QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| RASHIDA KHATUN
|- and -
|LONDON BOROUGH OF NEWHAM
|- and -
|OFFICE OF FAIR TRADING
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ashley Underwood QC and Siân Davies (instructed by Newham LB, the Defendants)
Nicholas Green QC (instructed by the Treasury Solicitor, for the Interested Party)
Crown Copyright ©
Mr Justice Newman:
(1) whether the policy/practice adopted by the London Borough of Newham (the Defendant) for the allocation of leased accommodation to homeless persons is lawful;
(2) whether the Unfair Terms in Consumer Contract Regulations 1999 and Council Directive 93/13/EEC ("the Directive") apply to the terms on which such accommodation is let by the Defendant.
Issue (2) is raised directly only in the case of Khatun and, in that case, the Office of Fair Trading has been joined as an interested party and has appeared by leading counsel.
THE FACTUAL BACKGROUND
"I am pleased to inform you that the Homeless Persons Unit can now transfer you to alternative temporary accommodation. This accommodation is available under the Private Leasing Scheme and is a self-contained unfurnished property.
You should come to the Homeless Persons Unit, 3 Pragel Street, London, E13 9HB at 11.00 am on Thursday 12th December 2002 to collect keys and sign the Tenancy Agreement.
We will continue your hotel booking for a further 3 nights if necessary from your appointment date, in order for you to arrange for gas and electricity supplies to be connected.
If you are unable to keep the above appointment, please telephone on the above number to arrange another appointment. Failure to contact us will result in immediate cancellation of your Bed and Breakfast booking and the offer of accommodation will be withdrawn.
You must ensure that you bring with you proof of identity, ie wage slips, benefits book, letter from employer etc., so that the Housing Benefit form can be completed on the appointment day.
If you have a partner, please ensure he/she turns up also, otherwise sign-up will not take place.
Please note, if you decide not to accept this offer, you will not receive any further offers while enquiries on your application are ongoing. If you are in Bed and Breakfast accommodation it will be cancelled. If you have received a positive decision to your application (letter re: s.184 accept), your application will be closed. Please note that this Authority may consider that you have rendered yourself intentionally homeless if you make a subsequent application.
This accommodation is considered suitable for you and is offered under s.193 of Housing Act 1996. You may apply for a review of the suitability of this accommodation provided you request this within 21 days of receiving this letter".
"You are advised that if you refuse an offer of a suitable accommodation you may not receive any further offers and your current accommodation provided by the council may be cancelled. If you need any further advice on this matter please speak to a member of our staff when you attend the above-mentioned appointment".
(1) The failure to provide the Claimants with the address, general location or any details in connection with the offered accommodation.
(2) The requirement to attend for an appointment "to collect keys and sign the Tenancy Agreement" and a warning that failure to do so would result in "immediate cancellation" of their bed and breakfast booking and withdrawal of the offer of accommodation.
(3) The advice and warning to the effect that refusal of an offer of a suitable accommodation may result in no further offers and cancellation of their current accommodation.
(4) The terms of advice in connection with a review of the suitability of the accommodation which stated that time ran from the date of receiving the letter for 21 days thereafter.
"An applicant may be left alone for a short period in order to consider the offer without the presence of the caseworker. This relieves any pressure on the applicant. This also provides an opportunity for the applicant to contact a solicitor to seek advice".
Where medical issues are raised a doctor may be required to fill in a form". Further:
"The applicant may be advised to accept the offer and seek a review or the offer may be withdrawn – this is within the discretion of the caseworker and the decision will depend in part on the new information supplied. The caseworker's decision would be cleared with a senior officer in this situation".
THE CHALLENGE TO THE POLICY
(1) the letter notifying an applicant of an appointment (see paragraph 4 above);
(2) the interview at which the homeless person is told the name and address of the accommodation and is presented with a pro-forma tenancy agreement for signature. The rent is inserted and no viewing is permitted;
(3) the advice in connection with review to the effect that the accommodation can be accepted and made subject to review;
(4) the requirement to sign "there and then", failure to do so being capable of being treated as a "refusal" of the offer;
(5) if signed the current accommodation will be continued for three days; if not signed, the offer is withdrawn and the current accommodation is cancelled. A letter will be issued notifying the applicant that the section 193 duty has been discharged and that a review may be sought.
"Housing authorities must allow applicants a reasonable period for considering offers of accommodation, particularly final offers made under Part 6 that will bring the homelessness duty to an end whether accepted or refused. There is no set reasonable period; some applicants may require longer than others depending on their circumstances, whether they wish to seek advice in making their decision and whether they are already familiar with the property in question. Longer periods may be required where the applicant is in hospital or temporarily absent from the district. In deciding what is a reasonable period, housing authorities must take into account the applicant's circumstances in each case".
"Obviously, Newham is conscious of the Code of Guidance and has regard to it. Nonetheless, having regard also to the need to move families from bed and breakfast, it considers its current practice to be preferable to the one advocated by the Code".
In the Detailed Grounds of the Defendant's Skeleton Argument a separate point was advanced, namely that the "only purpose of the provision in the Code is to ensure that the authority is sufficiently informed of matters relevant to it being satisfied that the offer is suitable". That being the case, since Newham obtained the necessary information before making the offer, the purpose of the Code was thereby met.
"The alternative to our practice, ie allowing for viewings, does not assist the authority in meeting its targets to re-house families from bed and breakfast accommodation or compensate for the loss of rent as a result of the additional time the property is unallocated. Given the volume of properties and applicants with which Newham deals, empty properties present a significant barrier to the achievement of the target and a loss of revenue to the authority. Newham believes that because of this policy it will be able to meet the Government target".
"No offer is made unless there are good grounds for believing it to be suitable. The applicant is given a reasonable chance prior to signing to inform Newham of a matter which makes the offer unsuitable. If after that Newham maintains that the offer is suitable, the applicant has three days' grace in the bed and breakfast and has the keys to the PSL so as to satisfy themselves as to their decision. At worst, the applicant must move into a PSL for a few weeks rather than stay in bed and breakfast accommodation".
"… she had no comment to make as to the suitability of the property because she attended armed with a letter from her solicitor …. which told of advice not to accept without viewing, because he had litigation in mind".
In conclusion, it stated:
"She has never made any criticism of its suitability. It plainly always was suitable".
Issue (2). Whether the Unfair Terms in Consumer Contracts Regulations 1999 and the Directive apply.
(1) the 1999 Regulations and Council Directive 93/13/EEC of the 5th April 1993 apply to contracts relating to land, including to the grant of leases?;
(2) the 1999 Regulations and the Directive apply to public authorities such as the Defendant?;
(3) the Defendant is a "seller or supplier" and the Claimants are consumers within the meaning of the 1999 Regulations and the Directive?
These issues are of some considerable public importance. By agreement all issues as to whether the Defendant's standard non-secure tenancy agreement is unfair and unlawful are to be adjourned in order to give the Defendant and the Office of Fair Trading ("the OFT") an opportunity to resolve differences by agreement.
(1) to contracts for an interest in land;
(2) to contracts in which the seller or supplier is a local housing authority, entered into in performance of its statutory duty, both because:
(a) it is not acting as a trade, business or profession; and
(b) the other contracting party is not a "consumer".
"(b) "consumer" means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;
(c) "seller or supplier" means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned".
"the internal market …. in which goods, persons, services and capital move freely". (Preamble, fifth recital).
"… the seller of goods or supplier of services … and … distortions of competition .. amongst the seller and suppliers (Preamble, sixth recital).
"… consumers do not know the rules of law which, in Member States other than their own, govern contracts for the sale of goods or services; whereas this lack of awareness may deter them from direct transactions for the purchase of goods or services in another Member State … (Preamble, recital seventh and eighth).
"A striking example of difference in scope is provided by the contrast between British law and that of other Member States. British law excludes contracts of insurance from the application of the Unfair Contract Terms Act, whereby insurance is not excluded by the law of other countries".
It can be added that the Unfair Contract Terms Act 1977 does not apply to land either.
"It cannot be assumed that consumers who cross frontiers to buy goods or services, or to invest or acquire property in other Member States, have understood and agreed the terms of a contract they have made, in that they do not speak the local language so are unfamiliar with the local law, especially if it is complex….".
"There is doubt as to whether the Directive applies to land contracts, including leasehold and tenancy agreements and licences. The amendments to the definitions and layout of the Regulations are intended, in particular, to remove any uncertainty that the Regulations are not capable of applying to contracts relating to land to the extent that the Directive does so".
Caselaw Guidance and domestic implementation by Member States other than the UK.
"It is relevant, however, to note that the lease is made between two commercial parties. If the tenant had been a consumer and the provisions for review of rent had not been individually negotiated (and no other enactment applied), it would be open to the tenant to argue that by virtue of the Unfair Terms on Consumer Contracts Regulations 1999 S1 1999/2083, the provisions of proviso (2) are not binding on him".
The Court's attention was drawn to County Court decisions where the Regulations have been given effect to in connection with leases, but it is not necessary to refer to them in detail.
The CLAB Database
(1) the purpose of the Directive requires the conclusion;
(2) the proper interpretation of the Directive requires the conclusion;
(3) such contracts have not been excluded from the ambit of it, in circumstances where had such been the intention, they would have been;
(4) to exclude such contracts would impede the purposes of the Directive and create a large lacuna in the measure of protection available for consumers.
Do the 1999 Regulations and the Directive apply to public authorities such as the Defendant?
(1) Article 1(2) and Recital 13 of the Directive provide for the exclusion of contractual terms which reflect statutory or regulatory provisions or principles of international conventions from the provisions of the Directive.
(2) Recital 16 which is concerned with fairness states that the assessment of the unfair character of terms will "… in particular in sale or supply activities of a public nature providing collective services which take account of solidarity among users…." take account of the different interests involved.
(3) I accept the submission that the status, namely the public nature of the supplier, goes to fairness and not jurisdiction.
(4) Recital 14 states that the "… Directive also applies to trade, business or professions of a public nature".
(5) The conclusion that a local housing authority is within the Directive is consistent with the European Court of Justice's jurisprudence in connection with public authorities in the fields of competition. For example, a public authority can constitute an "undertaking" in the application of the law on competition and in connection with the transfer of undertakings (see Betterware Group Ltd v Director General of Fair Trade (Registered Homes Confederation of Northern Ireland Ltd and Another Intervening)  All ER (D) 16 Aug). In this instance the local housing authority is engaging in activities which are capable of being performed by the private sector notwithstanding that it has done so in discharge of a statutory obligation to provide housing.
(6) A purposive interpretation requires the activities of housing authorities to be regulated by the Directive and the Regulations.
Whether the Defendant is a "seller or supplier" and the Claimant is a "consumer" within the meaning of the 1999 Regulations and the Directive?
69. The Defendant is plainly a "seller or supplier". The Claimants did not enter into the tenancy agreement for the purpose of their "trade, business or profession" and are plainly consumers.
70. It follows there should be judgment for the Claimants. I shall hear Counsel on the appropriate form of relief and any other outstanding issues.
MR JUSTICE NEWMAN: For the reasons given in a judgment which has been handed down, these applications for judicial review are allowed. Mr Knafler, you have provided me with some draft orders which I think you have circulated.
MR KNAFLER: I understand the local authority's position to be that the format of all three orders is agreeable to them. Subject to your Lordship, I ask for those orders.
MR JUSTICE NEWMAN: They seem to me to meet the bill. Thank you very much indeed.
MR KNAFLER: It may be that other parties have other applications to make.
MR JUSTICE NEWMAN: Does anybody want to say anything about the relief?
MR GREEN: I have something to say about costs.
MR JUSTICE NEWMAN: What has happened? Let me see what you say about costs.
MR GREEN: I think it is agreed between the claimant and the local authority that the claimant gets its costs. No provision has been made for the Office of Fair Trading. We do seek our costs against the local authority.
MR JUSTICE NEWMAN: It is only in the one case you intervened, it is Khatun.
MR GREEN: I can take you for the reasons that we say that it is appropriate for costs to be ordered.
MR JUSTICE NEWMAN: Let me look at the order in Khatun and see the format of it. You ask for the costs of the Office of Fair Trading to be paid by the?
MR GREEN: The defendant, the local authority in the Khatun case. The reasons are, as your Lordship knows the Office of Fair Trading became involved, not by choice but through necessity, because the claimants complained to the Office of Fair Trading under the Unfair Contract Terms Regulations and the parties then asked the Office of Fair Trading not to determine the complaint pending judicial review. The matter was, therefore, going to be heard by the High Court. The Office of Fair Trading has an independent statutory task and function, which includes bringing matters to court for injunctions. In those circumstances it was inevitable that the Office of Fair Trading was going to have to argue the point as an interested party. Neither party objected to the Office of Fair Trading coming in, but it was going to have to argue the point of principle because there was a root and branch challenge to its jurisdiction. The High Court was, therefore, bound to determine an issue of importance and the Office of Fair Trading needed to be heard. It was made clear to the Office of Fair Trading in pre-hearing correspondence that Newham opposed the Office of Fair Trading at every move.
The second point is that the OFT's involvement was, in substance, a substitute for what would have become, in due course, more costly proceedings when the Office of Fair Trading brought separate proceedings against Newham in the Chancery Division for an injunction and appropriate rulings. Given that Newham was opposing the position throughout, and continues to oppose, that would have been inevitable. Those proceedings would have been more expensive because we would have been initiating them. In the event, the Office of Fair Trading was able, fortuitously, to slipstream into these proceedings and, therefore, the costs are lower than they would otherwise have been. When the Office of Fair Trading came in, we acted, in effect, as the claimant. We ran the unfair contract terms part of the case and, if I may say so, all parties acted efficiently, proportionately reasonably in order to keep costs down. But costs were incurred by the Office of Fair Trading in running that part of the case.
The respondents made clear to us in correspondence, and I have it here if it becomes relevant, that they would seek costs against us if they were not successful. In those circumstances a costs issue was live in the correspondence right up until shortly before the hearing and the position has never changed. They would be seeking costs against us if they won, and we reserved our opposition in costs against them.
We would submit, my Lord, that it is appropriate in these circumstances for the Office of Fair Trading who, in effect, have been forced to come along, have argued the point as claimants, to be given their costs in relation to the Khatun case only? Obviously, Mr Luba did not have to argue the point. We would submit there was no extension in the amount of time that would otherwise have had to be taken up if Mr Luba had argued it on behalf of the claimants. But we had to be here to protect what is a very important public interest position. Those are the circumstances, we submit, which justify an order for costs in our favour.
MR JUSTICE NEWMAN: You oppose that, Ms Davies?
MS DAVIES: Yes, my Lord. The local authority opposes the order of costs in relation to the Office of Fair Trading for the reason that the Unfair Contract Terms point was raised by the claimant and could have been argued by the claimant in the Khatun case. The claimant involved the Office of Fair Trading by way of bringing the complaint to the Office of Fair Trading, and it is the local authority's position that it was a matter of expediency to the claimant for the Office of Fair Trading, with its greater expertise and knowledge of the point, to argue the Unfair Terms Contract Regulations point. But the point could have been argued by the claimant. For those reasons the intervention of the interested party, the costs should not been borne by the local authority.
The intervention of the Office of Fair Trading did not add anything to the time that the case took. Mr Luba could have argued the point himself and, had he done so, would have been entitled to the costs of doing that, but it would not have made any difference to his costs. The local authority should not have the added burden of the OFT's costs.
In relation to the correspondence, I have had a brief look through the bundle of correspondence. Clearly, there was an issue as to costs because the local authority opposed the intervention of the Office of Fair Trading, but that was to make clear that it would accept intervention of the interested party in the event that it did not increase the time estimate or the costs implications.
For those reasons, the local authority submit that it should not pay the interested party's costs.
MR JUSTICE NEWMAN: Mr Green, do you suggest that it had to be argued by the Office of Fair Trading or that there were pressing needs for it to be argued by the Office of Fair Trading, as opposed to Mr Luba arguing it?
MR GREEN: Plainly, Mr Luba had the right to argue the point, but there were pressing needs for the Office of Fair Trading to argue it. It is an issue of very considerable importance. Here was a local authority making a vigorous stand against what was, in effect, the jurisdiction of the Office of Fair Trading, and the issue -- because the matter was in front of the Office of Fair Trading, the complaint had been made -- if the High Court found there was no jurisdiction, the Office of Fair Trading would not have been able to continue with its complaint and not have been able to continue with its review of the leases of a large number of other local authorities. It was of the greatest public importance for the Office of Fair Trading to present its case. The Office of Fair trading had access to information which Mr Luba did not have access to and we were able to put that before the court. I hope it was helpful to the court. They have a library of material, they have elections of literature, they have loads of discussions with Commission officials, they had access to the client data base and so on and so forth. Your Lordship has been able to review that material. With respect to Mr Luba, I rather doubt that he would have been able to put that material in front of the court.
MR JUSTICE NEWMAN: If Mr Luba had argued it, and you had stood back, I suppose there was always the chance that the claimants might succeed, as they have, in their personal claim as against the local authority, and you would, without foreknowledge, had to consider what would happen if the court is against the argument, dismisses the argument, on the Regulations. You are then faced with a judgment of this court, which you believe to be wrong which binds you.
MR GREEN: Which binds us and would have thrown an existing policy is into disarray. If the Office of Fair Trading had then sought to commence injunctive proceedings under Regulations against Newham, you would be faced with an authority which bound the High Court and we would have then had to go to court and say, "You were against us, we need to go to the Court of Appeal". But we would have been, in the intervening period, thrown into a state of chaos.
MR JUSTICE NEWMAN: You would have had to started the injunction proceedings, in the first instance, in order to generate the piece of litigation in which you had control of the outcome.
MR GREEN: We would have had to do that and we would have known at that point that we were going to lose because there was a binding High Court authority against us. That is a very unsatisfactory position to be in when the alternative is simply to intervene and put the Office of Fair Trading's case in a piece of ongoing litigation. It was more efficiently done in this context, we would submit, than in the context I have just described which would have been very unsatisfactory. So, the Office's view was that there was little choice but to intervene and it did what it had to do.
MR JUSTICE NEWMAN: Do you want to say anything, Miss Davies, in response to the observation I have made to Mr Green?
MS DAVIES: My Lord, the only comment I would make on that is what the Office of Fair Trading could have done in relation to the local authority, had it not been a party to these proceedings, is a matter of some speculation and the state of disarray into which the Office of Fair Trading would have been possibly thrown had the court ruled against it on that point, is again a matter of some speculation. It may have had other cases in which it could have challenged the ruling. It would not have had to be this particular case against Newham. Those, I would submit, are not satisfactory reasons for requiring the local authority to pay the interested party's costs.
MR JUSTICE NEWMAN: In my judgment, the Office of Fair Trading should have an order for costs against the defendant, the London Borough of Newham, for the following reasons. First, the issue was joined between the London Borough of Newham and the Office of Fair Trading prior to these proceedings, these judicial review proceedings. Because complaint had been made to the Office of Fair Trading, it had established a statutory duty to act.
Secondly, these proceedings were brought at the suit of the claimants who have a more direct personal interest in the arguments, apart from those which were advanced from by the Office of Fair Trading. Thirdly, the matter was, and is, of considerable general public importance for the Office of Fair Trading to have had a ruling on the issue. Fourthly, to have left the matter in the hands of litigants who did not have the same direct and statutory responsibility, before the enforcement of the law regarding my judgment, was an unattractive position for the Office of Fair Trading and they were entitled to take the view that at some stage this issue needed to be joined in proceedings in which they had some carriage of the matter. Fifthly, that the intervention has been moderate and proportionate. It has assisted the court and perhaps has assisted the court in a way which would not have been possible, even in the able hands of Mr Luba, who would otherwise have had to carry the argument.
For all those reasons, and in particular that even Mr Luba would have taken some time, the only area of costs extra to that which would have been incurred in any event, is the separate representation by counsel. But, as Mr Green points out, that, in any event, was likely to take place by proceeding by way of injunction in the Chancery Division to set up a situation in which the issue which had already been joined between Newham and the Office could be dealt with. Thus, it seems right and just that the Office of Fair Trading should have its costs.
MS DAVIES: The local authority seeks permission to appeal against both elements of your Lordship's judgment. If I can deal first with the allocations practice issue. Briefly, your Lordship had said, in paragraph 27 of the judgment, that the view that Newham held, which it asserted in argument, to the effect that its state of knowledge at the signing of the tenancy agreement as to suitability, was of paramount importance, was wrong. Your Lordship has said at paragraph 32 that when enacting the Housing Act Parliament did not legislate for the local authority's judgment to operate at any stage as final and conclusive. It is the local authority's submission that that is not what the Act says, or a reflection of settled authority, in particular the case of Puhlhofer in which it was held that the question of suitability is one for the authority alone, to be set aside only if its decision is verging on the absurd. Looking at the declarations which we annex to the draft order, the first declaration requires the local authority, in order to discharges its functions lawfully, to provide a viewing and an opportunity for the applicants to consider accommodation before signing a tenancy agreement. In the local authority's submission, that obliges the local authority to seek input from the applicant too, to the question of suitability which, in the local authority's submission, is clearly deemed by Parliament to be a matter only for the authority subject to the nationality argument.
That, in a nutshell, is the local authority's argument on the allocations point.
Turning to the issue of the Regulations, the judgment takes into account the purpose of the Directive and the intention of the UK government when the Regulations were enacted. It is the local authority's submission that the view of the Commission and the recitals and the legislative history in 1994 are also relevant and those show contrary intention when the Regulations were first enacted. In relation to the Regulations, I would also emphasise the extreme importance of the matter in terms of the number of leases entered into and the wide application of the Regulations.
Unless I can assist your Lordship further.
MR JUSTICE NEWMAN: No. Thank you, very helpful. Mr Knafler, are you going to respond, or Mr Green, if he is not offended by the alteration in priority of status.
MR KNAFLER: Since allocation was raised, first, by Ms Davies, if I may respond to that briefly, and say, that your Lordship's judgment is entirely consistent with central Government guidance. To the best of our knowledge, Newham is the only council authority that has this particular practice. It must be implicit in the 1996 Act that a reasonable opportunity of viewing accommodation is afforded.
In my submission, your Lordship's judgment is clearly right and, if an appeal is to be launched, it should be left to the Court of Appeal to decide whether that should take place.
MR JUSTICE NEWMAN: Puhlhofer -- you submit it is not inconsistent with Puhlhofer?
MR KNAFLER: Ultimately, the final decision as to whether accommodation is suitable is for the housing authority. That is not in dispute.
MR JUSTICE NEWMAN: Yes, Mr Green, what do you say about permission on your part?
MR GREEN: We suggest that this is a matter for the Court of Appeal. Your Lordship has given clear and unequivocal ruling which is consistent with the position adopted in other member states. It is relevant that in this regard we were threatened with an application for a Reference which was not, in the event, pursued by the local authority before your Lordship. If the local authority thought this was a matter that ought to go further, they should have made an application for a Reference. As matters stand, we will go to the Court of Appeal and the Court of Appeal might make a Reference. But they did not take the view that it was sufficiently serious for them at that stage. That is a reason why your Lordship can leave it to the Court of Appeal. If the Court of Appeal think it is an issue they wish to hear, then so be it.
There is another matter. We understand that the local authority has now a new set of draft terms and conditions. I think that was explained to your Lordship in the course of the hearing. It is not clear that there is any dispute between the Office of Fair Trading and the authority on those terms. We have not seen them, but the facts appear to have changed and that is a reason why, if there is anything left really in substance in this point, it is for the Court of Appeal.
MR JUSTICE NEWMAN: You do not resist the application for leave to be granted in connection with your part of the case, is that right?
MR GREEN: We do. We say it should be left to the Court of Appeal.
MR JUSTICE NEWMAN: You say it should be left to the Court of Appeal?
MR GREEN: Yes, it should be left to the Court of Appeal.
MR JUSTICE NEWMAN: You say it should be left, but not left in the sense by permission being granted, but left to the Court of Appeal to decide whether permission should be granted.
MR GREEN: The Court of Appeal should be entitled to choose from the menu.
MR JUSTICE NEWMAN: It seems to me, as the judgment records and you have said, it is a matter of public importance and, of course, one of the grounds upon which I do have to address the question of leave, whatever view I form as to the merits, is whether it is not simply, from the point of view of the importance of the point, better that there should be a Court of Appeal decision on it rather than simply my own.
MR GREEN: That is absolutely right, my Lord, save only that the Court of Appeal can take the same view as to the importance of the issue. The Office of Fair Trading is not saying it is not of importance, only that the Court of Appeal can make a determination whether that is sufficient for one of appeal.
MR JUSTICE NEWMAN: On balance, I am persuaded that the point is, so far as the Office of Fair Trading is concerned, a point of sufficient importance that it does fall within those classes of cases which, for that reason alone, I should grant permission and I so do.
So far as the allocation policy is concerned, I am not persuaded, either from the public importance of the point or from the merits of the matter, that it is a case which justifies the grant of permission. That can be a matter which the Court of Appeal can consider in the context of the permission I have granted on the other point.
Thank you all very much. There will be relief granted in the terms of the draft orders which have been submitted to the court, save that in the case of Khatun there must be a paragraph added to the effect that the Office of Fair Trading should have their costs against Newham.