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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khan & Anor, R (on the application of) v London Borough Of Newham [2000] EWHC Admin 334 (19 April 2000)
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Cite as: [2000] EWHC Admin 334
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LONDON BOROUGH OF NEWHAM EX PARTE RUKSANA KHAN and FARZANA HUSSAIN, R v. [2000] EWHC Admin 334 (19th April, 2000)



Case No: CO/0213/2000

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
WEDNESDAY 19 APRIL 2000
BE F O R E :
THE HON MR JUSTICE COLLINS
__________________________________

R

- V -



LONDON BOROUGH OF NEWHAM



EX PARTE RUKSANA KHAN & FARZANA HUSSAIN


__________________________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
__________________________________

MR JAN LUBA instructed by the Aina Khan Partnership for the Applicant
MR D MATTHIAS instructed by the Solictor to Newham Council for the Respondent
__________________________________


Judgment
As Approved by the Court
Crown Copyright ©


MR JUSTICE COLLINS:
1. The applicants are sisters. In October 1991 their mother, Mrs Inayat Begum, became tenant under an assured shorthold of a three bedroom house in Plaistow. The applicants lived with her. Each was married and had children. Unfortunately, one of Ruksana's daughters, Neelofar, suffers from learning difficulties and so needs special tuition. In addition, Mrs Begum is unwell, suffering from diabetes, loss of memory and some physical mobility problems. She requires attention because of her health problems and Farzana was in receipt of an invalid care allowance for taking care of her mother.
2. Housing benefit was claimed by Mrs Begum and, for the purposes of that benefit, the household was considered to comprise herself and each applicant, her husband and child or children. In April 1999 the owner of the premises served notice seeking possession. Since the owner required possession to enable her to live in the premises, possession had to be given. There was no defence. Possession proceedings were commenced in September 1999 and on 12 November 1999 an order of possession was granted by the judge at Bow County Court. This required Mrs Begum to give possession on 10 December 1999.
3. On 8 November 1999 Ruksana attended Plaistow South Housing Office to apply for housing assistance. She explained that possession proceedings were due to be heard shortly and told the officer who lived in the house. The officer advised her that she, her sister and her mother were each likely to be in priority need and that, if an application under the homelessness provisions were made on behalf of all, there would be a need for a 5 bedroom house and that would mean a very long wait since such premises were rarely available. If individual applications were made, the situation would be much easier since two or three bedroom properties were more readily available.
4. On 2 December 1999, following the making of the possession order, both applicants went to the Housing Office. They were interviewed. According to the housing officer, they elected to make separate applications and their mother was included on Ruksana's; this was, so the housing officer states, at their request. It is perhaps hardly surprising having regard to the advice that had been given to Ruksana on 8 November. The reality is that the family was placed in an impossible dilemma. If they decided to stick together, they would get no accommodation for a substantial period of time. If they wanted accommodation within a reasonable time, they would have to split up.
5. On 9 December 1999 each applicant attended for a further interview. The advice given, in accordance with the Council's policy, was that they should stay in the premises until the bailiff's enforced possession. When the notice was received giving the date on which the bailiffs would evict them, they should bring it to the Council who would ensure that their possessions were removed to storage so that no distraint could be levied. They should come to the Housing Office when evicted and the Council would then offer them whatever temporary accommodation was available.
6. I have before me the records of the interviews on 9 December. These show that Ruksana said in answer to the question `who do you occupy the property with?':-
"My Mum - Inayat Begum Khan.
My husband and our 2 daughters.
My sister - Farzana Akhtar
Her husband - Munir Hussain and
their daughter (12 months)"
7. In answer to the same question, Farzana is recorded as having said:-
"My husband and our baby
My sister - Roxana Akhtar
Her husband - Hera Khan
her daughters (4) and (11 months)
My mother - Inayat Begum Khan"
She also said that she had always lived with her mother and that she received an invalid care allowance for taking care of her mother.
8. The applicants followed the Council's advice and remained in the premises notwithstanding the court order. On 22 December 1999 a warrant was issued which gave notice that the bailiff would take possession if the premises were not vacated by 9 a.m. on 18 January 2000. On 11 January 2000 the applicants took the warrant to the housing officer and then said that they wanted all their families to be rehoused together. Their request was referred to a senior caseworker, Moses Nyanu. He has deposed that he considered the files and decided that there were two households. The one comprised Ruksana, her husband and children and mother; the other comprised Farzana and her husband and child. He says that neither applicant had asserted that their mother needed to live with both of them because she needed the care of each. Thus the request to be accommodated together was refused.
9. On 13 January 2000 the Council decided that Ruksana was homeless, was in priority need and was not intentionally homeless. Accordingly, the full housing duty was owed to her and the family (which included her mother) under s.193 of the Housing Act 1996 (the `1996 Act'). On 18 January 2000 the eviction took place and the applicants attended as directed at the housing office. They complain that they were on that and following days treated in a less than sympathetic fashion; this is denied by the Council. I do not need to make any findings on the rival contentions nor, in the absence of evidence, could I. Suffice it to say that all that was offered was bed and breakfast accommodation. The applicants were dissatisfied with this and managed to make their own arrangements for the night of 18 January. The next day all that was on offer was bed and breakfast in Great Yarmouth. This with good reason they regarded as wholly unsuitable. Following a letter from solicitors on 20 January, these proceedings were launched on 21 January and an interim order obtained from Sullivan, J requiring that the applicants be housed in the London area. Temporary arrangements were made but on 24 January 2000, as luck would have it, a 5 bedroom house became available in Ilford and since then the applicants and their mother have been living there.
10. However, the Council has continued to maintain that each applicant should be treated separately. Thus Farzana has been offered a 1 bed non-secure property which she has refused. The Council has regarded that refusal as unreasonable and has purported to delete any special priority awarded to her homeless status. This will prejudice her in her endeavours to obtain permanent accommodation.
11. What lies behind this case is the appalling problem faced by the Council in finding accommodation for those who are homeless. Its difficulties are compounded by the increasing numbers of asylum seekers who need to be accommodated while their applications are being considered. As Mr Williams, the Homeless Persons Unit manager for the Council has deposed, Newham is `labouring under an accommodation crisis of unparalleled proportions'. It is impossible to find even sufficient bed and breakfast accommodation, let alone other more desirable accommodation, in Greater London. The increase in house prices has made leased accommodation more difficult to find.
12. In order to try to deal with this almost intractable problem, the Council has had, as a last resort, to make use of bed and breakfast accommodation outside London. Each day the allocation officers are approached by dozens of homeless families all of whom have to be found some sort of temporary accommodation. The position is even worse for large families and so Mr Williams has said that it is impossible to `overemphasise the importance of sub-dividing extended families, by identifying within the extended family more than one family unit.... where it is reasonable and sensible to do so'. He points out that otherwise the waiting lists for four bedroom and larger premises would be even longer than they are at present. It is also obviously in the Council's interest to defer as long as possible the need to accommodate any family and so routinely advice is given to those threatened with homelessness to stay put until the last possible moment. It is said that applicants are `invariably happy with that arrangement', even though it involves awaiting the advent of the bailiffs, because the alternative is to take the chance of whatever temporary accommodation happens to be available. I am bound to say that Mr Williams is, as it seems to me, too easily persuaded that the applicants are content. The reality is that they have little choice. They are usually the most vulnerable and it is pertinent to bear in mind what is said in the Code of Guidance to which the Council is bound to have regard by virtue of s.182(1) of the 1996 Act. Paragraph 13.8(f) states that where there is no defence to possession proceedings the authority `may wish to start to process the application and make arrangements (if appropriate) to secure accommodation immediately'. And Paragraph 13.13 makes the point that an early referral to the homelessness advisory unit may help prevent homelessness and that `authorities will wish to avoid adding the stress of uncertainty to existing stresses and will wish therefore to keep applicants up to date with the arrangements that will be made to assist'.
13. Newham's policy, in particular the use of bed and breakfast accommodation far from London was challenged. The case R v L.B. of Newham ex p. Sacupima and others came before Dyson, J. On 26 November 1999 he decided that the use of such accommodation was lawful provided that proper consideration was given to the individual circumstances of each applicant and that the accommodation could properly be regarded as suitable for that applicant and his family. He also decided that once the date ordered by the court for possession to be given (in the instant case 10 December 1999) was reached, the applicants became homeless notwithstanding that they were advised to and did remain in occupation until the bailiffs evicted them.
14. Following this decision, on 13 December 1999 Mr Williams circulated a memorandum which I should set out in full. It reads:-
"I am issuing the following instructions as an interim measure pending a full procedure note, which I am drafting.
1. We are continuing to place at the coast. If you get anything in writing from a solicitor or legal advisor threatening action, or quoting our case (ex parte Sacupima et al) please inform me or Roberto immediately.
2. All cases with little or no connection with Newham (e.g. newly arrived asylum seekers, or with no kids at school or college, or no
medical issues requiring GP/hospital attendance, or no employment) should only be offered coastal B&B. We still must look at each case on its merits, and there will always be room for exceptional circumstances.
3 Private tenants waiting for Bailiffs warrants: the judge said we should house at Possession Order stage. The line we are taking on counsel's advice is that we enter a file note in the file to say that we have given advice and assistance that they should remain in the property. It is very important this is done.
A detailed note will follow, and we are devising a B&B transfer procedure. Any questions to me please."
15. Mr Williams has made a statement which seeks to explain what he meant in that memorandum, in particular paragraph 3. He had, he said, been advised by counsel that the duty to provide accommodation to a homeless applicant could be discharged by advising that applicant to remain in his or her existing accommodation (provided that it was suitable). It is unfortunate that there is no reference in paragraph 3 to the need to consider the suitability of the existing accommodation nor does Mr Williams appear to have had regard to the Code of Guidance which does not approve the approach he was suggesting. Furthermore, the applicant is generally in no better position than he would have been had he left the accommodation immediately. When the eviction takes place, he has to come to the Housing Office and take whatever happens to be available then since the Council do not take any steps to try to find interim accommodation until actual homelessness occurs.
16. I should before going further set out the relevant provisions of the 1996 Act which are contained in Part VII which is headed `Homelessness and threatened homelessness'. They are as follows:-
"175- Homelessness and threatened homelessness
(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he-
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable to continue to occupy.
(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.

176- Meaning of accommodation available for occupation
Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with-
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might be expected to reside with him.
References in this Part to securing that accommodation is available for a person's occupation shall be construed accordingly.
184- Inquiry into cases of homelessness or threatened homelessness
(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves-
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
188- Interim duty to accommodate in case of apparent priority need
(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) wed to him under the following provisions of this Part.
193- Duty to persons with priority need who are not homeless intentionally
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
This section has effect subject to section 197 (duty where other suitable accommodation available).
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section for a period of two years (`the minimum period'), subject to the following provisions of this section.
After the end of that period the authority my continue to secure that accommodation is available for occupation by the applicant, but are not obliged to do so (see section 194).
195- Duties in case of threatened homelessness
(1) This section applies where the local housing authority are satisfied that an applicant is threatened with homelessness and is eligible for assistance.
(2) If the authority-
(a) are satisfied that he has a priority need, and
(b are not satisfied that he became threatened with homelessness intentionally,
they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation.
This subsection has effect to section 197 (duty where other suitable accommodation available).
206- Discharge of functions by local housing aauthorities
(1) A local housing authority may discharge their hosing functions under this Part only in the following ways-
(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.
17. The system set up by the Act is designed to cater for hose who are homeless and those who are threatened with homelessness. In each case, s.184 requires an investigation into what duty is owed and that involves deciding whether the applicant is in priority need (as the applicants and their mother clearly are) and whether he is homeless or threatened with homelessness intentionally. If the applicant is homeless, there is an interim duty under s.188 to secure that accommodation is available while the necessary inquiries are made. If he is threatened with homelessness, that duty does not arise since he will, until he becomes homeless, be in accommodation. Mr Luba has submitted that Parliament chose the period of 28 days in s.175(4) because that was the time that a court would normally give when making a possession order. It was envisaged that the tenant would take the order to the local authority who would have time to make the necessary s.184 enquiries and then take steps pursuant to s.195(2) to avoid the applicant and his family becoming homeless. That may well be correct, but sadly the chronic shortage of accommodation and the huge increases in homelessness has placed such pressure on authorities such as Newham that it is impossible to achieve those goals. Parliament has imposed the duties but the authorities do not have the resources to fulfil them. Nevertheless, I must apply the law Parliament has enacted however hard that may be for the authority in question.
18. When the applicants approached he Council on 2 December 1999, they were threatened with homelessness since it was likely that they would become homeless on 10 December 1999. Essential preliminary information was obtained to enable the s.184 inquiry to commence and they were told to return on 9 December 1999, the day before the possession order took effect. On that occasion they were advised to remain until the bailiff evicted them. Once they received the warrant, they should notify the Council and on the day they were evicted they should attend the council offices and the Council would secure alternative accommodation under either s.188 or a s.193 duty, if that had arisen.
19. In ex p. Sacupima Dyson, J had decided that the applicants were homeless within the meaning of s.175 after the date on which he court had ordered possession to be given. Thus the applicants were treated by Newham as homeless after 10 December 1999 and, since the s.184 inquiries had not been completed, they were owed the interim duty under s.188. Mr Matthias has submitted that Dyson, J's decision (which is under appeal) was wrong and that I should reconsider the point.
20. Dyson, J dealt with the issue succinctly. I should set out his reasoning in full.
"Mr Knafler submits that each of the three applicants whom he represents became homeless when the possession order took effect. In the case of Mrs Akhtar, this was on 24 June 1999. The view of the respondent was that she did not become homeless until 11 august when she was evicted by the bailiffs. Mr Knafler submits that the respondent was in breach of is duty to provide temporary accommodation under section 188 between 24 June 1999 and 11 August. His argument is that Mrs Akhtar was homeless as from 24 June, because from that date she had no accommodation which she occupied "by virtue of any enactment or rule of law ..... restricting the right of another person to recover possession". (Section 175(1)(c) of the 1996 Act).
Mr Matthias responds by pointing out that under section 9 of the Housing Act 1988, the court has the power, on making a possession order, to stay or suspend the execution of the order. Moreover, County Court Rules Order 26 Rule 17(1) provides that an order for recovery of land shall be enforceable by warrant of possession. The corresponding provision in the High Court is RSC Order 45 Rule 3(1). Mr Matthias submits that the effect is to restrict the right of a landlord to recover possession.
Mr Knafler's reply is simple. He submits that the rules of procedure for the enforcement for possession are not an "enactment" within the meaning of section 175(1)(c) of the 1996 Act. Both CCR Order 26 Rule 17(1) and RSC Order 45 Rule 3(1) are incorporated as part of the Civil Procedure Rules made under section 1 of the Civil Procedure Act 1997. It is clear from section 1 of the 1997 Act that the CPR are rules of procedure. They are not an "enactment".
I accept Mr Knafler's submissions. It follows that when a possession order takes effect, the duty to provide temporary accommodation under section 188 can arise."
I not only have I had the benefit of much more detailed argument but I have been referred thanks to Mr Luba to s.230 of the 1996 Act which, unfortunately, Dyson, J did not see. This so far as material, provides:-
""enactment" includes an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978)."
S. 21(1) of the Interpretation Act defines subordinate legislation to mean "Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act". The Civil Procedure Rules are therefore clearly `enactments' within the meaning of s.175(1)(c) of the 1996 Act. It follows that Dyson, J's reasoning cannot be sustained and I must therefore reconsider the issue on the basis that his decision was reached per incuriam.
21. Mr Luba has submitted that the words "by virtue of any enactment.... restricting the right of another person to recover possession" must be read as a whole. The Rules of Court are procedural only and do not interfere with the landlord's right to recover possession; that is achieved by the Housing Act 1988 s.5 which prevents a landlord from bringing an assured tenancy (which the applicant's mother had) to an end except by obtaining a court order. Thereafter the ex-tenant and anyone remaining in occupation under the umbrella of the former tenancy are trespassers and, unless the landlord consents to their remaining as what might be designated `tolerated trespassers', they have no right to be there and the landlord's right to recover possession exists.
22. The difficulty with the submission is, as it seems to me, that there are situations where occupiers will be trespassers because their tenancies have come to an end but are protected by the Protection from Eviction Act 1977. There is no doubt, and Mr Luba did not argue the contrary, that an occupier who has the protection of the 1977 Act is covered by s.175(1)(c) and so is not homeless until at least the court makes an order of possession. That was the position of the applicant in R v L.B. of Croydon ex p. Jarvis (1993) 26 HLR 194 which came before me in September 1993. The Council had advised her to remain in occupation notwithstanding she had no defence to possession proceedings and would incur the expenses because she would have to pay the landlord's costs of obtaining a court order. I was in that case pressed with a decision of Hodgson, J in R v Surrey Heath BC ex p. Li(1984) 16 HLR 79 where he had decided it was wrong for a council to advise a person to trespass. Mr Luba has raised a similar argument. I rejected it then and do so again. I hope I will be forgiven for citing my own words at p.209 of the report:-
"It seems to me it is wrong to describe the council's advice as being an advice to trespass. A person who has been a tenant under an assured shorthold tenancy cannot be evicted without a court order. He has that protection granted by Parliament and recognised by section 58(2)(c) thus providing him with accommodation which prevents him from being homeless. Accordingly, I do not think it is necessarily wrong for councils to assert that it is reasonable for such a person to continue to occupy until a court order is made. But it seems to me that, if they did so, they must recognise that that approach has been deprecated both by the Code of Guidance and by the observations of their Lordships to which I have referred in Din, and it does mean that a landlord is being put to expense, and so is the tenant or the ex-tenant. But, as I say, I do not myself think that it is proper to castigate it as being an advice to trespass in the light of the provisions of s.58(2)(c). In so far as and if it is necessary, I would respectfully disagree with the approach of Hodgson J in that regard in Li"
S.58(2)(c) is now s.175(1)(c). It is clear from that passage that I regarded her as being covered by what is now s.175(1)(c).
23. While there is no authority directly in point which deals with the period between the coming into effect of the possession order and the actual eviction, there are observations in the House of Lords and in the Court of Appeal which suggest that a person is not to be regarded as homeless during such a time. In Burrows v Brent LBC (1996) 29 HLR 167, the House of Lords had to consider the position of an ex-tenant who had been permitted to remain in occupation after the date on which the court had ordered possession to be given. Lord Browne-Wilkinson (whose speech and reasoning were agreed by the other members sitting) described such persons as `tolerated trespassers'. At p.174 he observed:-
"Moreover, the tenant will not be a homeless person with [s.175(1)] because the tenant will be occupying the residence by virtue of "any rule of law giving him the right to remain in occupation"
I can only suppose that the rule of law was that laid down by their Lordships in that case.
24. In Hainiff v Robinson [1992] 3 WLR 875 the Court of Appeal were concerned with a claim by a landlord that, once a court order had been obtained, he could recover possession by self-help. The Court decided that he could not and that the only means of enforcement was by execution of a warrant pursuant to the County Court Rules. The court was concerned with the wording of s.1 of the Protection from Eviction Act 1977 which defined `residential occupier' in the same words as appears in s.175(1)(c). S.3 of the 1977 Act stated that it was not lawful to enforce the right to recover possession otherwise than by proceedings in court. At p.882A, Woolf LJ said this:-
"The words "otherwise than by proceedings in court" do not clearly indicate what is to be treated as being included in the proceedings. However, I have no doubt that, in the context of the statutory tenancies with which we are here concerned, that what is intended to be the effect of section 3 is that it should continue to provide protection until there has actually been execution in the ordinary way by the court' bailiff in accordance with the requirement of the County Court Rules 1981 (S.I. 1981 No.1687 (L.20)). Ord.26, r.17, of those Rules provides: "(1)A judgment or order for the recovery of land shall be enforceable by warrant of possession". The Rules indicate no other way of enforcement. The table of procedure presupposes that after an order is made, that will be followed by a request for execution in due course by the person in whose favour the order has been made, followed by the execution by the court bailiff. The actual warrant for possession of land which is issued in consequence of the request under Ord.26, r.17, of the County Court Rules 11981 makes the position clear. It is addressed to the registrar and bailiffs of the court, and it presupposes that the bailiff, having obtained possession, will deliver that possession to the plaintiff"
25. Against these cases, Mr Luba has cited a decision of Lord Coulsfield sitting in the Outer House, Stewart v Inverness District Council [1992] S.L.T. 690. The applicant in that case was the occupier of a mobile home. The local authority obtained, following the expiry of a notice to quit, a decree to evict him from the Sheriff Court. That decree was suspended and came into effect on 28 September 1990. That, as I understand it, is the effect of the expression `the extent of the decree was superseded'. Thereafter, to use Lord Coulsfield's words:-
"The petitioner had no shadow of right or title to continue in occupation nor was his continued occupation protected by any rule of law. From that moment his occupation was precarious"
It was not, he continued, right to regard him as having a permission to remain merely because the final steps to achieve eviction had not been taken. Thus the applicant was homeless after 28 September.
26. It is to be noted that the case was not put on the basis that an enactment but only that a rule of law provided the protection. I am conscious that I am not sufficiently familiar with the Scottish system of recovery of possession to know whether there was any enactment which might have been prayed in aid. Furthermore, reliance seems to have been placed on the equivalent to s.175(1)(b) on the ground that there was a permission, the Scottish Act being somewhat wider than the English and reading:-
"has a right or permission, or an implied right or permission, to occupy.."
27. Thus Stewart v Inverness not directly in point. In any event, it seems to me that the language of s.175(1)(c) is clear and that the provisions of the Rules do restrict the right of the landlord to recover possession. The section is aimed at actual occupation. If that cannot be achieved, the right to recover possession is restricted. Accordingly, I am satisfied that until 18 January 2000 the applicants were threatened with homelessness rather than homeless and that Newham were wrong to treat them as homeless.
28. In these circumstances, the decision reached on 13 January 2000 that Ruksana was owed the s.193 duty was erroneous since she was not then homeless.
29. But, in case I am wrong, I should consider whether, if Newham was correct to treat the applicants as homeless, its duty could properly be discharged under s.206(1)(c) by giving advice to remain. It would be strange if a duty to secure that suitable accommodation was available could be discharged by advising that a person remain homeless. That indeed seems to me to be fatal to the council's case in this respect. Furthermore, as I said in Ex p. Jarvis, it is wrong to apply a policy which uses this method as a way of deferring the need to provide alternative accommodation in every case without considering whether to do so is appropriate for the individual applicant.
30. Faced with an application based on threatened homelessness, the Council should in my judgment take steps immediately to answer the s.184 questions. In many cases (and this is surely one) that should not take very long. They can of course try to persuade the landlord to hold his hand to enable them to find alternative accommodation. Equally, provided that they take account of the Code of Guidance and ask themselves whether it is suitable for the applicant to be advised to stay put in an individual case, they can lawfully advise as they did. I do not accept that occupation in s.175(1)(c) means only lawful in the sense of non-trespassory occupation. Nor is the advice to remain rendered unlawful merely because it is to continue to trespass and to require the landlord to proceed to eviction. But the Council must consider too the landlord's position; it is cynical in the extreme to take the attitude that the tenant will not suffer because the landlord will not be able to recover the bailiff's costs.
31. Once the s.184 questions are answered, the s.195 duty may arise. If it does, it is quite clearly intended by Parliament that the applicant should not cease to have accommodation. Thus to do nothing more by way of finding accommodation than to hold the position until the actual eviction is to fail to act in accordance with the purpose of the Act. That being so, I do not think that Newham's way of dealing with applicants who are threatened with homelessness is lawful. As Mr Luba pointed out they are (subject only to the possibility of having the s.184 inquiries dealt with at an earlier time) in no better position than those who are actually homeless since on the date they are evicted they must attend the office and will get whatever accommodation may happen to be available. I am not persuaded by the argument that those threatened with homelessness may not in the end become homeless. Each case must be considered on its merits and where, as here, it is obvious that homelessness will ensue, steps must be taken to prepare for it. At the very least, Newham should recognise that if suitable accommodation becomes available applicants should be offered it, at least if the full housing duty under s.195 is accepted.
32. Finally, I must consider the question whether the suitability of accommodation should have been judged on the basis that all the occupants (that is to say both applicants, their families and their mother) had to be accommodated. This means considering s.176 and in particular s.176(a). I entirely accept that whether other persons normally reside with an applicant is a question of fact to be determined by the Council. I have been pressed by Mr Matthias with R v L.B. of Lambeth ex.p Ly (1986) 19 HLR 51 which so decided.
33. In this case, it is clear that until they were evicted all those living in the accommodation were normally residing together. The Council relies heavily on the fact that two separate applications were made. This was said to have been `entirely voluntary'. I suppose this may depend on one's view as to the meaning of the word voluntary in this context. The reality is that the applicants were faced with an impossible choice. It is a little odd, too, that her mother was grouped with Ruksana, who did not receive the carer's allowance, rather than Farzana who did.
34. It may be that had the applicants proceeded on the basis of two separate applications until after the Council had reached decisions under s.184, they could not change their minds. But that did not happen since they requested that they be housed together on 11 January 2000. There can be no doubt that they were then all normally residing with each other as members of the same family. That being so, only one decision was possible, namely that the accommodation had to be suitable for all to live together. Thus the decision reached by Newham was irrational in the Wednesbury sense and for that reason the offer to Farzana was not a proper discharge of the Council's duty.
35. Since the applicants now have suitable accommodation, it may be that no relief beyond perhaps some declaration is needed. But I will hear counsel on this matter.
MR JUSTICE COLLINS: Mr Luba, Mr Matthias, you have both received the judgment which is to be handed down. Mr Luba, I am grateful to you for the notice of various proposed amendments. Most of them have been incorporated. There is one that has not which ought to have been which is at paragraph 9, line 7. At present the sentence beginning, "I do not need to make any findings on the rival contentions nor, in the absence of evidence could I." That should read "nor in view of the conflicting evidence could I", so delete "in the absence of" and substitute "in view of the conflicting" which is what you suggested Mr Luba.
I have also, as is inevitably the case, spotted a couple of errors in paragraph 24. The first line should read, "the Court of Appeal was concerned" rather than "were concerned" I think the Court of Appeal usually takes the singular and, in the sixth line, "appears" should be "appear". The only amendment of yours Mr Luba that I have not incorporated is at paragraph 17, line 6, because I think the decision is, is it not, whether he is homeless and not whether he may be homeless.

MR LUBA: My Lord, it is only in the context of that sentence. My Lord has written that if the Applicant is homeless there is an interim duty under section 188, where a section 188----

MR JUSTICE COLLINS: You are quite right. I was looking at the previous line. Mr Luba, I think that should be "may be", in connection with the section 188 duty. That is right, Mr Matthias?

MR MATTHIAS: My Lord, yes.

MR JUSTICE COLLINS: Thank you. In that case I will then amend "is there" to "may be" so it reads, "if the Applicant may be homeless there is an interim duty". Subject to those amendments, that is the judgment.

Mr Luba, what relief would you submit is appropriate as a result?

MR LUBA: Has my Lord had the opportunity to see the draft orders that I sent to my Lord's clerk yesterday?

MR JUSTICE COLLINS: Yes, I am grateful.

MR LUBA: Can I take my Lord to them briefly? The first part deals with orders that my Lord made on 16th March, that is on the first day of the trial. My Lord made two procedural orders on that date which are reflected here, to give permission to put in a witness statement and to amend the Form 86A.

MR JUSTICE COLLINS: I then have the wrong document, because I only have one, I think.

MR LUBA: My Lord has Mr Matthias' draft.

MR MATTHIAS: I think that is my draft.

MR JUSTICE COLLINS: In that case, Mr Luba, I regret to say it looks as if yours did not get through to me. I am sorry about that. There must have been some breakdown in communication.

MR LUBA: My Lord, as I said, my order was in two parts. The first reflects my Lord's procedural orders made on the first occasion.

MR JUSTICE COLLINS: There is no problem about those is there?

MR MATTHIAS: No, my Lord.

MR LUBA: I am obliged to my friend. My Lord, then there is the substantive matter. May I invite my Lord to read that.

MR JUSTICE COLLINS: (Pause) now do you really need two, three, four and five, Mr Luba?

MR LUBA: I do in these circumstances, my Lord. The decisions which the authority made in this case are all extant, even though in the course of argument various of them were argued differently, on a different statutory basis. My Lord, it is simply important that they go. None of them have been withdrawn, so I invited my Lord to quash them. It is of importance in this context because there have been some difficulties in one or two previous cases in the authority precisely understanding what the effect of judgment is, and that is why I press those matters.

My Lord did indicate at the end of the judgment as handed down that because the two ladies in question were in what my Lord has described as "suitable accommodation", it may be that nothing more than declaratory relief was needed.

MR JUSTICE COLLINS: That is wrong is it?

MR LUBA: My Lord will recall, firstly, that there has been a decision already in relation to Farzana, the duty to her is discharged effectively.

MR JUSTICE COLLINS: You are absolutely right. It is plain from the judgment that those decisions must go.

MR LUBA: That then leaves the question what does the future hold? My Lord was given the impression, correctly by the authority, that the ladies were all in the same building, that is right, but my instructions are that it is a very large five bedroom house of which one part of the family has one part, the next family has another and it may be that there is a third part occupied by a different family. In those circumstances, my Lord, all that is suggested is that the authority should consider again how the duty is to be discharged to all of them. As I understand it, they are in different self-contained parts of the house. It may be that the authority's decision is that this provides, as a single unit, adequate accommodation for all. If that be so, then my learned friend will no doubt offer an undertaking in substitution for my proposed mandamus.

MR JUSTICE COLLINS: I am usually reluctant to make orders of mandamus in these cases for obvious reasons because they are normally not necessary.

MR LUBA: Precisely so, that is why my learned friend has had notice of my application in that regard. No doubt, I assume Newham will give an undertaking to look again at whether it has adequately discharged its duty to the whole family. They may take the view that they have, but they have not yet considered the question.

MR JUSTICE COLLINS: Yes.

MR LUBA: My Lord, those are the orders I seek.


MR JUSTICE COLLINS: Point (6), I am not so sure about that. That really comes out of the judgment, I am not sure you really need a declaration.

MR LUBA: My Lord, I have overlooked my friend's version. Can I pass that up (same handed).

MR JUSTICE COLLINS: It certainly comes out of the judgment. I think it is really important to read the judgment and to put that into context. Is it a necessary declaration because, as I say, the judgment surely makes plain what my views are about that.

MR LUBA: That must be right, but I say that ordinarily I would not press for such a declaration because the judgment does speak in declaratory terms of my Lord's findings. The difficulty here is that the front line officers from tomorrow, have to understand how to apply the judgment.
I thought that providing it by way of a checklist of the things that must be changed might be more helpful to officers than having to read my Lord's judgment.

MR JUSTICE COLLINS: The problem is, that putting it in that unqualified way is not necessarily a true reflection of the precise terms of the judgment, is it?

MR LUBA: All I can do is distil the essence, otherwise I would simply be reformulating.

MR JUSTICE COLLINS: I do understand that, Mr Luba. I think it is important that the judgment should be studied in order to see precisely what the duties are. It is quite plain what my views are as to the proper steps that should be taken, and it is up to Newham to apply those, unless and until they go to a higher court. I am not sure, as I say....

MR LUBA: My Lord, I cannot put it further.

MR JUSTICE COLLINS: I suppose you could say that that at least makes clear to them that what they are at present doing must be changed?

MR LUBA: My Lord knows that the background to this case is a concern that perhaps that was not the effect of Dyson J's decision in Sacupima where until the various internal memoranda were disclosed, we were not quite sure what was going on. At least if there is a declaration everyone can understand, not only those who have access to the judgment.

MR JUSTICE COLLINS: As far as (7) is concerned.

MR LUBA: My Lord, that is important if one removes as one must -- and I see that my learned friend deals with this point also -- the finding in relation to Ruksana, that she was homeless at a particular date which cannot stand. I invite my Lord to quash that, but we would want to avoid the necessity for the authority going through the motions again and that is why both his draft and mine reflect the proposition that it be declared that they are both owed a duty and that it will save, as it were, administrative time.

MR JUSTICE COLLINS: Mr Matthias, I see there is a tiny difference in the wording which is immaterial, are you happy with that?

MR MATTHIAS: I am, it seems convenient from every point of view.

MR LUBA: My Lord, to look at them again. In relation to (2) to (5), I do seek certiorari to clear the decks, as it were, and for a purpose, which I ought to make clear in just a moment, in relation to the decision at item (3). I do seek certiorari at (2) to (5). I do seek the declarations at (6) and (7). I am grateful for my learned friend's indication on (7). On (8), I only press mandamus to the extent that I wish to secure from my learned friend an undertaking to look again at the question of how to discharge the duty to the whole family.

MR JUSTICE COLLINS: Is the declaration that Mr Matthias is willing to accept as his number (4) sufficient to deal with that?

MR LUBA: My Lord, unfortunately that is expressed in the present tense. "It is declared that they reside together". Of course, presently they do not, they are in different parts of the house. We would want to avoid that in the way we have suggested.

MR JUSTICE COLLINS: If it were a declaration slightly amended to declare that the Applicants' -- or in considering how to discharge their duty, the Council must accept that the Applicants normally reside together etcetera.

MR LUBA: My Lord, in that sense, one would borrow part of my (8) and mix it with Mr Matthias' point (4).

MR JUSTICE COLLINS: Make it a declaration instead of mandamus.

MR LUBA: Yes, I am perfectly content with that.

MR JUSTICE COLLINS: That is one way possibly of considering it. What about Mr Matthias' (2), which I think one would have to....

MR LUBA: My Lord, that is the necessary other side of the coin from the certiorari at (3), which is, if she was not homeless, what was she?

MR JUSTICE COLLINS: She was threatened with homelessness.

MR LUBA: That is what we would have my Lord find, but that is not quite what my learned friend would have.

MR JUSTICE COLLINS: That is what I have found, is it not?

MR LUBA: My Lord, at the stage that she was threatened (where one would consider her perhaps to be threatened) the authority had not, in fact, reached the decision that she was threatened. That is partly the important practical issue on which my Lord alights in the course of the judgment. Suppose someone does attend at a date where they have still to await the crystalisation of bailiff eviction, let us assume that the authority does entertain it in the sense of starting a 184 Inquiry. The real difficulty is, even though the man on Clapham Common might say, plainly they are threatened with homelessness so you can decide the case, what happens if no decision is made by the date that the actual homelessness crystalises? That is the significance.

MR JUSTICE COLLINS: I follow that. The only point I make is it seems to me when someone comes along within 28 days of an possession order biting, then he is clearly threatened with homelessness because, at that moment, if he does nothing, it is likely that he is going to be homeless at the date the possession order comes into force. The Council may indeed advise, 'wait until the bailiffs'. It could well be said that at that moment, it may be that the 28 days has extended itself to whatever, so there is no likelihood of homelessness within 28 days, but that is a totally artificial position. In theory, of course, the Applicant can come back within 28 days of the bailiff's eviction and start the whole thing again. The reality is, as I hope I have made clear, that the Council in my view should start its inquiries and continue them.

MR LUBA: My Lord, that comes through clearly. Certainly, I am sure Mr Matthias' clients accept that is the thrust of my Lord's judgment. The 64,000 dollar question is do they have to reach a section 195(2) duty decision before the actual homelessness crystalises?

MR JUSTICE COLLINS: The answer to that is "yes" if the facts are such that it is so clear that they ought to be able to do it. Indeed that is, in my view, what Parliament clearly intended should happen. There may of course be cases where there are difficulties on intentionality or on other factors which may mean that the Council is not able to reach its conclusion in time. It may be that the Applicant comes very much at the last moment and thus there is not sufficient time, but it seems to me, and again I hope this is the tenor of the judgment, that the inquiries should proceed and the conclusions should be reached if possible.

MR LUBA: Indeed, my Lord.

MR JUSTICE COLLINS: The whole purpose behind it, as I have said, is that if possible the Applicants and their families should not be made homeless at any time. There should be a smooth removal from the property from which they are evicted to property which provides them with the section 193 or 195 duty, whichever it may be.

MR LUBA: My Lord, in those circumstances, my learned friend's declaration of his point (2) is entirely unobjectionable and fairly reflects the judgment. I have not dealt with that aspect as a form of declaratory relief, but it would necessarily follow from the grant of certiorari under (3).

MR JUSTICE COLLINS: Presumably, Mr Luba, you are making an application for costs?

MR LUBA: I am, my Lord, and that is reflected at number (9) of my list of orders. At (10), I seek a legal aid assessment as both Applicants are legally aided.

MR JUSTICE COLLINS: Now, Mr Matthias, what do you have to say about all these?

MR MATTHIAS: I would rather my Lord took my cue from the final sentence in your judgment to the effect that, given the carefully explained nature of my Lord's judgment, all that would be required is perhaps declaratory relief. In my respectful submission, that is entirely correct. Items (2), (3), (4) ----

MR JUSTICE COLLINS: Do you accept that the decisions that Mr Luba deals with in (2) to (5) inclusive cannot stand in the light of the judgment?

MR MATTHIAS: Absolutely.

MR JUSTICE COLLINS: Why do we not put in the order, something along these lines, "on the Respondent's accepting that the decisions" (and then enumerate them) "cannot be maintained".

MR LUBA: If they are withdrawn, then my Lord does not need to quash them.

MR JUSTICE COLLINS: Will you simply agree to withdraw them?

MR MATTHIAS: My Lord, yes.

MR JUSTICE COLLINS: "On the Respondent's agreeing to withdraw those various decisions, the following declarations are made" and then we can decide which of the appropriate declarations. Would that be a sensible way of dealing with it?

MR MATTHIAS: I would be entirely content with that.

MR JUSTICE COLLINS: That focuses on the removal of them. We do not need formal orders of certiorari and there can be no formal misunderstandings.

MR LUBA: Exactly.

MR JUSTICE COLLINS: We will deal with (2) to (5) in that way. Then the declarations.

MR MATTHIAS: My Lord, on point (6), I would entirely echo the point that you made to my learned friend, Mr , Luba about that being unhelpful, because it states the point far too boldly and far too broadly. The lawfulness of the local authority's approach is carefully explained in my Lord's judgment and it is indeed to the judgment that the officers must go.

MR JUSTICE COLLINS: I am reluctant, I am bound to say, to make any declaration which seeks to state rather too baldly something which does need refinements, because there is a danger that the declaration would be looked at in isolation in those circumstances. I am afraid, burdensome though it may be, those who are responsible for carrying this out must look at the judgment and, no doubt, will receive advice about the effect of it.

MR MATTHIAS: My Lord, yes.

MR JUSTICE COLLINS: I think that is right, I think the judgment speaks for itself on that and I am not persuaded that point (6) is needed.

MR MATTHIAS: I am obliged. My learned friend and I are ad idem ade dem (?) on (7).

MR JUSTICE COLLINS: (7) is fine.

MR JUSTICE COLLINS: I take Mr Luba's point, and I think, although it will not be an order of mandamus, that can be translated into some sort of declaration.

MR MATTHIAS: Can I very briefly address you on that, because the accommodation in question that the two families have now been occupying together since 21st January is a five bedroomed house. I am instructed -- and there is not a word coming from the Applicants to again say this in any respect. It is a five bedroomed house that had been, as it were, split into three self-contained units so it can accommodate three small families. It has all been opened up now.

MR JUSTICE COLLINS: Mr Matthias, I do not have any evidence before me as to the precise circumstances, because we did not have to go into that. It seems to me, in the light of what has happened, the Council is going to have to reconsider how to discharge its duty in the light of the judgment, because it has not made a formal decision about it yet. The reason they are where they are is because of the interim order made by Sullivan J, is that not right?

MR MATTHIAS: My Lord, yes, that is right.

MR JUSTICE COLLINS: The position has been held, but you have never made a decision. You have to make a decision. It may well be that the decision you make is that the accommodation they are in is suitable and they should remain there, but that is a matter for you. Therefore, as I say, since I have no evidence about it and since if they do take the view that it is not suitable, they then have their right of appeal to the county court which ought to be preserved, you have to make a decision on it.

MR MATTHIAS: My Lord, I am sure that is absolutely right. Indeed that necessarily follows from the withdrawal of the decisions and particularly the decision that is at number 5 in my learned friend's draft order. On withdrawing that decision, then, clearly -- my Lord, in my submission there is absolutely no need for an order of mandamus.

MR JUSTICE COLLINS: As I say, if it reads "it is declared that the Respondents shall reconsider" etcetera, that will cover it, will it not?

MR MATTHIAS: On my declaration (3), my Lord.

MR JUSTICE COLLINS: I am looking at Mr Luba's point (8). Instead of "there shall be an order of mandamus requiring", it is "declared that the Respondents must", it is not really reconsider, it is consider, because they have not yet considered it. "must consider", I do not think we need "forthwith". "The respondents must consider, according to law, how best to discharge the aforementioned duty" that is the 193 duty, "in such manner as to secure that the applicants, their mothers, their husbands and their children are suitably accommodated together." That comprehends, does it not, the point you are making in your proposed form.

MR MATTHIAS: My Lord, that is right, we can then delete (4).


MR JUSTICE COLLINS: Yes, I am working from Mr Luba's. I am going to ask you, if you would, to put before the Associate the order, when we have gone through what should be in it. The only other declaration that you want, and which Mr Luba does not have, is your point (2) I think?

MR MATTHIAS: My Lord, that is obviously a matter of enormous importance.

MR JUSTICE COLLINS: You are perfectly entitled to that. It comes out of the judgment and if you want it in, I shall put it in.

MR MATTHIAS: I am very grateful.

MR JUSTICE COLLINS: What about costs?

MR MATTHIAS: My Lord, on the question of costs, it is fair to see there are three issues that were aired here.

MR JUSTICE COLLINS: You say you won on the threatened point.

MR MATTHIAS: Yes. Indeed it took the whole of the second day. We would conclude in this case, beyond peradventure, that at the end of the first day had it not been for my learned friend's resistance----

MR JUSTICE COLLINS: I am not going to cast any blame. Had section 230 been referred to earlier, I think it might have shortened things, might it not?

MR MATTHIAS: My Lord, yes.

MR JUSTICE COLLINS: Very considerably.

MR MATTHIAS: My Lord, yes. There it is, it escaped everyone's attention over two hearings. It is at a curious place in the act. It is not in that part of the act.

MR JUSTICE COLLINS: You had it of course copied in your bundle of material.

MR MATTHIAS: Yes. It is one of those things, my Lord.

MR JUSTICE COLLINS: It happens, Mr Matthias, I am not blaming anyone.

MR MATTHIAS: The fact of the matter is, when one looks at the Form 86A, it was a crucial part of the application being made against this local authority, in the relief sought, that they had not secured the provision of accommodation as early as 10th December. That was the first item of relief sought in the Form 86A.

MR JUSTICE COLLINS: That was based upon Dyson J's decision.

MR MATTHIAS: Precisely so.

MR JUSTICE COLLINS: Which appeared to be the law then.

MR MATTHIAS: Just so. At page 68, paragraph 5 in the bundle is the witness statement of Peter Williams. If your Lordship would like to remind yourself of that short paragraph at paragraph 5.

MR JUSTICE COLLINS: What I have decided is, it did not make any difference. You had it wrong whether it was threatened with homelessness or not, and it is fair to say that the memorandum which was produced by Mr Williams was not as clear as it might have been and the Applicants can be forgiven for thinking that it did look as if Newham was not paying more than lip service to Dyson J's decision.

MR MATTHIAS: My Lord, that is right. That was entirely understandable until the witness statement of Mr Williams was served on them. They persisted with the argument, not only persisted with the argument but, as it were, persisted to the bitter end, so my Lord had to actually convene the court for a second day.

MR JUSTICE COLLINS: To be fair again to Mr Luba, his point always was that this was not a necessary part of his case. I think he was wrong about that, because it seems to me it was necessary for me to determine what the position was in law, because upon that depended what duties the local authority had. I think the matter actually did have to be decided one way or the other. Of course, Mr Luba did not need to challenge Dyson J's decision in order to get home.

MR MATTHIAS: No.

MR JUSTICE COLLINS: It was you who said, and I am sure you were right in the result, that I ought to consider that matter. As I say, it was not actually a necessary part of Mr Luba's case as he thought.

MR MATTHIAS: My Lord, that is right. That is why he, as it were, got home at the end of the first day of the hearing because my Lord found against me.

MR JUSTICE COLLINS: What you are saying is he should not have the costs of the second day, is that what it boils down to?

MR MATTHIAS: I would invite you to make an order to the effect that half of his costs be met by the local authority to reflect the fact that the second day was, as it were, really unnecessary. My learned friend need not have opposed that with such vigour.
MR JUSTICE COLLINS: He had some authority in his favour.

MR MATTHIAS: He was entitled to.

MR JUSTICE COLLINS: The Scottish case was there and it was not an easy point.

MR MATTHIAS: I do not say he was not entitled to but, effectively, he should be prepared to pay for the privilege.

MR JUSTICE COLLINS: You say that nowadays the court is required to consider split orders more than it used to. It is in the new costs rule.

MR MATTHIAS: Part 44 on page 567, I can pass that up.

MR JUSTICE COLLINS: I am not sure I have the up-to-date version here.

MR MATTHIAS: May I pass this up, my Lord. It is 44.3(4b).

MR JUSTICE COLLINS: Yes. It is mandatory that I have regard to that circumstance. Is that your submission, Mr Matthias?

MR MATTHIAS: That is my submission.

MR JUSTICE COLLINS: Mr Luba.

MR LUBA: I know my learned friend is trying to save the Borough some money but, my Lord, it really does not run. The first point in the case is, was it lawful to tell us what we were told which was: "stay where you are"? My learned friend is right to say that when the Form 86A was settled it was thought that the authority was simply not following the judgment.

MR JUSTICE COLLINS: That seems to me to be a wholly reasonable assumption.

MR LUBA: That is right. When the evidence came in, the evidence was, 'oh yes we are following the judgment, but we have had this new idea given to us by learned counsel which is, that we are going to discharge the duty under 206(1)(c) by telling them to stay where they are'.

That was their case. That was their evidence and that is what in fact happened. My Lord has held all that was unlawful. What my learned friend has done, and I make no criticism, is use the opportunity of this particular judicial review to err the question of whether Dyson J was right or wrong on the point that he decided.


MR JUSTICE COLLINS: It seemed to me, when I came to consider the judgment, that it was a question I really had to answer because, as I say, the answer to it depended on the duties that the council owed to you.

MR LUBA: Or would have, although, obviously, by that stage----

MR JUSTICE COLLINS: You are right. I suppose you would say that by now, it was water under the bridge because homeless or threatened with homelessness, the Council had it wrong.

MR LUBA: That is right, my Lord, the decision to treat us in that particular way.

MR JUSTICE COLLINS: Yes.

MR LUBA: We had to pursue it.

MR JUSTICE COLLINS: Anything you want to add, Mr Matthias?

MR MATTHIAS: Unless I can be of further assistance, my Lord.

MR JUSTICE COLLINS: No, Mr Matthias. I think overall, the fair and just order is that you bear the costs of the Applicants. There will of course be legal aid assessment rather than taxation, because no one is supposed to understand what taxation is supposed to mean.

MR MATTHIAS: My Lord, I am instructed to ask for permission to appeal.

MR JUSTICE COLLINS: I think, Mr Luba, I would be wrong to refuse it in the light of the points that have been raised. It cannot be said that they are not of some importance in this field. Of course, in the light of the appeal already existing in Sacupima.

MR LUBA: Yes. The matters that my Lord has decided adversely to the respondents are----

MR JUSTICE COLLINS: Do you want to appeal on that point?

MR LUBA: My Lord, I do. It would be churlish of me to say my learned friend should not have leave to appeal.

Ruling: Permission to appeal

MR JUSTICE COLLINS: You can both have permission to appeal on the relevant points. It may be convenient, you had better make inquiries of the Court of Appeal, to see whether they think it is a good idea if appeals are to be pursued, that this case be joined in with the Sacupima cases. It may be that it is not. It may be that it simply adds issues which are not material, but I think the Court of Appeal should have the opportunity to consider whether they want to link this in.

MR MATTHIAS: I am sure my Lord's judgment will be scrutinised closely during the course of the Sacupima appeal.

MR JUSTICE COLLINS: On the threatened point certainly.

MR MATTHIAS: Yes.

MR JUSTICE COLLINS: It is not directly in issue on the other point, although I have made it clear in one sentence, if I had to decide it I would have thought it was not reasonable to require them to go to Great Yarmouth. As I say, it was not directly before me and I have not thought it necessary to go into any details about it.

MR MATTHIAS: My Lord, no.

MR JUSTICE COLLINS: I hope it is clear, although I have not said it in terms, that I entirely agree with that part of Dyson J's judgment.

MR MATTHIAS: Yes, you indeed summarised Dyson J's judgment.

MR JUSTICE COLLINS: Yes. As I say, that is a matter for you, but I think it would be sensible to find out from the Court of Appeal about that if either of you are proposing to proceed with the appeal. I think the only order I need make is that you both have permission.

MR MATTHIAS: My Lord, I am grateful.

MR JUSTICE COLLINS: Thank you both very much. Can I leave you please, before the end of the day, to give the Associate the order. Mr Luba, would you like your draft back.

MR LUBA: My Lord, I will incorporate Mr Matthias' parts that my Lord has referred to.


MR JUSTICE COLLINS: I have not done it fully. You may not be able to read my writing any way. Do you want both back?

MR LUBA: That may be as well.

MR JUSTICE COLLINS: If there is any problem, I shall be either here or at the tribunal until at least 3.30 p.m.

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