Case No.LB121066
CO/1259/2002
Neutral Citation Number: [2003] EWHC 222 Admin
IN THE HIGH COURT OF JUSTICE                                        
QUEEN'S BENCH DIVISION                                                        

Royal Courts of Justice
Strand, 
London WC2A 2LL

Tuesday 18 February 2003.
Before:

MR. JUSTICE CRANE

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BETWEEN:
ALAN FORBES
Appellant
and

LONDON BOROUGH OF LAMBETH
Respondent
AND BETWEEN:
R. (ALAN FORBES)
Claimant
and

LONDON BOROUGH OF LAMBETH
Defendant
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(Transcript of the Handed Down Judgment of
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Mr.Jamie Burton (instructed by Jockelson McNulty & Co.) appeared for Alan Forbes.
Miss Kerry Bretherton (instructed by London Borough of Lambeth Legal Services) appeared for London Borough of Lambeth.

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Judgment
As Approved by the Court
Crown Copyright ©

JUDGEMENT
(subject to editorial corrections)

1.	This case raises issues relating to an introductory tenancy granted under Part V of the Housing Act 1996 on 20 March 2000 by the London Borough of Lambeth ("the Council") to Mr.Alan Forbes ("the Tenant").
2.	There are before the court two matters.  The first is an appeal and cross-appeal from a decision of Mr.Recorder Atkins at Bow County Court to adjourn proceedings by the Council for possession of the premises.  The second is an application for judicial review of the Council's decision to seek possession of the premises.

The legislation

3.	The Act introduced in Part V (entitled "Conduct of Tenants") an option for a local housing authority to operate an introductory tenancy scheme: section 124(1).  The Council so opted.  By section 125(1) a tenancy remains an introductory tenancy until the end of a trial period of one year, subject to certain provisions not relevant here and also subject to section 130.   Under section 130, if the landlord begins proceedings for possession, the tenancy remains an introductory tenancy, in the absence of certain events not relevant here, until the date on which the court orders possession or until the proceedings are otherwise finally determined.
4.	Section 127 reads
"(1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling-house.
The court shall make such an order unless the provisions of section 128 apply." (My emphasis).
The relevant court will usually be the county court, since section 138(3) deprives a person who takes proceedings in the High Court of any costs.
5.	Section 128 is crucial for present purposes:
"(1)  The court shall not entertain proceedings for the possession of a dwelling-house 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.
…
(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 a 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".  
6.	Section 129 deals with the review of a decision:
"(1)  A request for 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.
…
(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 to the date after which proceedings for the possession of the dwelling-house may be begun".
7.	The regulations made under section 129(3) are The Introductory Tenants (Review) Regulations 1997.  The tenant has a right to a hearing: regulation 2.  By regulation 3 a review is to be carried out by a person not involved in the decision to apply for an order for possession and if a decision of an officer is to be reviewed by another officer, the latter must be senior to the former.  Provision is made in regulations 8 and 9 for the postponement or adjournment of a hearing.
8.	Section 129(5) refers to a decision on the review to confirm the original decision.  Obviously the review may not result in such a decision.  However, neither the Act nor the Regulations specify in terms how any other outcome is to be described. 
9.	Section 130 makes it clear that the serving of the notice and the taking of proceedings are separate stages.
10.	Neither the Act nor the Regulations provide in terms for an outcome in which the decision is confirmed, but the implementation of the decision is suspended or deferred.  Circular No.2/97 "Part V of the Housing Act 1996 - Conduct of Tenants" in paragraph 20 points out that suspended possession orders are not appropriate for introductory tenancies. It continues:
"Applications for possession must lead to eviction.  Landlords may, therefore, wish to devise their own procedures (such as the collection of rent plus arrears by instalments) for introductory tenants to replace the use of suspended possession orders."
11.	It is now clear from the decision of the Court of Appeal in Stone v. Cardiff City Council [2002] EWCA Civ 298, to which I shall return, that a decision may be confirmed on review, but the taking of further action be suspended or deferred.

The facts

12.	The Council by a tenancy agreement dated 3 March 2000 granted an introductory tenancy to the Tenant, the tenancy to commence on 20 March 2000.  I am informed that the Tenant was a vulnerable homeless person for the purposes of Part VII of the Act and was 62 years old.
13.	On 13 October 2000 the Council served a notice dated 10 October on the Tenant.  The relevant parts read as follows:
"…
2.  The Mayor and Burgesses of the London Borough of Lambeth intend to apply to the Court to make an order for requiring you to give up possession of [the premises] … .
4.  Possession is being sought on the grounds that you have failed to observe or perform an obligation of the Introductory Tenancy which was granted to you on … 20th MARCH 2000.
5.  Particulars of the breaches are as follows:
In breach of Clause 21 of Lambeths Tenancy Conditions, March 2000.  The premises is [sic] being used for selling of drugs and for immoral purposes.  On or before 28th September 2000 the premises was raided by the police and they found drugs on the premises.  On various dates and times people have been observed entering property".
14.	The notice indicated that proceedings would not be begun until after 13th November 2000.  It duly informed the Tenant of his right to request a review and about taking advice, as required by section 128(6) and (7).  It was accompanied by a letter dated 12 October giving further information.  It is conceded by Mr.Burton on behalf of the Tenant that the notice complied with section 128.  Had no review been requested and had proceedings been taken, the court would have been obliged to grant possession.
15.	However, the Tenant did request a review.  Although it is not entirely clear to me precisely how the review was conducted, no point is taken about that.  The Council wrote to the Tenant as follows on 23 October ("the review letter"):
"RE: DECISION NOT TO TERMINATE YOUR INTRODUCTORY TENANCY
The Council has decided not to proceed with terminating your tenancy but will be monitoring your tenancy for a period of 12 months and then will review the situation and advise you.  You will continue as an introductory tenant during this period.
Any further breaches of your tenancy agreement may result in the loss of your home.
You should be aware that failure to to [sic] keep an agreement to clear your rent arrears, or your eviction for a breach of the tenancy condition, could lead to publication of your name and address in the local press and elsewhere.
If you wish to discuss this matter please contact me".  
16.	It is accepted by Miss Bretherton on behalf of the Council that the letter was a standard letter.  It was wrong in law in saying that the Tenant would continue as an introductory tenant for a period of 12 months, since it could not continue beyond the trial period (unless the period was extended by the taking of proceedings).  Parts were not relevant to this Tenant.  However, those particular defects are not important.  What is highly material is its interpretation.
17.	The next development was the Council's letter dated 9 March 2001 ("the March letter"):
"Termination of Introductory Tenancy
Unfortunately this office continues to receive complaints about noise and disturbance in and around your flat caused by your visitors.
This being the case I regret that I have no alternative but to continue the legal proceedings commenced when the Notice of Proceedings for Possession was served.  The Council's legal section has now been instructed to apply to the Court for a possession order which could lead to your being evicted from your home".
Strictly, it was inaccurate to refer to the continuation of legal proceedings, since no legal proceedings had yet been commenced.
18.	On 14 March 2001 proceedings were issued in the Lambeth County Court.  After several adjournments, they were heard by Mr.Recorder Atkins at Bow County Court on 18 February 2002.  He gave judgment on 22 February, having received written submissions about the decision in Stone, which had just been reported in The Times.  Thus he did not have the opportunity of considering a full report of the judgment in Stone.  He rejected the Tenant's primary argument, that the court had no jurisdiction to grant an order for possession.  However, he agreed to adjourn the proceedings to allow the Tenant an opportunity to apply for judicial review.  
19.	The Tenant applied for permission to apply for judicial review on the ground that the relevant decision was taken on 9 March 2001.  Permission was granted on the papers on 12 July 2002.  The Tenant also applied for permission to appeal from the decision of Mr.Recorder Atkins.  At some stage the Council cross-appealed.  Directions were given to bring the two matters together.  When the matter was before Goldring J. on 12 November 2002 a transcript of the judgment was not available, but he gave permission to appeal.  By consent I have transferred the appeal from the Chancery Division to the Queen's Bench Division.

The authorities

20.	In Manchester City Council v. Cochrane [1999] 1 WLR 809 Sir John Knox (at 821B) in the Court of Appeal accepted that Part V of the Act 
"was designed to enable a housing authority to get rid of undesirable tenants quickly, not only in the interests of the housing authority so as to enable it to reallocate the premises to more suitable candidates for housing, but also in the interests of neighbouring tenants of the housing authority who often suffer from the nuisances and disturbances caused by unruly tenants."
21.	Although the Court remarked (at 818H) on the remarkable constriction of the court's powers, it was held that under sections 127 and 128 the county court had no power to entertain a defence based on a denial of allegations in the council's notice.  The Court accepted that the county court would have the power to grant an adjournment to permit the tenant to apply for judicial review, while regarding such a procedure as cumbersome.  However, despite the urging of the Court to the legislature to grant to the county court powers similar to those available under Part VII, no such amendment has been made.
22.	After the Human Rights Act 1998 came into force, the Court of Appeal decided R. v. Bracknell Forest Borough Council and the Secretary of State for Transport, Local Government and the Regions, ex p. McLellan (2001) 33 HLR 989, [2001] EWCA Civ 1510.  The Court held that Article 6 of the European Convention on Human Rights is engaged when a local housing authority is asked to review its decision to seek an order for possession.  So also is Article 8.  Although the review conducted by the local authority is not sufficiently independent or impartial to comply with Article 6 or to provide adequate protection against a breach of Article 8, the decision-making process must be considered as a whole.  The review procedure itself is quasi-judicial and contains a number of safeguards.  That procedure, combined with the availability of judicial review, renders the scheme "at the macro level" compatible with the ECHR.  
23.	Two aspects of the reasoning in McLellan require emphasis.  First, the Court in considering Article 8 laid stress on the obligation on the local authority in the notice and in the review decision to give reasons.  And the Court (at 101) stressed that it should be the norm for the local authority to spell out in affidavits how the review procedure was operated, something not done in this case, although no point has been taken about this.  Secondly, Waller LJ (at 97) described the nature of the decision taken by the local authority:
"If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed that at first sight seems to raise issues of fact.  But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place.  The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy".
24.	He went on (at 101):
"Thus, it is my view (i) that there is no reason to hold that the review procedure cannot be operated fairly, and (ii) that there is no reason to hold that the remedy of judicial review will not provide an adequate safeguard to tenants enabling them to challenge any unfairness and/or any infringement of their Convention rights particularly under Article 8.
102.  Thus, as it seems to me, it cannot be said that section 127 or the scheme at the macro level is incompatible with Article 6".
25.	I turn to the decision in Stone, on which Miss Bretherton places reliance and which Mr.Burton seeks to distinguish.   The council in that case served a notice of proceedings, giving rent arrears as the reason for deciding to apply for an order.  A review took place.  The precise outcome is important.  At the hearing of the review the tenant was told
"… we should take the tenancy from you, but you can keep it on condition that you pay the liable rent plus … arrears … each week without fail"
      and
	"… If you miss a week, you will lose the tenancy and we will take you to court for the rent arrears".
      And a letter was sent on the following day which said
	"I would confirm that the decision to terminate your tenancy by serving you with a Notice is upheld, however, the Panel decided to suspend action at this stage on condition that the weekly collectable rent and £3.00 is paid each week without fail.
	…
Should any payments not be made, an application for possession will be made to the County Court…".
26.	The arrears then fluctuated but by the commencement of proceedings were higher than at the time of the review.  The tenant admitted that she was in breach of the condition as a result of which she was permitted to remain as tenant after the review hearing.
27.	In her judgment (at 28) Arden LJ referred to the fact that the Act does not refer to the possibility of a series of notices.  The basis of the council's decision to apply for an order for possession was clearly stated to be failure to make prompt payment of the full amount of rent.  She went on
"29.  As I see it, that reason does not change in substance in this case.  What happened was that the appellant and the council made an agreement which, so long as it was kept, would enable the appellant to remain as an introductory tenant (with all the advantages that that would bring) but she had to pay £3 off the arrears and the rent in full.  Unfortunately she failed to keep her side of the agreement. …"
30.  As I see it, there was no substantial difference between the ground on which the landlord originally gave notice and the ground on which it ultimately applied for possession.  It was the failure to pay rent promptly in full.  … So, as I see it, the landlord could rely on the original notice.
31.  Different considerations might arise if a local authority's reasons for seeking possession change, but that is not this case and I would prefer not to express a view on that situation until the facts arise. …".
28.	Arden LJ (at 37-38) rejected the submission that there should be a further review hearing on other decisions taken by the council.  That would lead to the possibility of a local authority having to serve numerous notices.  She feared that the procedure for terminating an introductory tenancy would become very formal.  That might discourage landlords from allowing introductory tenants to remain as tenants while they were given a second chance.  Judge LJ (at 40) feared that "housing authorities would almost inevitably be driven to adopt a less humane, more rigorous, unrelenting approach to introductory tenants who failed to pay rent when it was due".  He described the council (at 41) as having "deferred proceedings to bring the tenancy immediately to an end".
29.	Mr.Burton made submissions on the basis of the Parliamentary debates leading to the enactment of Part V of the Housing Act 1996.  I do not consider that it is necessary to consider that material in order to construe the Act.  Nor do I consider that the authorities cited by both counsel relating to other statutory provisions governing other kinds of tenancy are in the end of assistance.

Discussion

30.	Mr.Burton submits that the effect of the review letter was that the original decision to take proceedings was not confirmed, indeed was reversed.  He submits that thereafter there was in existence no decision to take proceedings. Even if there was, he submits that there was a new decision contained in or leading to the March letter.  He submits that section 128(3) requires that the notice of proceedings shall set out the reasons for "the landlord's decision to apply" for an order.  The relevant decision was the March decision.  No valid notice was served in relation to that decision.
31.	Miss Bretherton submits that the original notice was never withdrawn.  The review letter, however it is to be construed, did not quash or reverse the original decision.  There never was a new decision.  Hence the Council were entitled to rely on the original, valid notice when proceedings were in fact commenced in March 2001.
32.	There is no doubt, in the light of Stone, that a council may uphold a notice but suspend or defer the actual taking of proceedings.  In my view it is necessary to decide whether that is what the Council did in the present case.
33.	In support of Miss Bretherton's submissions are the reference to future monitoring and a review of the situation, although that reference becomes confused by the reference to 12 months.  She is also able to point to the words "further breaches".  However, the decision the Council had to make was not, as Waller LJ pointed out, whether there were breaches, but whether to take proceedings.  Mr.Burton is able to point to the words in the heading "DECISION NOT TO TERMINATE" and the next words "The Council has decided not to proceed with terminating your tenancy".  
34.	It was the Council's letter.  They chose how to express it.  The Tenant was entitled to be notified "of the decision on the review", with reasons.  In my judgment the review letter did not have the effect of the letter in Stone, which made it very clear that the decision was being upheld. Here the original decision was not confirmed.  I consider on the contrary that the natural meaning of the letter to a tenant receiving it was, as the heading in capital letters indicated, that there had been a decision not to terminate the tenancy after all.  There was in reality a decision to reverse or quash the original decision, albeit with a warning about future conduct.  This conclusion is supported by the absence of any reasons, which, if the decision had been confirmed, were required by section 129(5).   I do not accept the submission that a notice remains valid unless expressly withdrawn or that a decision remains unless expressly quashed or reversed.  No particular words are laid down and the natural meaning of the words must prevail.
35.	I do not accept Miss Bretherton's submission that the March letter simply recorded an "administrative act", namely the instructing of the legal section.  If my construction of the review letter is correct, there must have been a new decision based on the continued complaints, although no doubt taking into account the past history as the Council saw it.  
36.	I prefer Mr.Burton's analysis to the effect that the focus must be first on what is the decision referred to in section 128(3) to Miss Bretherton's analysis to the effect that the focus should be on the notice.
37.	It follows that if one turns back to section 128(3), the notice relied on did not set out the reasons - or certainly not all the reasons - for the relevant decision to apply for an order.  
38.	The learned Recorder considered that he was being asked effectively to add a substantial gloss on the wording in the Act.  I do not consider that to look for the relevant decision - or, to put it another way, an extant decision - involves in a real sense inserting a word into the section.  Section 128(3) in my view permits, indeed requires, the court to have regard to the decision to take the proceedings that are before the court.  If there is a series of decisions of the local authority, that may in an appropriate case lead to the court considering which decision is relevant.  Moreover if I am correct in holding that the original decision had been reversed or quashed on review, there was in truth no extant decision to take proceedings until March 2001.
39.	Even if ordinary principles of interpretation did not lead to this result, in my view the Human Rights Act 1998, section 3, would lead to that result.  Section 3 reads:
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights".
40.	The basis on which the Court of Appeal held the scheme to be compatible with Articles 6 and 8 in McLellan was that there is both a review procedure and the availability of judicial review.  However, if Miss Bretherton's submissions are correct, once a notice complying with section 128 was served, a council would have carte blanche (subject only to judicial review) to take proceedings at any time and on any grounds they wished, even after a review in which the tenant was successful.
41.	On this reasoning it is not necessary to decide whether the reasons given in March 2001 were "substantially different" from those given in the original notice.  That would, however, be relevant if the review letter were properly to be regarded as confirming the original decision but suspending or deferring its operation.  I am inclined to think that the reasons are substantially, or at least significantly, different.  I say "significantly" because although the words "substantial difference" were used, in effect twice, in Stone, Arden LJ in paragraph 31 ultimately reserved her view on what would happen "if a local authority's reasons" changed.  I do not think that the words "substantially different" were necessarily being used to describe the precise test to be applied in all cases.  If I am not bound by the wording used in Stone, I would apply the test "significantly" different.  However, if the relevant decision were the original decision, a further notice would not be required by section 128 itself if the later action were merely an implementation of the original decision for different reasons.
42.	McLellan emphasised the importance of reasons.  The essence of the original reasons was the selling of drugs and the use of the premises for immoral purposes, the reference to people entering the property suggesting that this provided some further evidence.  The essence of the reasons in the March letter was disturbance in and around the flat caused by visitors.  It is true, as Miss Bretherton submitted, that both are examples of anti-social behaviour, contrary to the same term of the tenancy.  However, the original reasons could have been true without the latter, and vice versa.  It is not even as if the March letter clearly indicated that the original reasons were still relied on.  
43.	In such circumstances, would the Council's decision require a further notice and a further opportunity for a review in order to be compliant with Articles 6 and 8, even if section 128 did not so require?  I consider that at least an opportunity for review would be required.  The decision of the Court of Appeal in McLellan proceeded on the basis that the review procedure, combined with the availability of judicial review, rendered the scheme of the Act compliant with Articles 6 and 8.  That necessarily involved an opportunity to the Tenant not only to question the alleged facts, but, crucially, to argue that on the available facts, that it was not reasonable to require possession.  In my judgment, where the reasons for the decision have changed, as they did here, the scheme of the Act is compliant only if the Council provide some opportunity for a further review.  It would not necessarily matter that the notice did not comply with section 128, if the substance of the allegations was conveyed and a review made available.

Conclusions

44.	For these reasons the learned Recorder's decision was in my view wrong and the appeal must be allowed.  I do not consider that my conclusion will lead to the consequences feared by Arden and Judge LJJ and by the learned Recorder.  Stone established that a council has the option of suspending or postponing the implementation of a decision.  Here the Council did not do that.  
45.	In these circumstances it is unnecessary to quash the Council's decision.  However, I should indicate that if necessary I should have done so.  I do not accept that such a decision would have been inappropriate because of delay.  It was reasonable for the Tenant to pursue the proceedings in the way he did.  The granting of permission to appeal indicated that there must have been a real prospect of success by that route.
46.	I shall consider counsel's submission on the proper orders to make.  My preliminary conclusion is that the learned Recorder's order should be varied to a refusal of possession and a dismissal of the proceedings.  I realise that the consequence will be that the Tenant will not then be removable under the procedures of Part V.  That appears to be the unavoidable conseqence of the course adopted by the Council.   

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MR JUSTICE CRANE:  I am handing down the judgment this morning.  In response to one comment counsel will probably notice that I did slightly alter paragraph 41.
MR BURTON:  My Lord yes.
MR JUSTICE CRANE:  As far as the order is concerned, Miss Bretherton, you kindly provided a suggested order.
MISS BRETHERTON:  My Lord I have had an opportunity to discuss the two draft orders with my learned friend.  The position is that clearly the simpler and shorter order is that of judicial review proceedings. I think it is correct to say that my learned friend agrees that as drafted ‑ yes he is nodding. Subject, of course, to the Court's views.
With regards to the longer order in relation to the appeal proceedings, the position there is that the heading clearly ought to read "appellant and respondent".
MR JUSTICE CRANE:  Yes.
MISS BRETHERTON:  The case number is correct.  There is certainly no dispute with regard to costs provisions.  The second number in the order is something that I do not think that my learned friend has strong views upon.  He properly mentions that of course there is a provision in the provisions of the legislation, which provides that proceedings are not finally disposed of until the time for any period for appealing expires.  Clearly, my client's concern would be that, if they were to take the view that they wanted to apply further, they would not want those proceedings to become academic and pointless on the basis that the tenancy becomes a secure tenancy.
Notwithstanding the protection in the legislation, I would ask for this order, because it does perhaps set out the exact wording and also means that where my clients, for example, to take a view this afternoon, upon looking at your Lordship's judgment, that they did not want to take the matter any further, then they have the right to notify the appellant immediately and the tenancy would therefore be secure with all the matters that would attract.  I have to confess that one reason why that is in my client's interest is clearly took the view they wish to proceed down, terminating a tenancy on the basis it was secure. Clearly they could not issue those proceedings until the appeal period had expired even if they were not going to go down that route were this not in the order.
My Lord, also, it just seems to set matters out fully.  So on that basis I would ask the court to include that draft, include the matters as drafted.  The third aspect of course of the case is that I do apply for permission to appeal.
MR JUSTICE CRANE:  Can we deal with that in one moment and the other matters are not controversial except for the respondent.
But something has just occurred to me in connection with what you have been saying. As the order stands, or the orders stand, the application for judicial review would be dismissed now. I suppose in the event of an appeal, that could be kept open by an appropriation appeal, would it not? 
MISS BRETHERTON:  Precisely, the position is that your Lordship made clear in the judgment is that the basis upon which you dismiss the judicial review was because it was not necessary to find for the appellant.
MR JUSTICE CRANE:  In other words, if the respondent were to appeal the civil matter, by a cross appeal, the tenant could reserve his position in relation to judicial review and keep that open if he wanted to and he was entitled to.
MISS BRETHERTON:  The only thing that might make matters simpler which is entirely a matter for the court and my learned friend is that of course one has to apply to the court at first instance. It may be that my learned friend would wish to formally make an application for permission to appeal in relation to the judicial review on the basis it would be dismissed, in order that any further matter would then automatically, were I to be successful in any permission application, be looked at by the Court of Appeal.
MR JUSTICE CRANE:  I follow that, yes. He should apply today but it is a bit academic until this ‑ I will consider the question of application of appeal in a moment. One way of dealing with it would be to say in the Administrative Court matter the application be dismissed but this order not to take effect until any time for appealing or appeal in the civil matter is finally disposed of ‑ I have not tidied up the wording of that. In other words the dismissal of the Administrative Court matter, the final dismissal would not take effect until an appeal had been disposed of. Would that achieve anything?Perhaps it would not achieve anything.
MISS BRETHERTON:  I think the difficulty would then be my learned friend would not have really anything to appeal were he to suddenly want to on the basis were I given permission.
MR JUSTICE CRANE:  He could still appeal the decision of the principle of the decision, could he not? But may be the answer is that for to leave that as it is and for me to consider the question of permission to appeal and, if I grant it, then to consider what should happen in relation to the tenant's possible appeal.  Similarly, if I were to refuse it, both applications could be made in the Court of Appeal. I make it clear for future reference that it is certainly true that I have only dismissed the judicial review proceedings because it is not necessary in view of my decision on the civil appeal and if that were to change then it might be rather different.
MISS BRETHERTON:  My Lord I entirely appreciate that.
MR JUSTICE CRANE:  That is made clear.
Just can we leave appeal for the moment.  Mr Burton, apart from the appeal point, is there anything else you want to say?
MR BURTON:  In terms of the second aspect of the order on the appeal, I do rather take the view that section 130(5) probably would take care of it. In that respect I am very much in your Lordship's hands if your Lordship feels this is the most appropriate way of making the intentions clear then certainly I am happy to oblige by that view.
MR JUSTICE CRANE:  Any doubt would it not.
MR BURTON:  Probably, yes, I cannot see it causing any problems, as it were, it would probably be a belt and braces type of approach.
In relation to the judicial review my Lord I would favour the option put forward by your Lordship because I think it probably again would be a honest reflection of what was decided today rather than leaving up to the appellant to make a rather artificial appeal if required in circumstances in the future.  I think the better order‑

MR JUSTICE CRANE:  Let me decide what to do about the Miss Bretherton's application first and then we will go from there. Miss Bretherton, what do you want to say about the question.
MR BURTON:  My Lord, the position is of course this would be a second appeal within the meaning of the CPR and on that basis not only would I have to show reasonable prospect of success but also  that the matter was of some importance. My Lord, I say the matter is of some importance because of the case of Stone and because the position is that it is absolutely essential to letters of this sort, in such cases, that a local authority have a scope to give the second chance, and the position is that really the result of your Lordship's judgment could be that, unless the express words were said, that we dismiss the application, that on that basis that the matter would be dismissed.
My Lord, I do not propose to go into huge detail because of the substance as I said in my note to your Lordship.  I am repeating matters that your Lordship has already decided against me on the substantive application.  My Lord, I would say it is a matter of significance to local authorities across the board not just my clients. On that basis it is a matter of public importance.
MR JUSTICE CRANE:  Thank you.  No, Miss Bretherton, I am afraid I am against you. Although I quite appreciate the topic is one of importance and the local authorities need to know where they stand, in my view Stone really established the principles and this case turned, in the end, on the interpretation of the review decision letter. There is no doubt that local authorities can, by appropriate wording, preserve their position. But my conclusion on the interpretation of the letter is that they did not do so here. I am afraid I do not regard this as being a real prospect of success.  So I am refusing permission to appeal. 
Now, just let us return to other questions. If you go to the Court of Appeal, and do decide for that, if there is to be an appeal. Mr Burton, why can you not in those circumstances preserve your position by appealing the order in the judicial review proceedings? 
MR BURTON:  My Lord, I do not think it is really a case of not being able to, it is really trying to decide what the most appropriate form being.
MR JUSTICE CRANE:  If they gave leave the tenant would want to take part in the appeal and would want to argue in the alternative that the judicial review proceedings should be decided in his favour. So if Miss Bretherton managed to persuade the Court of Appeal to give permission, as it were, the tenant would be there and back to the Court of Appeal. But I rather imagine they would be sympathetic to the idea, if it arose, of giving you leave.
MR BURTON:  I think that is right.
MR JUSTICE CRANE:  If they were not sympathetic that would be because they took the view for some reason it was not appropriate.
MR BURTON:  The issue of judicial review certainly would arise if, after an appeal the Court of Appeal were minded to overturn your Lordship's judgment, then it would be appropriate for the Court of Appeal to deal with judicial review there and then. The only difference therefore, on the one hand, having a similar order to that envisaged by my learned friend in respect of the appeal and allowing the appellant, an appeal on the refusal on the permission for judicial review, would seem to be one of costs really and that is all my Lord. We would be required to file respondent's notices etcetera etcetera.  It only strikes me as being slightly artificial in the circumstances because of the reasons that your Lordship has given in the judgment that your Lordship has.
MR JUSTICE CRANE:  May be. If we follow the course that I was tentatively suggesting. If the Court of Appeal were to hear an appeal and to allow it, on the County Court proceedings, you would need to appeal in relation to the judicial review in order to get an order in your favour.  At the moment you have not got an order in your favour so you need an appeal to get one.
MR BURTON:  Would that be the case, my Lord, if the order was expressed to be not to take effect until.
MR JUSTICE CRANE:  The dismissal would not then take effect until, but it would leave the judicial review proceedings in the air, because it does not seem to me appropriate on reflection to say that in the event of the appeal being allowed then judicial review is granted because frankly that is something the Court of Appeal want to consider, frankly, in the light of the other considerations in the case. I think on reflection it does not actually achieve anything.  Do you want to say anything else?  I think your position is reserved.
Very well, no, I will leave the order as it is. Perhaps counsel will submit a fair draft, I will initial them as they stand. Is there anything else?  Thank you both very much.  (Pause).
MR BURTON:  I do apologise. My learned friend has indicated to me, and I suspect in fact she may be right, then I am obliged to ask for permission to appeal if we are going to go down that route because I am obliged to ask the first instance court. On that basis I do make the application.
MR JUSTICE CRANE:  But as you can appreciate really, since it will not arise unless Miss Bretherton succeeds I think the right course is to refuse it now, and then the Court of Appeal can decide what they do about it, if there is an appeal on the other matter.
MR BURTON:  The reasons will be clear.
MR JUSTICE CRANE:  Perhaps that could be put in, when it is resubmitted.  Thank you.