned in relation to his mental capacity. Evidence was provided to the appellant's solicitors on 5 October 2010 in the short form of a "Certificate as to Capacity to Conduct Proceedings" from the appellant's general practitioner. The certificate related to the current proceedings and concluded that, as at September 2010, the appellant lacked litigation capacity in respect of them.
27. That certificate has since been superseded by a full report from a clinical psychologist Mr Van den Broeck dated 9 July 2011 which has been put before this court and which confirms the general practitioner's view. Mr Van den Broeck had seen the appellant in 2007 following his head injury, when he concluded that the appellant lacked the mental capacity to make a decision about whether or not it was safe for him to be discharged home. Although Mr Van Den Broeck was not at that time concerned with the question of the appellant's litigation capacity, he states in the report of 9 July 2011 now before the court that he thinks it "reasonable to conclude that [the appellant] probably would not have been able to make more complex decisions relating to the issue of litigation".
28. On 26 October 2010 the Official Solicitor consented to being appointed as the claimant's litigation friend in the proceedings.
29. On 27 October 2010 Irwin Mitchell wrote to the Secretary of State and to the Council inviting them to agree to the judicial review proceedings being treated as an application under Section 23 of the 1981 Act and to the proceedings being adjourned. On 2 November 2010 the Council responded, indicating that it declined so to consent.
30. On 12 November 2010 Irwin Mitchell issued an application for an order that the date fixed for the hearing of the appellant's renewed application for judicial review be vacated and for there to be a stay of proceedings for 3 months in order to enable, amongst other things, further investigations into the appellant's mental capacity to be carried out. The written grounds of application acknowledged that "as currently constituted, the proceedings are, as Collins J properly identified in refusing permission on 1 February 2010, totally misconceived".
31. In addition to an order for a stay, the draft order which the court was asked to make read as follows:

3. The Claimant is to notify the Court and the defendants in writing by no later than 19.2.11 as to whether he wishes to pursue these proceedings in a claim under s. 23 Acquisition of Land Act 1981. In the event that he does, he shall at the same time …. file and serve:

a. an application formally to convert these proceedings to a claim under that provision, and

b. proposed substituted grounds for that claim and written evidence in support of the claim.

32. The appellant relied upon the witness statement of Andrew Lockley dated 12 November 2010 as to the history of the matter and upon "draft indicative grounds" which it was said that the appellant proposed to advance when the judicial review proceedings had been so converted.
33. The grounds of challenge indicated were, and have since remained, that:

"(1) The Inspector and the Secretary of State failed to consider whether the Appellant had the relevant capacity to conduct the proceedings before him and whether he required the assistance of a litigation friend. The failures constituted a breach of natural justice and/or a breach of a relevant requirement within the meaning of Section 23 (2) of the ALA 1981 rendering the CPO invalid;

(2) the Inspector and/or the Secretary of State misdirected themselves in relation to the test to be applied under Article 8 of the ECHR thereby rendering the CPO invalid;

(3) The council and/or the Inspector and/or the Secretary of State failed to have regard to their duties under the Disability Discrimination Act 1995, in particular the need for a Disability Equality Assessment under Section 49A of the DDA. These failures were a breach of a relevant requirement within the meaning of Section 23 (2) of the ALA 1981 and meant that the CPO could neither be properly made or confirmed."

34. On 15 November 2010 the Council's solicitors wrote to the Court asking it to refuse the appellant's application for an adjournment for two reasons:

"(1) No valid application had been made within the 6 weeks statutory time limit and the court has no power to permit the applicant to raise any application now;

(2) Even if the court has powers to allow the applicant to amend his grounds, it should refuse to exercise the power as the draft grounds have no prospect of success."

35. On 16 November 2010, the Treasury Solicitor also wrote to the court opposing the appellant's application, setting out the grounds of such opposition and, in particular, relying upon the Court of Appeal's decision in Okolo v Secretary of State for the Environment [1997] 2 All ER 242.
36. On 19 November 2010 Judge Mackie Q.C. heard the appellant's applications and dismissed them.

The Legal Framework

37. Section 23 of the 1961 Act provides that:

"(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of the compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in Section 1 (1) of this Act he may make an application to the High Court.

(2) If any person aggrieved by –

(a) A compulsory purchase order, or

(b) A certificate under Part III of, or Schedule 3(2) to this Act,

desires to question the validity thereof on the grounds that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court.

(3) In sub-section (2) above "relevant requirement" means –

(a) any requirement of this Act or of any regulation under Section 7(2) above, or

(b) any requirement of the Tribunals and Inquiries Act 1992 or of any rules made, or having effect as if made, under that Act.

(4) An application to the High Court under this Section shall be made within 6 weeks –

(a) …

(b) in the case of a compulsory purchase order to which the said Act of 1945 does not apply, from the date on which notice of the confirmation or the making of the order is first published in accordance with this Act."

38. In relation to the 6-week statutory time limit provided for in Section 23 (4) it is well established, and not in dispute, that the time limit is absolute and the court cannot entertain an application to extend it: see Smith v East Elloe RDC [1956] AC 736 and R v Secretary of State for the Home Department, ex parte Ostler [1977] QB 122. This is so, even in a case where there is a material allegation of fraud.
39. A claim under Section 23 must be brought under the Part 8 process in the Civil Procedure Rules 1998 ("CPR"): see Practice Direction 8A, paragraph 9.1 and accompanying table. Paragraph 22 of PD 8A applies to Section 23 proceedings. Paragraph 22.3 provides that the claim form must be filed at the Administrative Court and served within the time indicated in the relevant enactment for making the application. By paragraph 22.8, the claimant must file and serve a witness statement within 14 days of filing the claim form. CPR 8.2 provides that the claim form must state (i) the question which the claimant wants the court to decide; or (ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy.
40. That means that, in the present case, the claim form should have been filed and served within 6 weeks of the publication of the confirmation of the CPO, namely 11 December 2009. The claim form should have set out the legal basis for the claim to quash the CPO and the appellant's witness statement in support should have been served by 25 December 2009. Neither requirement was complied with.

The Judgment

41. As already indicated, before HH Judge Mackie Q.C. it was common ground that the application for permission for judicial review was misconceived and should be refused. As the matter was put before the judge, it was not for permission then and there to amend the claim so that it became in form a Section 23 application, or to substitute proper grounds in support. Rather was it an application that the hearing be vacated and the proceedings for judicial review be stayed for a period of three months, in order to allow the appellant to obtain further medical evidence, for his solicitors to investigate the claim further, and for a decision to be made whether to apply to continue the proceedings as a Section 23 application on the basis of the indicative grounds or any amendment or addition thereto.
42. The judge refused the appellant's application for an adjournment and/or stay.
43. The relevant parts of the judgment read as follows:

"7 The question then is whether there should be an adjournment which the claimant seeks.

8 The first aspect of that is whether the claim should or can be permitted to continue as a Section 23 matter. It is possible in principle for an application for judicial review to be so converted. There is a strict 6-week time limit under Section 23 which is absolute and cannot be extended, there being well known public policy reasons behind that requirement.

9 Counsel for the first and second defendants say that the claim is simply out of time. It had to be made within 6 weeks. No proper claim had been made in the 6-week period. The letter which the claimant relies upon as being made in the 6 –week period was never more than a couple of lines. It did not give the grounds or substance of what the application was about. To the extent it was developed, it is common ground that those issues are hopeless and cannot succeed. They say that is the end of the matter.

44. Having referred to passages from the judgment of the Court of Appeal in Okolo (see further below), the judge continued:

"12. I draw from those observations the conclusion of the Court of Appeal that an application must be more than simply a document saying that it is an application.

13. It is argued on behalf of the claimant by reference to the statute that the way to approach it is to see an appeal under Section 23 as being like a Part 8 claim. The letter in November was the equivalent of a claim form. The matter comes forward, and if the defence do not like the form in which the proceedings are constituted it is for them to apply to strike out or for the claimant to seek to amend. If he seeks to amend, his amendments would be permitted provided of course he satisfies the usual requirements, including most obviously that of a real prospect of success.

14. It is not possible, or useful, for me on this application to try to define what is or is not an application in every case. Looking at the substance of what the court said in Okolo against a background where there is no provision for extensions of time, policy reasons for that and an obligation to put forward some sort of grounds for the application, it seems to me that the letter [dated 10 December 2010] cannot constitute a proper application and the case is doomed to failure for that reason.

15. The application is made in two or three lines. If one were to ask what was the basis for the application – what were the arguments behind it – the answer is those that accompanied the judicial review application. Those were completely hopeless. It seems to me not open to this court to treat as part of that application grounds now being put forward almost a year later which are acknowledged to be completely different and where the grounds for the original "application " were totally misconceived.

16. …

17. On those ground[s] alone the application which would follow if this request for an adjournment were granted is doomed to failure. For that reason it is going to cause uncertainty and unnecessary expense to prolong the matter further. One has on the one hand health concerns and difficulties faced by Mr Akhtar; one has on the other hand, in the evidence put forward by the London Borough of Wandsworth, the powerful reasons why it may not even be in Mr Akhtar's own interests for him to remain in this property, and the other reasons in the interests of community why the matter has to be regularised without delay."

45. The judge nonetheless turned to the draft grounds set out at paragraph 20 above in order to make clear to the appellant that, even if the application were to proceed further, the prospects of success were, as he put it, "very low indeed".
46. As to draft ground (1), the Judge said:

"18 The first of these is a contention that there had been a breach of natural justice in relation to proceedings before the inspector because of the Claimant's lack of capacity. That lack of capacity is not yet established. Mr Akhtar attended the proceedings and appears to have taken some part in it from what one sees in the inspector's report. But from what one sees in reading the inspector's report as a whole, the inspector conducted the inquiry appropriately and carefully, not only out of consideration for the Claimant in recognising the Claimant had health difficulties, but also, as it were, prodded by Mr Rapose who made a very large number of points, most of them bad but one or two arguably sound."

47. As to draft Ground (2), the Judge said:

"19 It is suggested next that the inspector misdirected himself about Article 8, but, looking at the passages at paragraph 78 where he dealt with the matter, it seems to me that that claim is an unpromising one given the public considerations which the inspector had to have regard to which arise on the particular facts of this case."

48. As to draft Ground (3) the Judge said:

"20 It is now established that the inspector and indeed the defendants do not have to articulate the duties under the Disability Discrimination Act in terms. It really does seem improbable – given the heart of the case which the inspector was reviewing – that the inspector did not have the Claimant's disability closely in mind. It is right at the start of the case."

Grounds of Appeal

49. The grounds of appeal may be summarized as follows:

(1) The appellant contends that the Judge erred in law in concluding that the court required a valid application to be made under Section 23 of the 1981 Act within the six week limitation period before it had the power to permit an amendment to it after the expiry of that period. It is said that the Judge erred in concluding that the decision of the Court of Appeal in Okolo and the earlier decision in Burton v The Secretary of State for Transport [1998] 2 EGLR 35 were binding authorities for the above conclusion.

50. It is contended that the Judge ought to have concluded that:

(1) The application for judicial review issued by the appellant within six weeks of the inspector's decision could and should have been treated as an application under Section 23 by virtue of the appellant's letter to the court dated 10 December 2009. The application and the letter should have been read together. So read, they amounted to something which was recognisably an application brought under Section 23, in that the documents made clear that the appellant sought (i) to challenge the validity of the CPO and (ii) an order that the CPO be quashed.

(2) The failure to supply any or proper grounds as the basis for such a challenge was simply a defect in procedure in the form of a failure to comply with the provisions of Part 54 of the CPR (so far as the judicial review application was concerned) and the requirements of Practice Direction 8A, and para 8.2 of the Part 8 procedure (in respect of the application under Section 23). Thus the letter constituted a 'live' application, made within the relevant six week period, in relation to which it was open to the court in accordance with the overriding objective to permit an amendment in order to demonstrate valid grounds for such application.

(3) In those circumstances the judicial review proceedings, now to be read as a claim under Section 23, should have been adjourned for the purposes of finalising the appellant's position and then deciding whether or not to apply to amend the judicial review application so as to pursue the indicative grounds placed before the court.

51. It is further submitted that, in considering the merits of the case it was wrong for the judge to conclude that the prospects of success of the draft indicative grounds were very low indeed. It is submitted that they were plainly arguable and of sufficient potential merit for it to be appropriate to adjourn the proceedings to allow the appellant finally to decide whether to pursue the proceedings on substituted grounds. As to the merits of those grounds it is submitted that (1) there was a plain failure on the part of the Inspector to consider whether the appellant had capacity to participate in the inquiry which amounted to a breach of natural justice and/or of Article 6; (2) the Inspector and the Secretary of State failed to apply the proportionality test propounded in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 in its full rigour when concluding that the interference of the CPO with the Appellant's Article 8 rights was proportionate; (3) that neither the inspector nor the Secretary of State carried out a proper analysis under Section 49A of the Disability Discrimination Act 1995 in relation to the disabilities of the Appellant when deciding whether to confirm the CPO.

The Respondents' case

52. It is the respondents' case that the Judge was right to refuse to adjourn the proceedings before him for the reasons which he gave. They submit that Okolo establishes that, for a Section 23 application to be treated as valid, it must give some indication of the statutory ground or grounds on which it is made or otherwise bear some indicia of being a valid application for the purpose of Section 23. In the event, the grounds set out in the appellant's judicial review application were conceded by the appellant to be totally misconceived, whether for the purposes of judicial review or as an application under Section 23. Thus, even if the letter of 10 December 2009 had the potential itself to be treated as a Section 23 application, the judge was right not to accept it as valid for that purpose, adding, as it did, nothing to the misconceived grounds previously advanced, save by way of a change of label. Any grounds being advanced for the first time thereafter would inevitably be out of time and thus doomed to failure.
53. Finally, the respondents submit that, even if the letter of 10 December was itself susceptible to treatment as an application under Section 23 within the statutory time limit, it would have been wrong for the judge to defer consideration of the matter for a further three months in the light of the public interest, the policy considerations involved, the expense and uncertainty created by prolonging already long delayed proceedings and the unlikely chances of success in establishing the three indicative grounds of challenge.

Discussion

54. As already pointed out, the appeal in this case involves a review of the judge's discretion in relation to whether or not to grant an adjournment and/or stay of judicial review proceedings which had, by the time they came before him, not only been the subject of substantial muddle and delay, but were expressly acknowledged to be misconceived. In order for the respondent to succeed upon such an appeal, it is necessary for him to establish that the judge made some error of law or principle, wrongly took into or left out of account a material consideration, or was plainly wrong in the conclusion which he reached. In my view the appellant fails in that task.
55. The grounds of appeal in the skeleton argument of the appellant contain the assertion that, in refusing the adjournment, the judge made the error[s] of law that (i) he had no power to "convert" the judicial review proceedings to an application under Section 23 of the 1981 Act; (ii) he had no power to permit an amendment to an application under Section 23 because no valid application to the court under that Section had been made within the limitation period.

The 'validity' of the Section 23 application

56. The first attribution of error was acknowledged by Mr Patel to be incorrect at the beginning of his oral argument, and rightly so in the light of the second sentence in paragraph 8 of the judgment (see paragraph 43 above).
57. The second allegation of error also seems to me a mis-characterisation of the reasoning process of the judge who was concerned to apply the observations of the Court of Appeal in Okolo, which in turn relied on the earlier Court of Appeal decision in Burton, as governing the proper approach to applications calculated to frustrate the statutory 6-week time limit contained in Section 23 (4) of the 1981 Act.
58. The case of Burton concerned a statutory challenge to three Road Improvement Orders under the Highways Act 1980 which provided similar grounds and procedure for challenge, as well as an identical six-week time limit, to those provided under Section 23 of the 1981 Act. The point raised was also a similar one in relation to a notice of motion which set out "particulars [which] provided no guidance whatsoever as to the nature of the complaint" (36D). Woolf LJ observed at 36G-H:

"Although I have referred to the notice of motion as containing grounds, in fact it provides no grounds whatsoever. Grounds of this sort do not comply with Order 94. Grounds should identify the actual point relied on in terms which enable the department to ascertain the case it has to meet and whether or not it has any merit. If it is not done, then the department should consider making an application to strike out the notice of motion. In considering any such application the court will, I hope, bear in mind that parliament has laid down a six-week time-limit for making the application to the High Court which the courts have no powers to extend – Schedule 2, para 2. Parliament has also indicated that such an application is the only means by which an order made by the Secretary of State can be challenged. The time-limit and the limited scope of appeal provided by the Schedule indicate that Parliament intended applications to the High Court to be dealt with expeditiously therefore the court should deal firmly with applications which are designed to frustrate that intention."

59. Purchas LJ, in agreeing with Woolf LJ observed as follows:

"It is clear that the provisions of the Highways Act 1980 are directed, in Section 10 of and Schedule 2 to that Act, to providing a remedy to which to be confined within strict limits. It savours, as Mann LJ has just commented, of the kind of relief which is envisaged by moving for judicial review within the provisions of RSC Ord 53, but providing within its own context the route by which a person aggrieved may, within a comparatively short period of 6 weeks, have recourse to the courts on the ground that any requirement of the Act, or of regulations made under the Act, has not been complied with by the Secretary of State responsible for the Order…

There must be an onus on those responsible for presenting the originating motion under Ord 94 to ensure that the requirements of Ord 8 r 3(2) are met."

60. In the case of Okolo, this court also considered a position similar to the instant case in many respects. The appellant applied for judicial review to quash the decision of the Secretary of State to confirm a CPO within the six-week limitation period. But, like the appellant in this case, he failed to set out any valid grounds for the application. On being informed that judicial review was not the correct procedure, he issued an application in the High Court by way of notice of motion pursuant to Section 23 of the 1981 Act. The principal point before the court was whether or not the notice of motion was issued within the six-week limitation period. The Judge at first instance ruled that it was, but the Court of Appeal reversed that decision. However, the court also considered the argument advanced by counsel for the appellant that the application for leave to move for judicial review should survive, arguing (as in this case) that the statute only provided for application to be made to the High Court without indicating in what form it was to be made. It was submitted for the appellant, that the need to set out proper grounds arose from RSC Order 53 (judicial review) or Order 8 (notices of motion) and reference was also made to Order 2 Rule 1 (1)-(3) under which the court may disregard irregularity in the commencement or course of proceedings.
61. In dealing with these submissions, Schiemann LJ referred to the passage in the judgment of Woolf LJ in Burton as quoted above and went on to observe:

"Mr Popat has constructed an interesting argument. I see no prospect of the original application for leave to move for judicial review getting leave in its present form. I can see every policy argument against granting any extension of time after this passage of time. It is accepted by Mr Litton [for the Secretary of State] that the mere failure to get a particular form right will not always lead to something always being out of time just because one needs to alter the heading on the form. That is a concession rightly made, but the present case does not come anywhere near providing a form which can sensibly be described as a proper application. I would, therefore, allow this appeal and strike out the notice of motion."

62. Swinton Thomas LJ agreed and stated:

"Mr Popat in his able submissions submits that the document of 24 June 1996 satisfies the provisions of s. 23 of the Acquisition of Land Act 1981. In my judgment, whether or not a document amounts a valid application is one of fact and degree to be resolved if in dispute by the court. The mere fact that something describes itself as an application does not automatically turn it into a valid application for the purposes of a particular legislation.

RSC Order 94 is headed "Application and Appeals to High Court under various acts: Queen's Bench Division Jurisdiction of High Court to quash certain orders, schemes etc" Rule 1(2) provides:

The application must be made by originating motion and, without prejudice to Order 8, rule 3(2) the notice of such motion must state the grounds of the application.

That rule and what was said by this court in Burton… the relevant parts of which have already been read by Schiemann LJ, are particularly relevant to this issue. In truth the document of 24 June gives no grounds entitling Mr Okolo to relief under s. 23 of the 1981 Act. Apart from calling itself an application it bears none of the indicia of a valid application. In my judgment, it is not a valid application for the purposes of s.23. If I should be wrong in coming to that conclusion, I agree that the application would fall to be struck out for the reasons given by Schiemann LJ as an abuse of process."

63. It seems clear that in Okolo Schiemann LJ read and applied the remarks of Woolf LJ in Burton, not as going to the construction of the 1981 Act, but as requiring a firm application of RSC Order 53 and Order 8, both of which required the grounds of complaint to be stated on any application under s. 23 (4), so that the statutory purpose of providing the strict time limit in such cases should not be frustrated. This being so, the question is whether or not an application can sensibly be described as a "proper" application depended not upon the heading or label which it bears, but upon the grounds of relief to be collected from it.
64. As to whether, in any given case, a form of claim may sensibly be described as a proper application for the purposes of Section 23, the judgment of Swinton-Thomas LJ makes clear that the matter is one of fact and degree and the mere fact that the application is so described is not definitive if it otherwise has none of the indicia of a valid application, which he equates with the failure to give any ground which would entitle the applicant to relief. The terms of the judgment are such that Swinton-Thomas LJ appears to have regarded such failure as a failure of compliance with the statute ("a valid application for the purposes of s. 23") rather than being simply a procedural non-compliance with Rules, which he described as relevant to, rather than definitive of, the validity of the application.
65. That is no doubt because the words of section 23 (2) limit the right to make an application to the High Court to a challenge on the ground of

a. Lack of empowerment to grant the CPO: Section 23 (1);

b. Failure to comply with a "relevant requirement" as defined in Section 23 (3).

Thus, if the claimant fails to identify, refer to or otherwise indicate any such ground in his application, the mere self-description or label that the application is made pursuant to s. 23 is inadequate in itself to render it to an application for the purposes of the 1981 Act.

66. I consider that to be the correct and purposeful interpretation of the requirements of Section 23, bearing in mind the policy considerations which under lie it. I would also adopt the observation of Swinton-Thomas LJ that, whether or not a document amounts to a valid application under Section 23 is one of fact and degree. However, even if that interpretation be wrong and the question is whether or not the claimant complied with the CPR, it is clear to me, (as it was clear to the court in Okolo in respect of the R.S.C.), that CPR 8.2 sets out clear requirements so far as the form of the application is concerned, and that the failure to comply with the requirement to identify any legal basis for the claim for which the applicant seeks a remedy should lead to a similar result, namely that the application/claim is invalid for the purposes of obtaining relief under Section 23. This renders it vulnerable to being struck out or dismissed, either on the application of the intended respondent, or of the court's own motion, the course suggested by the Secretary of State in his Acknowledgment of Service dated 11 December 2009.
67. In my view, when the judge stated at paragraph 14 of his Judgment that, looking at the substance of what was said in Okolo, the letter dated 10 December 2010 could not itself constitute a "proper" application, he was doing no more than stating that, whether the letter was analysed in terms of the statute or the rules, it did not constitute a valid application for the purposes of Section 23. Equally, when he stated in paragraph 15 of his judgment that it seemed to him "not open" to the court to treat as part of that application grounds now being put forward for the first time, he meant no more than that, given that such grounds were wholly new, it would be wrong in principle to permit them to be advanced by way of an amendment to the letter a year after the expiry of the six-week limitation period provided for in respect of such applications.
68. In both respects I consider that the judge was correct.
69. I now turn to consider the "merits" of the indicative grounds of application before the judge as a reason to adjourn the matter, and his view that, even if the matter were permitted to proceed, the prospects of success were very low indeed.

The "Merits" of the Indicative Grounds

Did the Inspector act in breach of natural justice and/or Article 6?

70. Mr Patel submits that, although the Inspector was aware of the appellant's 2007 injury and acknowledged the difficulties which he faced, he did not (as Mr Patel submits he should have done) consider whether the appellant lacked the necessary capacity to participate in the inquiry or whether the appellant required the services of the Official Solicitor as Litigation Friend thereby obtaining solicitors to act on his behalf, funded by the Legal Services Commission for the purposes of achieving "equality of arms".
71. In my view, this submission is a case of wisdom after the event in a situation where there is no reason to suppose that the Inspector was aware, or had reason to assume that the appellant might lack litigation capacity in relation to the matter before him.
72. I would make the preliminary observation that, even now, it is not clear on the basis of the medical reports relied on, that the appellant lacked such capacity at the relevant time: see the gravamen of the position as I have set it out at paragraph 27 above. More importantly, however, so far as concerns the charge of unfairness in the proceedings, there is no evidence before us, nor any reason to suppose, that the appellant exhibited behaviour or apparent lack of comprehension of a kind which ought to have raised doubts in the Inspector's mind as to his litigation capacity.
73. It is clear from the Inspector's Report that it was part of the Appellant's case that because of the trauma resulting from the attack on him in June 2007 he had poor short term memory. He was also unable to stand for long periods and had been medically advised that it would take five years before he made a full recovery from the attack. He also had poor eyesight as a result of diabetes.
74. However, it is also clear that, in presenting his case, he was assisted, albeit not formally represented, by his brother Mr Tariq Ali, a solicitor who had submitted the objection to the CPO on the appellant's behalf and who read out his written statement at the inquiry because of the appellant's poor eyesight. He also made submissions on the appellant's behalf as summarised at paragraphs 49-51 of the Report. It is not raised or suggested that either Mr Ali or Mr Rapose, an objector who made common cause with and also assisted the appellant, suggested any defect in understanding on the part of the appellant. Indeed it is clear that it was the appellant himself who gave oral evidence and cross-examined witnesses.
75. It appears from the Report that the appellant's evidence engaged with all the essential issues in the case, and that he put forward cogent reasons to rebut the Council's case that he did not live in the premises, his explanation being described by the Inspector as "plausible" (paragraph 61 of the Report).
76. At paragraphs 75 and 76 of the Report, the Inspector specifically considered the question of the appellant's Article 6 rights so far as the procedure before him was concerned and concluded as follows:

"76. There was no suggestion at the inquiry that the inquiry procedure itself was unfair. It was necessary for me to indicate to Mr Akhtar and Mr Claude Rapose that certain lines of questioning should not be pursued further or not dealt with in a repetitious manner. I am satisfied that there was adequate time for the Objector and his supporters to present their cases and to question the Council's witnesses on all relevant matters in the five sitting days of the inquiry.

77. There has therefore been no violation of Mr Ishaque Akhtar's Article 6 rights. …"

77. Neither Mr Patel in the course of his submissions before us, nor detailed perusal of the Report, suggest any absence of fairness in the procedures followed over the course of the inquiry or any lack of reasonable opportunity afforded to the appellant to engage with the issues or make out his case in proceedings which had been adjourned on more than one occasion to ensure that he had such opportunity. That being so, I conclude that the judge was right to discount the likelihood of any breach of natural justice or of Article 6 being established should the matter proceed.

Did the Inspector fail to apply the correct "proportionality" test?

78. 74. In R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 the House of Lords held that, in a case concerning interference with Article 8 rights, the question of proportionality requires the court to examine three distinct issues;

(i) whether the objective justifying the interference is sufficiently important to justify limiting the right;

(ii) whether the measures designed to meet the objective of the interference are rationally connected to it;

(iii) whether the means used to impair the Convention right are no more than is necessary to accomplish that objective.

To these there should be added the issue or element emphasised in Huang v. Secretary of State for the Home Department [2007] 2 AC 167 at paragraph 19:

(iv) whether the interference strikes a fair balance between the rights of the individual and the interests of the community, which require careful assessment of the severity and consequences of the interference.

79. The importance of the Daly requirements for the purposes of this case is that requirement (iii) imports the need to consider in Article 8 cases whether the means used to impair the Article 8 right are the least intrusive means to accomplish the objective, whereas the test for proportionality is less rigorous in relation to Article 1 of the First Protocol: c.f. R (on the application of Clays Lane Housing Cooperative Ltd) v. Housing Corporation [2004] EWCA Civ 1658, [2005] 1 WLR 2229 at paragraph 29 per Maurice Kay LJ:

"I conclude that the appropriate test of proportionality requires a balancing exercise and a decision which is justified on the basis of a compelling case in the public interest and as being reasonably necessary but not obligatorily the least intrusive of Convention rights."

80. It is submitted for the appellant that the Inspector, having acknowledged that the property the subject of the CPO was the appellant's home, and thus that his Article 8 rights were engaged, failed to apply (in its "full rigour", as Mr Patel puts it) the proportionality test propounded in Daly with particular regard to the least intrusive means contemplated by requirement (iii); instead, he proceeded directly to consider the question of proportionality on the broader and less specific basis of a fair balance struck between competing interests: see paragraphs 78-80 of the Report, quoted at paragraph 13 above.
81. In response, the respondents submit that the appropriate, or at any rate a sufficient, test in this case was indeed that of a fair balance to be struck between the public interest and the right or interest of the appellant as the party whose Article 8 rights were engaged by the making of the CPO. In this respect they rely upon a number of authorities in the planning field and in particular on Lough v. First Secretary of State [2004] EWCA Civ 905, [2004] 1 WLR 2557; the Clays Lane case quoted above; and R (on the application of Burnley DC) v. First Secretary of State [2006] EWHC 798 (Admin), a decision of Beatson J.
82. For the purposes of this appeal I do not think it necessary to resolve which formulation is correct (not least because of the relatively brief submissions of counsel on this topic) but rather to consider whether, assuming Mr Patel to be correct, the judge was nonetheless right to consider that, if the matter proceeded, the appellant had no realistic prospects of success in overturning the Inspector's decision.
83. In that respect, and with reference to the Daly requirements, Mr Patel has not sought to suggest (i) that the Council's objective in exercising its CPO powers for the purposes of providing housing accommodation were not sufficiently important to justify an order, provided a compelling case could be made out in the public interest or (ii) that the measures to meet the objective, namely acquisition of the property for the purposes of remedying the Category 1 hazards and achieving the repairs and refurbishment necessary to restore the property to full residential use, were not rationally connected with it.
84. So far as the "least intrusive means" consideration imported by Daly requirement (iii) is concerned, the question which arose for the Inspector's consideration was whether, by the time of the inquiry, there were substantial and/or practicable reasons to suppose that the necessary repairs and restoration of the property to full residential use which had been long outstanding could be achieved within any reasonable timescale if the order was not made. In that respect he considered the matter carefully and concluded that there were not, for reasons which I have already summarized at paragraph 12(1)-(9) above and which appear in the Inspector's Overall Conclusions at paragraphs 82-83 of his Report (see paragraph 13 above).
85. In my view, those reasons demonstrate that, whilst the Inspector did not refer to Daly or put any formal structure on his findings by reference to the requirements of that decision and/or the decision in Huang, in striking the fair balance between the public interest and the appellant's Article 8 rights, he fully considered the question of whether less intrusive means were available to accomplish the Council's objective and concluded it was not so.
86. As Lord Steyn made clear in Daly at paragraph 28, the intensity of review called for in a public law case depends on the subject matter in hand but, whatever that intensity, it does not amount to a full merits review. In this case the finding of the Inspector that less intrusive means than the making of the CPO were not practicably available if the Council's objective were to be achieved, was essentially fact-based as a result of the evidence which he had heard at great length and thus effectively unamenable to review.
87. For those reasons the judge was correct in his view as to the appellant's prospect of success if the adjournment sought by the appellant were granted.

Did the Inspector and/or the Secretary of State fail to consider the requirements of the Disability Discrimination Act 1995?

88. Section 49A of the 1995 Act provides as follows:

" 49A General duties

(1) Every public authority shall in carrying out its functions have due regard to –

(a) the need to eliminate discrimination that is unlawful under this Act;

(b) the need to eliminate harassment of disabled persons that is related to their disabilities;

(c) the need to promote equality of opportunity between disabled persons and other persons;

(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;

(e) the need to promote positive attitudes towards disabled persons;

(f) the need to encourage participation by disabled persons in public life."

89. In a context very different from this case, namely a challenge as to the general policy formed and the budgetary provision made in respect of persons with disabilities in the budget of the Birmingham City Council for 2011, Walker J usefully summarised in a series of propositions the effect of the extensive case law on the proper interpretation of Section 49A and the duty which it imposes on public authorities: see R (on the application of W) v. Birmingham City Council [2011] EWHC 1147 at paragraph 151.
90. The pertinent propositions relied on by Mr Patel for the purposes of this case are as follows:

To what decisions does the duty apply?

The duty applies to all decisions taken by public bodies, including policy decisions and decisions on individual cases;

The duty "complements" specific statutory schemes which may exist to benefit disabled people;

The disability equality duty is at its most important when decisions are taken which directly affect disabled people …

What does the duty entail?

vi. …

vii. "Due regard" means specific regard by way of conscious approach to the specified needs;

viii. Due regard requires analysis of the relevant material with the specific statutory considerations in mind;

ix. General awareness of the duty does not amount to the necessary due regard being a "substantial rigorous and open-minded approach";

x. …

xi. The duty (and in particular DDA 1995 s.49A (1) (d)) may require positive steps to be taken if the circumstances require it to address disadvantage to disabled people;

xii. …

xiii. Similarly, if a risk of adverse impact is identified, consideration must be given to measures to avoid that impact before fixing on a particular solution …"

91. Mr Patel submits that there is no indication that the Inspector and/or the Secretary of State (a) considered whether, in deciding whether to confirm the CPO, the Council had "due regard" to the need to treat the appellant more favourably on account of his disabilities or (b) took account of those disabilities in assessing whether there was an alternative to the CPO being made, or whether steps could be taken to assist the Appellant to overcome them so that he could advance an alternative plan. Mr Patel asserts that, once the Council had sought to come to an agreement with the appellant in the form of an undertaking to renovate the property and the appellant had been unable to comply, the Council should not have resorted to the making of the CPO, but should have adopted a "more nuanced approach". Once again, as it seems to me, Mr Patel's submission lacks substance in the circumstances of this case.
92. It is clear that the Inspector had well in mind throughout the state of the appellant's health and the fact that he was a registered disabled person. In this respect he had the benefit of a report from the Council's Occupational Therapy Service on the appellant's particular needs. At paragraph 58 of his Report, having referred to the "serious and widespread defects in the property" and the 14 Category One hazards identified by the Council, as well as his own observations on two inspections, the Inspector described the property as "clearly unsuitable for the needs of the objector [as] … a registered disabled person". He added that "They would also be unsuitable for any other person".
93. At paragraph 64 of the Report, the Inspector stated that the condition of the dwelling was likely to deteriorate further if no "concerted and comprehensive action" were taken to restore it. He went on to refer to the Appellant's self-confessed absence of means and to the unlikelihood of finding the finance necessary for the necessary renovations from any other source, so as to avoid the need for a CPO. In these circumstances it is difficult to see what "more nuanced" approach to the Appellant's needs as a disabled person was either practicable or appropriate, given the need for prompt attention to the premises' state of disrepair.
94. The only positive suggestion which Mr Patel has made in this regard is that the appellant should have been permitted to proceed with a proposal, presented for the first time in the course of the hearing (paragraph 66 of the Report), to convert the property into two flats, the appellant simply occupying the ground floor. This proposal was considered by the Inspector who found that the conversion scheme posed considerable construction and planning problems (paragraph 67 of the Report), lacked any clear or assured source of finance (paragraphs 69-72), and presented no early prospect of the property being brought into full residential use (paragraph 83).
95. It is to be noted that whereas Section 49A (1) (d) of the 1995 Act places a duty on local authorities to "have due regard to" the need to take steps to take account of the appellant's disabilities, even where that involves treating disabled persons more favourably than other persons, it does not impose any duty to take such steps where circumstances do not render such favourable treatment feasible or appropriate. It seems to me plain that the Inspector did indeed have regard to the appellant's disabilities in reaching his conclusions, but reasonably considered that favourable treatment of the type contemplated by Section 49A(1)(d) was neither feasible nor appropriate.
96. I would only add that, in advancing his argument, Mr Patel relied upon the fact that no specific reference to Section 49A(1)(d), let alone any step-by-step analysis by reference to its terms, appears in the Report of the Inspector or in the Secretary of State's subsequent decision letter which endorsed the Inspector's conclusions. That is indeed the case and it is in my view unfortunate. However, as made clear by Dyson LJ in R (Baker) v. Secretary of State for Communities and Local Government [2008] LGR 239 at paragraph 36, the fact that a public authority does not make specific reference to Section 49A (1) in carrying out a particular function to which its provisions apply is not determinative of whether the duty under the statute has been performed. It is nonetheless good practice for the decision maker to make such reference and to refer to any code or other non-statutory guidance in all cases where section 49A (1) is in play.

"In that way the decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced.": ibid at paragraph 38.

97. As I have indicated, however, it appears that the Inspector did take the relevant factors relating to the appellant's disabilities into account before reaching his conclusion. Accordingly, the judge was correct when he saw no substantial prospect of demonstrating that the Inspector or Secretary of State had failed to consider the requirements of S.49A (1).

Conclusion

98. For the reasons I have set out above, I do not think the judge erred in his conclusion that, were the matter to proceed further, the prospects of success would be very low indeed. In my view, on the material available to judge and this court, the indicative grounds advanced before the judge had no reasonable prospect of success.
99. I would dismiss this appeal.

Lord Justice Etherton: I agree.

Lord Justice Pill: I also agree.