England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London
		Thursday 5 July 2001

Thursday 5 July 2001

1. MR JUSTICE JACKSON: This judgment is in eight parts, namely: Part 1, Introduction; Part 2, The Facts; Part 3, The Issues between the Parties; Part 4, The Review Board Hearing on 18 October 2000; Part 5, The Review Board Hearing on 17 May 2001; Part 6, Compliance with Article 6 of the Convention; Part 7, The Appropriate Remedy; and Part 8, Should the Stay on the Warrant for Possession continue?

Part 1 -- Introduction

2. In this action the claimant challenges steps taken by the Salisbury District Council ("the Council") to terminate her introductory tenancy of a dwelling-house.
3. I should state at the outset that two judges from the People's Republic of China have sat next to me on the bench throughout the hearing. They are Judge Guo Junfeng and Judge Sun Tianwen. They are here purely as observers and have played no part in formulating the present judgment. Both judges have an interest in human rights and administrative law. They are most welcome visitors to this court. Let me now read out the statutory provisions which are relevant to the present case. Section 124 of the Housing Act 1996 ("the 1996 Act") provides:

"(1) A local housing authority or a housing action trust may elect to operate an introductory tenancy regime.

(2) When such an election is in force, every periodic tenancy of a dwelling-house entered into or adopted by the authority or trust shall, if it would otherwise be a secure tenancy, be an introductory tenancy, unless immediately before the tenancy was entered into or adopted the tenant or, in the case of joint tenants, one or more of them was --

(a) a secure tenant of the same or another dwelling-house, or

(b) an assured tenant of a registered social landlord (otherwise than under an assured shorthold tenancy) in respect of the same or another dwelling-house.

...."

4. Section 125 provides that, subject to certain exceptions, an introductory tenancy lasts for one year. Section 128 provides:

"(1) The court shall not entertain proceedings for possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.

(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.

(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.

(4) The notice shall specify a date after which proceedings for the possession of the dwelling house may be begun.

The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.

(5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings.

(6) The notice shall inform the tenant of his right to request any review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.

(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor."

5. Section 129 provides:

"(1) A request for a review of the landlord's decision to seek an order for possession of a dwelling-house let under an introductory tenancy must be made before the end of the period of 14 days beginning with the day on which the notice of proceedings is served.

(2) On a request being duly made to it, the landlord shall review its decision.

(3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section.

Nothing in the following provisions affects the generality of this power.

(4) Provision may be made by regulations --

(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and

(b) as to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.

(5) The landlord shall notify the person concerned of the decision on the review.

If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision.

(6) The review shall be carried out and the tenant notified before the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling house may be begun."

6. Further provision is made in relation to reviews held pursuant to section 129 of the 1996 Act by the Introductory Tenants (Review) Regulations 1997 ("the 1997 Regulations"). Regulation 2 of the 1997 Regulations entitles the tenant to require that the review be by way of oral hearing. Regulation 3 requires that the review be carried out by someone who was not involved in the original decision to seek possession.
7. Regulations 5 to 9 of the 1997 Regulations are all relevant to issues which arise in the present case. They provide as follows:

"5. (1) Subject to the provisions of this regulation, the procedure in connection with a review by way of hearing shall be such as the person hearing the review shall determine.

(2) A tenant who has requested a hearing has the right to --

(a) be heard and to be accompanied and may be represented by another person whether that person is professionally qualified or not, and for the purposes of the proceedings any representative shall have the rights and powers which the tenant has under these Regulations;

(b) call persons to give evidence;

(c) put questions to any person who gives evidence at the hearing; and

(d) make representations in writing.

6. The landlord shall give the tenant notice of the date, time and place of the hearing, which shall be not less than five days after receipt of the request for a hearing and if the tenant has not been given such notice, the hearing may only proceed with the consent of the tenant or his representative.

7. If any person shall fail to appear at the hearing, notice having been given to him in accordance with regulation 6, the person conducting the review may, having regard to all the circumstances including any explanation offered for the absence, proceed with the hearing notwithstanding his absence, or give such directions with a view to the conduct of the further review as that person may think proper.

8. A tenant may apply to the landlord requesting a postponement of the hearing and the landlord may grant or refuse the application as they see fit.

9. A hearing may be adjourned by the person hearing the review at any time during the hearing on the application of the tenant, his representative, or at the motion of the person hearing the review and, if a hearing is adjourned part heard and after the adjournment the person or persons hearing the review differ from those at the first hearing, otherwise than through the operation of paragraph 7, proceedings shall be by way of a complete rehearing of the case."

8. Circular 2/97, issued by the Department of the Environment, gives further guidance to local authorities on the operation of the introductory tenancy schemes. As all counsel accept, however, the contents of this circular cannot override the statutory provisions.

Part 2 -- The Facts

9. The claimant is a single parent with seven children. Before May 2000, several of those children were convicted of criminal offences and found themselves in conflict with neighbours and the police.
10. On 22 May 2000, the council granted to the claimant an introductory tenancy of 1 Seth Ward Drive, Bishopdown, Salisbury. The tenancy agreement specified eight tenants' obligations of which number 6 read as follows:

"Not to allow your visitors, or any other persons living at the property including children, to:

(i)use the property for any illegal or immoral purposes

(ii)do anything which is likely to cause nuisance, annoyance or disturbance to your neighbours. This includes:

(a)playing loud music

(b)arguing and door slamming

(c)dog barking and fouling

(d)offensive drunkenness

(e)selling drugs and drug abuse

(f)dumping rubbish

(g)playing ball games close to someone else's home

(iii)damage the property, its services or any other property in the ownership of the Council. This includes:

(a)causing any damage by defacing or putting graffiti on Council property

(b)interfering with safety and/ or security equipment in communal blocks, for example by jamming doors or letting in strangers without identification."

11. It was envisaged that the claimant would live at 1 Seth Ward Drive together with five of her children. However, at that time two of the sons were serving prison sentences. Accordingly, on 23 May 2000, the claimant and three children moved into 1 Seth Ward Drive. Unfortunately, the problems associated with the claimant and her family continued after they moved into the new address. There were complaints from neighbours about incidents of noise and nuisance. There were occasions when, for one reason or another, the police and the emergency services attended at that address.
12. On 5 September 2000, the council served on the claimant a notice pursuant to section 128 of the 1996 Act. That notice stated as follows:

"1. To: Anne McDonagh

1 Seth Ward Drive

Bishopdown

Salisbury

2. The Salisbury District Council intends to apply to the Court for an order to bring your tenancy to an end and requiring you to give up possession of:

1 Seth Ward Drive

Bishopdown

Salisbury

3. Possession will be sought for the reason that you are in breach of number 6 of the Tenant's obligations as set out in your Tenancy Agreement.

4. The reasons for taking this actions are: Ongoing domestic incidents, particularly during the early hours of the morning resulting in frequent attendance by the Police. Extreme and foul language directed at the Police and others. Drunk youths frequenting the property. Dog barking during early hours, playing of loud music and generally allowing your visitors and other persons living at the property to engage in acts likely to cause a nuisance or annoyance to your neighbours.

6. The court proceedings will not be begun until after Monday 9 October 2000.

7. The last date for applying for a review of the decision to issue this notice is: Wednesday 20 September 2000.

8. If you apply for a review of the decision the review will be completed and you will be notified of the result by the Review Committee."

13. In response to this notice, the claimant requested, pursuant to section 129(1) of the 1996 Act, a review of the council's decision to seek an order for possession. A review of the council's decision duly took place on 18 October 2000 before the Salisbury District Council Introductory Tenancy Review Board. On this occasion Mr Hodkinson, an assistant solicitor employed by the council, acted as clerk to the Review Board. Mr Pearce, a housing manager employed by the council, outlined events between May and October 2000, and explained why the Housing Department had decided to seek an order for possession. Mr Redhead, the solicitor representing the claimant, did not put any questions to Mr Pearce. He did, however, make submissions on behalf of the claimant.
14. At the end of the hearing the Board deliberated for 20 minutes and then announced its decision which was as follows:

"We have heard from Mr Pearce and your representative. Our concern today is to examine the history of the matter and to investigate whether there is any reason why this matter in our view should not proceed to Court.

In reaching our decision we have taken the following points into particular account.

1. There is a history of complaints relating to Miss McDonagh's occupation at 130 Ashley Road and notwithstanding clear warnings from Mr Pearce this history continued after Miss McDonagh moved to 1 Seth Ward Drive.

2. In spite of the evidence of Miss McDonagh that the two elder boys had moved away, incidents and allegations have continued to be reported to the Council.

3. Mr Pearce gave Miss McDonagh every opportunity to resolve the situation and he made the consequences of not doing so clear to her.

4. The Board has sympathy with Miss McDonagh's personal position and take note that some of the incidents complained of may have been caused by visitors to the property. However, we must balance our duties to Miss McDonagh with our responsibilities to the neighbours. We therefore uphold the decision of the relevant Housing Officer that this matter should proceed to Court."

15. At this point in the narrative it should be noted that the council was in breach of section 129(6) of the 1996 Act. That section required the review to be carried out before 9 October 2000. In the event, the review was not carried out until nine days after the specified date.
16. This breach of section 129(6) has never been complained of, or even noticed, by anyone until I pointed it out in the course of argument yesterday. It does not give rise to any independent head of claim by the claimant, but it is relevant to an issue which arises later in this judgment.
17. Following the decision of the Review Board, the council commenced proceedings for possession in the Salisbury County Court. On 24 November 2000, Deputy District Judge Hine at the Salisbury County Court made an order for possession against the claimant, not to be enforced before 15 December.
18. On 20 December 2000, the claimant commenced the present proceedings for judicial review. She contended on a number of grounds that the Review Board's decision dated 18 October should be quashed. Following the commencement of these proceedings successive orders have been made staying the warrant of possession by which the council would have enforced the possession order dated 24 November 2000. The consequence of these stays is that the claimant and her children today remain in occupation of 1 Seth Ward Drive.
19. The application for permission to apply for judicial review was heard orally by Richards J on 20 March 2001. Richards J granted permission because he thought it arguable that the Review Board on 18 October had approached its task in the wrong way. The Board had adopted a Wednesbury approach, whereas (at least arguably), it should have considered the substantive merits of recovering possession: see page 2 of the transcript of the judgment given on 20 March. After Richards J had delivered judgment, the following exchange occurred between the judge and Mr Wightwick, who was then representing the council:

"MR JUSTICE RICHARDS: I did mention the Article 6 point because I said it interlinked with the Article 6 point as to the role of the court in judicial review and whether, if the claimant was right that there was an error of approach, that a Wednesbury review approach had been adopted, then the problem was that the Review Board would not have considered the merits, and nobody would have considered the merits after the original decision maker, and whether therefore there was a problem under Article 6.

MR WIGHTWICK: I am grateful for that indication. It is essential to clarify that because the Council intends to carry out a further review in the light of your Lordship's comments, and it needs to know on what basis that review should be carried out.

MR JUSTICE RICHARDS: I am pleased to hear that the Council is intending to carry out a further review because it may be the way of resolving this litigation. So that the matter is quite clear, my concern is that, if there is not a decision by a review board on the merits of recovering possession, that is to say, operating as a primary decision-maker looking at the pros and cons, the evidence for and against, and reaching a judgment as to whether a proper case has been made out for recovery of possession, then I am a little concerned that there has never been an examination on the merits of a kind that, when you put together the various components, could result in compatibility with Article 6 (including the role of the court in the exercise of its supervisory jurisdiction).

MR WIGHTWICK: That is exactly what the Council will now do.

MR JUSTICE RICHARDS: That makes it clear, I hope."

20. Correspondence then ensued between the parties concerning the further review hearing which the council proposed to hold. I do not intend to trawl through that correspondence. Suffice it to say that in the end the second review hearing was fixed for 17 May 2001, and the claimant declined to attend that hearing.
21. At the hearing on 17 May the members of the Review Board were persons who had no previous involvement in the case. A different solicitor, namely Mrs Tovey, acted as clerk to the Board. The Board, on the advice of Mrs Tovey, was careful to heed the guidance given by Richards J. The Board heard the oral evidence of Mr Pearce and it considered extensive documentary evidence. The Board then reached the following decision:

"1. Findings of Fact:

1.1Introductory tenancy signed on 22 May 2000.

1.2The Notice to end the Tenancy complies with the statutory requirements and was served on Miss McDonagh on 7 September 2000 by Mr John Pearce.

1.3On 24 May 2000 Miss McDonagh received a visit from John Pearce who explained the nature of an introductory tenancy to her.

1.4No evidence produced by or on behalf of Miss McDonagh to refute the Council's evidence.

1.5Apart from evidence given by John Pearce of visits he has made and discussions he has had with Miss McDonagh all other evidence is hearsay evidence.

1.6There has been a large number of police visits which would appear to be more than would usually be the case.

1.7There has been a number of reminders concerning the nature of the introductory tenancy, namely 24 May, 23 June, 7 July, 14 July and 26 July.

1.8Miss McDonagh accepted there was a problem, at least with one of the dogs since she had sold it by 28 July 2000.

1.9There was a serious incident on 28 July when the police were called and Luke Hall (the former partner) was arrested. This is evidenced by a neighbour complaint, the police record and the report of Miss McDonagh's own version of events.

1.10There has been considerable disturbance to the locality as evidenced by the large number of complaints, the number of different complainants, the variety of the complaints, the police attendance and the fact the complaints do not just relate to the immediate vicinity of the property.

1.11The complaints and police visits have continued since the first review hearing on 18 October 2000.

1.12With regard to the 18 January 2001 and 4 March 2001 incidents the versions of events given by the police in their letter of 25 January 2001 and e-mail of 12 April 2001 are accepted as the correct version regarding police involvement.

1.13The Journal reports of 11 January 2001 and 1 February 2001 do not relate to incidents that occurred at the premises.

1.14Article 8 of the European Convention on Human Rights (the right to respect for private and family life) applies to this case.

2. Interpretation of Law Applying to Those Facts

2.1The appropriate law is the Housing Act [1996] and the Human Rights Act 1998.

2.2 Housing Act 1996

There has to be sufficient finding of facts giving rise to a nuisance which in itself is sufficient to justify the issue of a Notice to end the Tenancy. In reach[ing] this decision the Council is entitled to rely on hearsay evidence (Paragraph 23 of Department of the Environment Circular 2/97)

2.3 Human Rights Act 1998

Article 6 provides [that] everyone is entitled to a fair trial in the determination of his or her civil rights. This right is an absolute right.

Article 8 provides that everyone has the right to respect for his or her private and family life, home and correspondence. This is a qualified right.

3. Review Board's Reasoning

3.1There has been a number of incidents over a period of time and, in particular, that on 28 July 2000 was serious enough in itself to justify the Notice being issued

3.2Article 6

The appellant had the right to attend and be represented and put her case. The panel was made up of people independent from the Council in so far as none has any say in the decision making process of the Council. The appellant has recourse to the Court by way of Judicial Review. The process is therefore considered compatible.

3.3Article 8

See attached checklist

4. Decision Flowing From the Above

4.1The incidents given in evidence are more likely than not to have taken place and are sufficiently serious to justify the Notice to end the Tenancy being issued.

4.2The interference with Article 8 is justified.

4.3The decision is within Article 6."

22. There is then a checklist of matters considered by the Review Board in relation to Article 8 of the European Convention on Human Rights.The claimant did not accept that the Review Board hearing on 17 May had cured the council's previous errors. Accordingly, she maintained her claim for judicial review. The matter came on for hearing yesterday.

Part 3 -- The Issues between the Parties

23. The issues between the parties have evolved since December 2000 when the claim form was drafted. Although there has been no formal amendment of the claim form, the validity of the Review Board's decision on 17 May 2001 is now a central issue between the parties. Argument on this issue occupied much of the hearing yesterday. I shall treat the claim form as if it had been amended so as to include an attack on the decision of 17 May. If this case goes further, that amendment must be made in proper form. It may be sensible if any dispute about the formulation of the amendment is dealt with by myself.
24. The issues which have been debated between the parties at trial may be summarised as follows:

(1) Was the Review Board hearing on 18 October 2000 an effective review of the council's decision to seek possession for the purposes of section 129 of the 1996 Act?

(2) Was the Review Board hearing of 17 May 2001 an effective review of the council's decision to seek possession for the purposes of section 129 of the 1996 Act.

(3) Does the review procedure contained in sections 128 and 129 of the 1996 Act comply with Article 6 of the European Convention on Human Rights?

(4) What remedy should this court grant?

(5) Should the stay on the warrant for possession continue?

I shall deal with the issues in that order.

Part 4 -- The Review Board Hearing on 18 October 2000

25. In this part of the judgment I address issue (1). Was the Review Board hearing on 18 October 2000 an effective review of the council's decision to seek possession for the purposes of section 129 of the 1996 Act?
26. The principal ground upon which Mr Egleton, counsel for the claimant, attacks the review hearing on 18 October 2000 is the ground which Richards J held to be arguable at the permission hearing. Mr Egleton contends that the Review Board adopted the wrong approach on 18 October. They focused upon the question whether the decision of the housing officer to apply for possession was reasonable in a Wednesbury sense.
27. Mr Straker QC, who appears for the council, drew my attention to certain inconsistencies in the evidence concerning the first Review Board hearing. However, very sensibly, he did not develop any substantial or sustained argument in defence of the Review Board's approach.
28. I shall state my conclusion on this issue with equal brevity. It is clear from the evidence as a whole that the Review Board on 18 October did not consider afresh the appropriateness of bringing proceedings for possession. Instead, the Board focused upon the question whether the housing officer had acted reasonably in reaching his decision. That approach is not in accordance with section 129 of the 1996 Act. On any fair reading section 129 requires that the landlord should consider afresh the evidence and the merits, and should reconsider whether the proper course is to bring proceedings for possession. When a landlord reviews his own decision under section 129, the process is not analogous to judicial review by a court.
29. The language of the 1997 Regulations points towards the same conclusion. Regulation 5 of the 1997 Regulations enables the tenant to call evidence and to cross-examine witnesses at the hearing. This procedure would seldom be appropriate if the purpose of the hearing was a limited form of review.
30. I therefore accept the claimant's principal submission on the first issue. I hold that the Review Board hearing on 18 October 2000 was not an effective review of the council's decision to seek possession for the purposes of section 129 of the 1996 Act.

Part 5 -- the Review Board Hearing on 17 May 2001

31. In this part of the judgment I shall address issue (2). Was the Review Board hearing on 17 May 2001 an effective review of the council's decision to seek possession for the purposes of section 129 of the 1996 Act?
32. Mr Egleton attacked the Review Board hearing on 17 May 2001 on five separate grounds. These grounds were:

(1) The relevant documents, in particular those provided by the police, were disclosed at a late stage to the claimant's solicitors, namely on the day before the hearing.

(2) There was no proper sorting or sifting of the evidence by the Review Board.

(3) The Review Board relied on events after the date of the first hearing, namely 18 October 2000.

(4) The Review Board applied the wrong standard of proof.

(5) The Review Board failed to consider whether the claimant was personally responsible for the incidents of nuisance alleged.

33. I shall address each of those grounds, and then I shall address a further possible ground which troubled me and which I raised during argument.

Ground (1) -- late disclosure of documents

34. Mr Straker submits that the council was under no obligation to disclose in advance of the hearing the documents relied upon. Nothing in the statute, the Regulations or Circular 2/97 requires such disclosure.
35. I am not persuaded by this submission. Neither the tenant nor his representative can play their proper part at the hearing if they are confronted with a bundle of relevant document at the very moment when the hearing begins. It is implicit in Regulation 5 of the 1997 Regulations that the tenant and his representative must have a proper opportunity to prepare for the hearing. Nevertheless, this obligation of disclosure upon the landlord must be understood and applied sensibly. In the present case there is no reason why the claimant's lawyers should not have read and assimilated promptly the documents provided to them on 16 May. The claimant and her lawyers could have been properly prepared for the hearing on 17 May, if they had chosen to attend. The claimant's first ground of attack therefore fails.

Ground 2 -- no proper sorting or sifting of the evidence

36. In support of this ground, Mr Egleton cites paragraph 1.10 of the Review Board's decision which is set out in Part 2 of this judgment. Mr Egleton submits that in the last part of that paragraph the Review Board strays away from the issues with which it was concerned. Mr Egleton also draws attention to Mrs Tovey's notes of the hearing at page T11, in which reference is made to disturbance within a wide area.
37. It seems to me that paragraph 1.10 of the Review Board's decision must be read in the context of the whole decision. Likewise, page T11 must be read in the context of the whole of Mrs Tovey's note. When read in context, neither of these passages suggests that the Review Board was straying away from the issues before it. The Board was endeavouring to take a sensible, overall view of the instances of nuisance emanating from the claimant's household.
38. All the evidence which I have seen concerning the hearing on 17 May indicates that the Board properly sorted and sifted the evidence before it. Accordingly, the claimant's second ground of attack fails.

Ground 3 -- reliance on events after 18 October 2000

39. This ground raises a question of construction. In a review held pursuant to sections 128 and 129 of the 1996 Act, by reference to what date should the reviewing body reach its decision? Should it consider the state of affairs at the date of the landlord's notice under section 128(3) or the state of affairs at the time of the review or the state of affairs at some intermediate date? The Act is silent on this question.
40. Whilst I have listened to a range of interesting submissions on this issue, it seems to me that common sense dictates the answer. A decision whether or not to bring legal proceedings must be based upon the state of affairs at the date of that decision. Let me take an example far removed from this case. Suppose the husband of a tenant causes extreme nuisance to neighbours, but the husband dies between the date of the council's notice under section 128(3) and the date of the review. It would be absurd for the Review Board to ignore the husband's death and base its decision on a state of affairs which no long exists.
41. I therefore reach the conclusion that the Review Board was quite entitled to have regard to events occurring both before and after 18 October 2000. Accordingly, the claimant's third ground of attack fails.

Ground (4) -- the standard of proof

42. In her briefing note, Mrs Tovey directed the Review Board as follows:

"The Review Panel has to decide whether the council has made its case 'on the balance of probabilities' (ie the civil burden of proof). The Panel does not have to be satisfied that the council has proved its case 'beyond all reasonable doubt'."

43. In paragraph 4.1 of its decision the Review Board held that the alleged incidents were "more likely than not to have taken place". Mr Egleton submits that the Review Board departed from Mrs Tovey's direction of law and applied the wrong standard of proof. I reject this submission. Mrs Tovey gave a correct direction of law to the Board members. The Board members followed that direction and expressed their conclusion in simple language. Accordingly, the claimant's fourth ground of attack fails.

Ground 5 -- failure to consider the claimant's personal responsibility

44. Mr Egleton draws attention to the wording of tenant's obligation No 6 in the claimant's Tenancy Agreement. The tenant is only in breach if she "allows" other persons at the property to commit a nuisance. Mr Egleton submits that the Review Board simply considered whether the alleged incidents occurred, not whether the claimant "allowed" them to occur.
45. If the alleged incidents of nuisance were isolated events, there might be some force in this argument. However, the course of conduct as found by the Review Board necessarily means that the claimant allowed the incidents to occur. For perfectly understandable reasons the claimant continued to have her children living with her, despite their repeated habit of causing nuisance to neighbours. Even if on occasions the claimant's family were victims of crime, as Mr Egleton submits, that does not change the overall picture. Accordingly, the claimant's fifth ground of attack fails.
46. I now come to the further matter which troubled me and which I raised during argument. Section 129(6) of the 1996 Act requires the council's review to be carried out before the date specified in the notice pursuant to section 128(4). In this case the date specified was 9 October 2000. However, the second Review Board hearing took place some seven months after that date. Does that make the Review Board hearing a nullity? I have come to the conclusion that it does not for four reasons:

(1) A variety of circumstances might occur which would extend the review beyond the specified date. Some of those circumstances would be in the control of the landlord, some would not. For example, the tenant may apply on good grounds for a postponement of the hearing under Regulation 8 of the 1997 Regulations; or an adjournment may be ordered for good reason under Regulation 9, with consequential delays. It would be absurd if events of this nature rendered the review process invalid.

(2) The statute does not specify any consequence for non-compliance with section 129(6). If Parliament had intended a breach of section 129(6) to disable the landlord from reviewing his decision to bring proceedings, Parliament would surely have stated expressly such a drastic consequence.

(3) Even the first review hearing did not comply with section 129(6), as has been pointed out in Part 2 of this judgment. Yet no one suggests that the first review hearing was invalidated because of that particular breach.

(4) If breach of section 129(6) makes a review impossible, then the procedure for terminating introductory tenancies becomes prolonged and repetitive.

47. I therefore conclude that the second Review Board hearing was not invalidated, even though it took place some time after the date specified in the council's notice.
48. Finally, some reference should be made to the claimant's failure to attend or be represented at the hearing. I have carefully considered the correspondence passing between solicitors which preceded that hearing. This correspondence discloses no good reason for the claimant not to attend the hearing or be represented. It can be seen from Mrs Tovey's note that the Review Board considered this aspect of the matter and decided to proceed in the claimant's absence. The Review Board was entitled to take that decision under Regulation 7 of the 1997 Regulations. Mr Egleton on behalf of the claimant accepts that he cannot challenge that decision.
49. Let me now draw the threads together. Each of the attacks or possible attacks upon the Review Board hearing of 17 May 2001 is unsuccessful. Accordingly, my answer to the question posed in issue 2 is "Yes".

Part 6 -- Compliance with Article 6 of the Convention

50. In this part of the judgment I address issue 3. Does the review procedure contained in sections 128 and 129 of the 1996 Act comply with Article 6 of the European Convention on Human Rights?
51. On this issue the defendant starts with a considerable advantage. Longmore J (as he then was) addressed this very question in Johns v Bracknell Forest District Council (21.12.00). Longmore J held that the review procedure is not incompatible with Article 6 of the Convention.
52. Mr Egleton was not deterred by Longmore J's decision in Johns. Nor was he deterred by the fact that the procedure for obtaining a declaration of incompatibility, contained in section 5 of the Human Rights Act 1998, had not been followed in the present case. Mr Egleton submitted that the only method of challenging a review board's decision is by a claim for judicial review in the Administrative Court. The Administrative Court's only power is to quash the decision and remit the matter to the Review Board. That is inherently illogical.
53. I reject the argument put forward by Mr Egleton for the reasons given by Longmore J in his judgment, in particular at paragraph 36. Accordingly, my answer to the question posed by issue (3) is "No".

Part 7 -- The Appropriate Remedy

54. In my view, the proper remedy in this case is a declaration recording the precise extent to which the claimant has succeeded in her claim. Subject to any submissions of counsel as to improvement of the wording, I propose to make the following declaration:

"It is declared that: (1) the Review Board hearing on 18 October 2000 was not an effective review of the council's decision to seek possession for the purposes of section 129 of the Housing Act 1996; (2) the Review Board hearing on 17 May 2001 was an effective review of the council's decision to seek possession for the purposes of section 129 of the Housing Act 1996."

Part 8 -- Should the Stay on the Warrant for Possession continue?

55. The warrant for possession was issued on 18 January 2001. On 6 February 2001, District Judge Field stayed the warrant until 16 February. On 16 February, District Judge Murphy stayed the warrant until the determination of the application for permission to apply for judicial review. On 20 March, Richards J stayed the warrant pending determination of the claim for judicial review. Accordingly, the stay imposed by Richards J comes to an end this morning.
56. Are there any grounds for granting a further stay of execution? Clearly the stay should be continued whilst any appeal or any application for permission to appeal against my judgment is in progress.
57. Let me now put on one side the question of any possible appeal and consider whether the council should in principle be debarred from enforcing its order for possession. Mr Egleton submits that if, as I have now held, the October review was invalid, but the May review was valid, then the council cannot enforce its existing order for possession. That is because possession proceedings were begun, and indeed completed, before the effective review hearing was held. Accordingly, the council must begin fresh proceedings in the County Court and obtain a fresh possession order. On this hypothesis Mr Egleton accepts that the claimant would have no defence to those fresh possession proceedings.
58. Mr Straker's submissions are to the opposite effect. He contends that the service of the council's notice on 5 September 2000 entitled the council to begin possession proceedings on 24 October. Even if the council had manifestly failed to perform its review obligations under section 129 of the 1996 Act, that would not give rise to any defence in the possession action. The Deputy District Judge would still have been obliged on 24 November either to adjourn the hearing for a period or to make a possession order. In those circumstances the claimant's only remedy would have been a collateral attack on the County Court proceedings by means of judicial review.
59. In support of his submission, Mr Straker relies upon the decision of the Court of Appeal in Avon County Council v Buscott [1988] 1 All ER 841. Accordingly, submits Mr Straker, the possession order made on 24 November 2000 was, and remains, a valid order. There were proper grounds for a collateral attack upon that decision by means of judicial review proceedings at any stage up to 17 May. However, the effective review hearing on 17 May 2001 brought to an end the claimant's grounds for a public law challenge. Accordingly, the claimant can now enforce the possession order made last November.
60. I have come to the conclusion that Mr Straker's submissions on this issue are correct. I reach this conclusion for four reasons:

(1) The only restrictions on the County Court entertaining possession proceedings are those specified in section 128(1) and section 128(5) of the 1996 Act. There is no prohibition upon possession proceedings in the County Court running in parallel with any extended period of review by the landlord.

(2) If Mr Egleton's contention is correct, then time and money must be devoted to a second possession action in the County Court, which (as Mr Egleton concedes) is a pure formality with only one possible outcome.

(3) In those rare cases where the County Court makes a possession order before the statutory review is complete, the tenant can be protected by staying the warrant for possession until completion of the review. That has happened in the present case.

(4) Richards J took the view on 20 March, after an unusually long permission hearing, that the council's earlier mistakes could be cured by the holding of a further review. This conclusion is persuasive, although not binding upon me.

61. For all these reasons I conclude that, subject to any question of appeal, it would not be right to continue the stay upon the warrant for possession.

MR STRAKER: In those circumstances I rise to ask that your Lordship should, apart from the declaratory relief that your Lordship has indicated (as to the terms of which I do not wish to make any observations), your Lordship should otherwise dismiss the application for judicial review. I would respectfully suggest that the appropriate order for costs should be that, as far as the costs incurred subsequent to the decision of Richards J (ie subsequent to that date on which it became apparent that there would be a full hearing), that those costs should be borne by the claimant, there being an order for the determination of such costs that it is reasonable for the claimant as an assisted person to pay to be postponed generally pursuant to the relevant Regulations. I take that language from the language employed on another occasion before Richards J.

My Lord, that is what I would respectfully suggest as far as those particular matters are concerned. Plainly, if appropriate, I will have to address your Lordship as far as leave to appeal is concerned and a stay, but I leave that matter over for the moment, if I may.

MR EGLETON: My Lord, as far as the costs aspect is concerned, if I can deal with that first, in my respectful submission, the claim for the defendants would have had more force if they had accepted that the hearing on 18 October was an invalid hearing and we had concentrated solely on the 18 May issue. It was not accepted at any stage by the defendants that the 18 October hearing was an invalid hearing. Even in the skeleton arguments close to this hearing, that issue was rather skated around. All that is said is that the 18 October hearing is irrelevant. But there is no concession that that was an improper hearing. So the claimant was perfectly justified in seeking judicial review. That application was firmly opposed by the defendants. There were attempts made to get the claimant's Legal Aid Certificate discharged and matters of that sort. So it was fiercely resisted by the defendants in this case. Your Lordship has found that, in part, the claimant's claim was justified.

The question then arises as to what happens after 18 May when there is, as your Lordship has found, a proper hearing. As your Lordship knows, we contended, unsuccessfully, that that hearing was defective, and we also relied on the Article 6 point. The Article 6 point was always going to be considered. In my respectful submission, the overall result is something of a scoring draw and I would say that the appropriate order to make is no order as to cost. The claimant has the benefit of public funding assistance. Her means are not great, as your Lordship can possibly imagine. So I would ask that there be no order as to costs.

MR STRAKER: My Lord, the only point I would make by way of response to that is this. Plainly, these sorts of circumstances can arise – by which I mean the generality in which something potentially has gone wrong at a review board hearing and consequently someone comes to the Administrative Court. In those circumstances, my Lord, the council who may be subject to attack ought not to feel in any sense inhibited about being able to say: "Very well, we will have another review board hearing because we would rather be there than here in front of the Administrative Court". The only way in which one can seek to secure that is if the end result is one whereby if the subsequent review board hearing is shown to be satisfactory and is shown to be clearly in accordance with what was on offer before Richards J is that if the costs position reflects that. So I would respectfully say that my learned friend can, so to speak, take his scoring draw up until Richards J, but thereafter the goals have been scored by us (if I can continue, out of season, the footballing metaphor), and that we ought to have the costs order, subject to the proper requirement so far as the protection which is given to the legally supported claimant.

MR JUSTICE JACKSON: On the issue of costs, Mr Egleton for the claimant submits that the proper order is no order for costs. He puts forward this submission because he has succeeded on one issue in the case, namely he has demonstrated that the review hearing in October 2000 was invalid, but he has been unsuccessful on other issues.

Mr Straker, for the defendant, submits that there should be no order for costs up to the date of the hearing before Richards J in March 2001, but that the defendant should have its costs after that date because it held a valid review hearing and successfully cured the earlier administrative mishaps.

In my view, Mr Straker's submission would have considerable force if the council after 20 March 2001 had formally conceded that the October hearing was invalid. No concession to that effect has been made by the council in its skeleton argument before this hearing. It is true that Mr Straker, with judicious wisdom, spent little effort during the hearing in defending the validity of the Review Board hearing in October 2000. Nevertheless, it remained as an issue for this court to resolve. The claimant's counsel developed argument and cited authority in support of his attack upon the hearing of October 2000, and the claimant succeeded in her contentions.

I therefore take the view that it would not be right to reward the defendant with costs for those issues on which it was successful, and to make no order for costs on those issues where the claimant was successful. I accept Mr Egleton's submission that, looking at the case overall, the proper order is no order for costs.

MR EGLETON: My Lord, there are two other issues. First of all, can I deal with the easier one possibly about an extension of time in which to seek permission to appeal? The normal time is fourteen days. As your Lordship knows, the Bracknell Forest case is due to commence next Monday. It may well be that we will not have the result of that case by the end of next week, and that it might be reserved for a certain period of time. What I would ask is that there be an extension of time to seek permission to appeal, if your Lordship does not grant it in a moment, to 28 days? That is the first part.

That is slightly out of order because my main application is to seek permission to appeal, and I formally seek that permission. What I would say in support of that contention is that this case does raise important matters of law in relation to introductory tenancies. Although the Act is dated 1996, it does not appear to have attracted the attention of the court a great deal, and it is clear that there are misconceptions about the review procedure. So I would respectfully submit that it would be appropriate for a higher court to deal with the whole new procedure as well as the Article 6 point. That is my application.

MR STRAKER: My Lord, as far as the Article 6 aspect is concerned (if I can describe it in that way), the position as far as next week, as your Lordship is aware, is that there is due to be heard the appeal in the Johns case, for which Keene LJ in January or thereabouts granted permission to appeal and he restricted the permission to appeal solely to the Article 6 point in Johns. Your Lordship will have seen that Article 8 and Article 14 points were also raised in that case, but he restricted it.

In the same week as Johns is to be heard, there is also to be heard a case from Reigate and Banstead County Court, the details of which I am not so familiar with as I am not involved in that case, though I have discussed the matter with counsel who is. That case is going to follow on from the Johns case and is particularly concerned with the role of the County Court Judge at the possession stage – ie, when the possession proceedings are before him can he look beyond merely the stamp (if I may so describe it) which the Court of Appeal previously said in the Manchester City Council case he is restricted to).

MR JUSTICE JACKSON: What is the name of the Reigate case?

MR STRAKER: My Lord, I am afraid I cannot remember the name of the claimant in that case. Mr Arden appears for the District Council Reigate and Banstead. It concerns proceedings taken by them in the County Court, but I am afraid the name of the actual individual tenant concerned escapes me for the moment.

My Lord, that is the position as far as next week is concerned before the Court of Appeal. It would therefore be, I suspect, difficult for me to say to your Lordship, as far as permission to appeal is concerned in connection with the Article 6 matter from your Lordship, that the matter was one which quite plainly was beyond the pail as far as argument or anything of that sort is concerned because Keene LJ granted permission and a week is going to be devoted to it.

My Lord, I would respectfully suggest, however, that the position is one whereby the better way of dealing with the matter than for your Lordship to grant permission to appeal would be to leave it over to the Court of Appeal to consider the matter as to whether permission should be granted. If the Court of Appeal decide favourably to the councils, then the matter will be disposed of in that way and the single Lord Justice who considers the matter will no doubt easily be able to consider the matter. If it is otherwise, then the course would follow a different pattern. But if your Lordship were to grant permission today, then that permission would be outstanding even if the councils are successful next week because your Lordship cannot really, I imagine, grant some sort of permission nisi or anything of that sort. Your Lordship either grants permission or refuses permission. So in those circumstances I would suggest that the better course is to refuse permission.

That has just touched upon the Article 6 side of the matter. The other side of the matter is the conventional judicial review with the added ingredient (if I may call it that) of the point which your Lordship raised – the rather interesting point that your Lordship raised as far as the consequence of 129(6). In regards to that, I would respectfully submit that once again it would not be appropriate for your Lordship to grant permission to appeal because the position, I respectfully submit, is plain from both what your Lordship has said and from the terms of the statute, and of course in the judgment your Lordship did not record section 127(2) – and there is no reason why your Lordship should have done, but that of course further refers to the fact that the County Court has to make the order unless the provisions of section 128 apply. My Lord, I would respectfully submit that that matter does not require an exercise in permission to appeal being granted. It does not justify it on either of the bases which provide for permission to appeal.

My Lord, that is all I would seek to say about permission to appeal. I apologise for the rather long-winded way of saying I resist the application for permission to appeal.

MR JUSTICE JACKSON: I refuse permission to appeal for two reasons. First, related issues will be considered shortly by the Court of Appeal in Johns v Bracknell Forest District Council and in another appeal (the name of which counsel are unable to furnish me with), which is an appeal from the Reigate County Court. Second, the question of permission to appeal in this case is better considered by the Court of Appeal after the outcome of those other two appeals is known.

I turn to Mr Egleton's second application, which is for an extension of time in which to appeal to the Court of Appeal in the present case. Mr Straker has not addressed any argument to me in opposition to that application. Mr Egleton makes the entirely sensible point that he and his instructing solicitors will need to consider the outcome of the Court of Appeal's decision in Johns v Bracknell Forest District Council. I have no doubt that they will also wish to consider the outcome of the decision of the Court of Appeal in the matter which is proceeding from the Reigate County Court. In those circumstances I grant the extension which Mr Egleton seeks, namely an extension of time to 28 days in which to seek permission to appeal to the Court of Appeal.

MR EGLETON: My Lord, just to clarify, in the meantime there is a stay on the warrant of execution until that period of time has elapsed?

MR JUSTICE JACKSON: Yes. The warrant of execution is stayed for 28 days from today and, if there is an application for permission to appeal to the Court of Appeal, until the outcome of that application or (if successful) any appeal to the Court of Appeal. Do counsel wish to improve that wording?

MR STRAKER: My Lord, the only observation I would make in connection with that, which is in addition rather than fresh wording, would be to introduce some requirement in terms of the appellant proceeding with any application for appeal expeditiously because of course we have a concern that your Lordship will readily appreciate, vis-a-vis the neighbours and so forth, we do not want an appeal put in and then matters dragging on. It can either be dealt with by an obligation to use best endeavours to pursue that as quickly as possible so that the single judge deals with it, or alternatively to provide that there should be some liberty to the council to make application for the stay to be removed if it becomes apparent that there is a real lack of progress in connection with that matter because I emphasise the concern which is felt vis-a-vis those neighbours.

MR JUSTICE JACKSON: I propose, subject to any observation of Mr Egleton, to add the words "provided that the claimant pursues any application for permission to appeal with reasonable expedition".

MR STRAKER: I am much obliged to your Lordship.

MR EGLETON: My Lord, I have no objection to that wording. The final point as far as the claimant is concerned is this. As I have already indicated, the claimant has public funding assistance. My Lord, I would ask for public funding assessment of the claimant's costs?

MR JUSTICE JACKSON: Yes, certainly.