England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 May 2017

Mrs Justice Lang :

1. On 18 November 2016 the Applicant filed an application for permission to make a committal application against the Respondent, arising out of its response to his claim for judicial review (CO/5374/2016), in which he challenged the Respondent's decisions to suspend and then exclude him from the housing register. The Applicant alleged in his application that Ms Jo Elliott, the Respondent's Senior Housing Lawyer, knowingly made a false statement of truth in the Acknowledgment of Service filed on behalf of the Respondent on 3 November 2016, when she verified the Summary Grounds of Defence, which contained three false and/or deliberately misleading statements, which were caused to be made by Ms Coral Sewell, the Respondent's Access and Allocations manager.
2. Pursuant to the order of May J., dated 19 April 2017, the Applicant attended the oral hearing by video link from Woolwich Crown Court. A medical report dated 2 March 2017 from Dr Gaete, Specialty Doctor in Psychiatry at Oxleas NHS Foundation Trust, advised that he was not fit to attend a court hearing in person because he suffers with "severe and enduring mental illness". He has been diagnosed with depression, anxiety, post-traumatic stress disorder, and emotionally unstable personality disorder. The oral hearing in his application to commit was listed immediately before the Applicant's renewed application for permission to apply for judicial review in CO/214/2017. However, the hearings were conducted separately because the Respondent declined to take any part in the judicial review claim.

Legal framework

3. This application is governed by CPR Part 81. Rule 81.14 sets out the procedure to be followed, including the requirement for a detailed statement of the applicant's grounds for the application, supported by an affidavit.
4. Rule 81.18 makes provision for committal applications in relation to a false statement of truth or disclosure statement and states:

"81.18:

(1) A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court, a Divisional Court or the Court of Appeal, may be made only –

(a) with the permission of the court dealing with the proceedings in which the false statement or disclosure statement was made; or

(b) by the Attorney General.

(2) Where permission is required under paragraph (1)(a), rule 81.14 applies as if the reference in that rule to a Part 8 claim form were a reference to a Part 23 application notice and the references to the claim form were references to the Part 23 application notice.

(3) – (6) ….."

5.  Practice Direction 81 provides, so far as is material:

"5.2 Where the permission of the court is sought under rule 81.18(1)(a) or 81.18(3)(a) so that rule 81.14 is applied by rule 81.18(2) or 81.18(4), the affidavit evidence in support of the application must –

(1) identify the statement said to be false;

(2) explain –

(a) why it is false; and

(b) why the maker knew the statement to be false at the time it was made; and

(3) explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.

…

5.7 The rules do not change the law of contempt or introduce new categories of contempt. A person applying to commence such proceedings should consider whether the incident complained of does amount to contempt of court and whether such proceedings would further the overriding objective in Part 1.

…

9. In all cases the Convention rights of those involved should particularly be borne in mind. It should be noted that the standard of proof, having regard to the possibility that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt."

6. In Tinkler & Anor v Elliott [2014] EWCA Civ 564, the Court of Appeal approved (at [44]) the following summary of the legal principles in the judgment of HH Judge Pelling QC, sitting as a Deputy High Court Judge:

"23. The approach to be adopted on applications for permission has been considered in a number of authorities. The principles that emerge are the following:

(i) In order for an allegation of contempt to succeed it must be shown that "… in addition to knowing that what you are saying is false, you had to have known that what you are saying was likely to interfere with the course of justice …" – see Edward Nield v. Loveday [2011] EWHC 2324 (Admin);

(ii) The burden of proof is on the party alleging the contempt who must prove each element identified above beyond reasonable doubt - see Edward Nield v. Loveday (ante);

(iii) A statement made by someone who effectively does not care whether it is true or false is liable as if that person knew what was being said was false – see Berry Piling Systems Limited v. Sheer Projects Limited [2013] EWHC 347 (TCC), Paragraph 28 – but carelessness will not be sufficient – see Berry Piling Systems Limited v. Sheer Projects Limited (ante), Paragraph 30(c);

(iv) Permission should not be granted unless a strong prima facie case has been shown against the alleged contemnor – see Malgar Limited v. RE Leach (Engineering) Limited [1999] EWHC 843 (Ch), Kirk v. Walton [2008] EWHC 1780 (QB), Cox J at paragraph 29 and Berry Piling Systems Limited v. Sheer Projects Limited (ante) at Paragraph 30(a);

(v) Before permission is given the court should be satisfied that

(a) the public interest requires the committal proceedings to be brought;

(b) The proposed committal proceedings are proportionate; and

(c) The proposed committal proceedings are in accordance with the overriding objective –

- see Kirk v. Walton (ante) at paragraph 29;

(vi) In assessing proportionality, regard is to be had to the strength of the case against the respondents, the value of the claim in respect of which the allegedly false statement was made, the likely costs that will be incurred by each side in pursuing the contempt proceedings and the amount of court time likely to be involved in case managing and then hearing the application but bearing in mind the overriding objective – see - Berry Piling Systems Limited v. Sheer Projects Limited (ante) at Paragraph 30(d);

(vii) In assessing whether the pubic interest requires that permission be granted, regard should be had to the strength of the evidence tending to show that the statement was false and known at the time to be false, the circumstances in which it came to be made, its significance, the use to which it was actually put and the maker's understanding of the likely effect of the statement bearing in mind that the public interest lies in bringing home to the profession and through the profession to witnesses the dangers of knowingly making false statements – see KJM Superbikes Limited v. Hinton [2008] EWCA Civ 1280, Moore-Bick LJ at Paragraphs 16 and 23; and

(viii) In determining a permission application, care should be taken to avoid prejudicing the outcome of the application if permission is to be given by avoiding saying more about the merits of the complaint than is necessary to resolve the permission application – see KJM Superbikes Limited v. Hinton (ante) at Paragraph 20."

7. The Respondent relied in particular upon the following passages from the judgment of Moore-Bick LJ in KJM Superbikes Ltd v Hinton [2009] 1 WLR 2406:

"16. Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker's state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.

17. In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it. In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J. in paragraph 16 of his judgment in Sony v Ball that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.

18. Paragraph 28.3 of the Practice Direction supplementing Part 32 directs the applicant to consider whether proceedings for contempt would further the overriding objective and that is a matter which the court itself should plainly have in mind. It is important not to allow satellite litigation of this kind to disrupt the progress of the substantive proceedings and it may not be possible to assess the strength of the complaint until those proceedings have concluded. This danger was well described by David Richards J. in Daltel Europe Ltd v Makki as follows:

"Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well-founded. If parties thought that they could gain an advantage by singling out these statements and making them the subject of a committal application, the usual process of litigation would be seriously disrupted. In general the proper time for determining the truth or falsity of these statements is at trial, when all the relevant issues of fact are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application under CPR Part 32.14.""

The alleged false and/or misleading statements

8. The Applicant's allegations were initially set out in his application notice and witness statement of 18 November 2016, and were based on paragraph 37(i) of the Summary Grounds of Defence filed by the Respondent on 3 November 2016. The Respondent pointed out that he was required to file an affidavit, rather than a witness statement, under CPR 81.14.
9. On 9 February 2017, the Applicant applied to amend his grounds, and that application was supported by an affidavit which addressed the matters referred to in the witness statement of 18 November 2016, as well as further matters. His amended grounds were based upon paragraphs 37(ii)(1), 38(iii) and 39(i) of the Summary Grounds of Defence filed by the Respondent on 3 November 2016. He no longer relied upon paragraph 37(i) of the Summary Grounds of Defence, although there was an overlap with paragraph 37(ii)(1).
10. On 6 March 2017, the Applicant applied to amend his application further, adding Ms Debra Potter as an alleged contemnor, and linking the application with a new committal application which he had made in the County Court. This application appears to have been refused by Langstaff J. on 18 April 2017.
11. On 26 March 2017, the Applicant filed a further affidavit in support of his application to commit, without making any application to amend his grounds or to admit further evidence. At the hearing, I upheld the Respondent's objection to admission of this affidavit, as it made further vague wide-ranging allegations which ought to have been set out precisely, in amended grounds, if they were to be relied upon. There were, however, contemporaneous documents exhibited to the affidavit which I did consider when ascertaining the facts, summarised below.
12. Paragraphs 37 to 39 of the Summary Grounds of Defence are set out below, with the allegedly false or misleading statements in paragraphs 37(ii)(1), 38(iii) and 39(i) underlined:

"37. It is denied that, in suspending then excluding the Claimant from the housing register on the basis of his past convictions, Greenwich thereby breached a legitimate expectation warranting substantive relief. In particular:

i. The representation was not "clear": R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, §60 (Lord Hoffmann). It referred to "your past conviction" ….. suggesting that the representor was unaware that the Claimant had two past convictions. This highlights the confusion in the allocation team about the Claimant's criminal history;

ii. Even if the legitimate expectation arose, the public interest was sufficient to override the interest in keeping the promise in that:

(1) The reason why the email of 23 August 2016 was superseded was because, although the facts of the Claimant's convictions were available to the allocations team, their seriousness had not been fully absorbed. In particular, Ms Coral Sewell was unaware of the full nature of the 2009 conviction. This was an oversight that Greenwich sought to correct in its Suspension and Exclusion Decisions. This oversight can be explained, in part, because of the barrage of emails, calls, challenges and complaints made by the Claimant during the relevant period;

(2) There was no detrimental reliance by the Claimant. Where an assurance is given to only one person and there is no irrationality in adopting the new approach, the lack of detrimental reliance is fatal: Oxfam v HMRC [2009] EWHC 3078, [2010] STC 686 (Ch), §50 (Sales J);

(3) The public interest in excluding from the register those who have committed serious criminal offence in the past is substantial.

38. In relation to §34(iv) above:

i. There was no duty to give reasons for the Suspension Decision; fairness did not require this: R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 (HL), 560 (Lord Mustill). First, Greenwich made the Suspension Decision in an administrative, rather than judicial, capacity: Stefan v General Medical Council [1999] 1 WLR 1293 (PC), 1301-1302. Second, the Suspension Decision, as stated in the letter of 23 September 2016, was an interim decision pending further enquiries and a final decision with reasons. Third, the reasons for the Suspension Decision – the allocation team's realisation that the Claimant's criminal past was more serious than had been thought and the Claimant's past rent arrears – were not such as to require disclosure at that stage. It was not an issue which the Claimant could have any meaningful input into;

ii. In any event, the Claimant did not suffer prejudice. By his emails of 2 and 3 October 2016 (pp16-20 of the Bundle), the Claimant appears to have been aware of the reasons for the Suspension and was able to respond;

iii. Alternatively, any duty to give reasons was satisfied by the email, dated 12 October 2016 (p34 of the Bundle), in which Ms Sewell confirmed the reasons to the Claimant. She stated, "your past offence(s) and housing related debt are the issues under consideration and you will be notified of the outcome of this review shortly";

iv. Further or alternatively, the Suspension Decision was superseded by the Exclusion Decision, on 18 October 2016 (pp41-43 of the Bundle), and the reasons given with that letter;

v. In any event, the Court must refuse permission as it is highly likely that the outcome for the Claimant would not have been substantially different if reasons had been given in the letter of 23 September 2016 (p30 of the Bundle): s31 (3C) of the Senior Courts Act 1981.

39. In his Additional Grounds (p15B of the Bundle), the Claimant argues that Greenwich had no power to revisit and reverse the decision of 14 September 2016 to enter the Claimant onto the housing register. This is incorrect:

i. In making the decision on 14 September 2016, Greenwich suffered from an oversight in failing to appreciate the particulars and seriousness of the Claimant's past convictions. This oversight amounted to a fundamental mistake of fact: Porteous v West Dorset DC [2004] HLR 30 (CA), §9 (Mantell LJ);

ii. Alternatively, even if this oversight cannot amount to a fundamental mistake of fact, s12(1) of the Interpretation Act 1978 states: "When an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time as occasion requires". Given that no contrary intention appears in the 1996 Act or the Scheme, Greenwich ought to be able to revisit decisions such as those made on 14 September 2016; and,

iii. Further and/or alternatively, this case can be distinguished from the homelessness cases (such as Porteous v West Dorset DC [2004] HLR 30 (CA)). Compared to Part VII of the 1996 Act, Part VI leaves much greater discretion to housing authorities in allocating housing: ss159(7) and 166A of the 1996 Act. This is an acknowledgement that the housing authority have the expertise and knowledge to allocate the housing stock in its area. Where such discretion exists, as opposed to findings of fact, public authorities are entitled to revisit decisions, such as those of 14 September 2016: Rootkin v Kent CC [1981] WLR 1186 (CA), 1195 (Lawton LJ)." (emphasis added)

13. The Summary Grounds of Defence were drafted and signed by Mr Vanderman of Counsel, instructed by Ms Elliott.
14. The Applicant submitted that these statements in the Summary Grounds of Defence were "malicious falsehoods …. intentionally and successfully deployed to undermine [his] JR claims". Ms Sewell must have been aware, at all material times, of his past convictions, and the particulars and seriousness of them, because the information had been made available to the Respondent's housing department.
15. These allegations were denied by Ms Elliott and Ms Sewell, who both made witness statements setting out their accounts.

Facts

16. The Applicant was born in Nigeria on 20 July 1970, and is resident in the UK.
17. On 16 January 2009, the Applicant was sentenced to 7½ years imprisonment for the offence of being knowingly concerned in the evasion of a prohibition or restriction on the importation of a Class A drug. He entered a guilty plea. A confiscation order was also made.
18. The Applicant was released from prison in August 2012, and submitted an application to join the Respondent's housing register, disclosing that he had just been released from prison. The application was approved and he was placed on the register in December 2012. His address history on the Respondent's records listed his prison addresses between November 2008 and August 2012.
19. On 10 September 2014, the Applicant was sentenced to 7 years imprisonment by the Dublin Circuit Court in the Republic of Ireland for possessing a controlled drug with intent to supply. The last four years of the term were suspended.
20. The Applicant was transferred to a UK prison in August 2015. Prior to his release, the Prison Service made a homeless application referral to the Respondent. Following his release from prison on 13 April 2016, the Respondent refused to provide him with temporary accommodation.
21. The Applicant was admitted to a psychiatric hospital on 20 April 2016 and subsequently discharged.
22. The Respondent's Housing Options and Support Services Form, dated 18 April 2016, set out his offending history stating that he had "2 x drug smuggling offence" in 2008 and 2014, and referred to the length of the sentences imposed and the time spent in prison for each offence.
23. On 27 April 2016, the Respondent's Allocation Team wrote to inform him that:

"…the council has decided to exclude your details from the housing register for the following reasons: due to you not meeting the five year residency criteria and your past offences. The Council will exclude from the register applicants who have been guilty of unacceptable behaviour which makes them unsuitable to be a tenant. Unacceptable behaviour is any criminal or anti-social behaviour, or any significant breach of tenancy conditions such as serious rent arrears."

24. The Applicant appealed against the decision. His appeal was considered and dismissed by the Respondent's Case Review Panel. The decision letter, dated 29 June 2016, informed him that his appeal against exclusion from the housing register had been unsuccessful because "….you do not meet the 5 year residency rule and there is evidence of a previous address in Glasgow prior to prison and your offences are considered to be anti-social". The Chair of Panel was Ms Sewell. The minutes of the meeting stated that he was currently released on licence (in prison for drug smuggling offences) which did not expire until 21 May 2017.
25. On 28 July 2016, the Applicant sent a pre-action letter warning the Respondent that he intended to apply for judicial review of its decision.
26. On 2 August 2016, a copy of the Applicant's criminal record from the Police National Computer ("PNC") was emailed to Ms Sewell and another housing officer. It showed a Glasgow address for the Applicant, and gave details of the two convictions I have referred to above.
27. On 3 August 2016, Ms Elliott wrote to the Applicant in response to his pre-action letter stating that the Respondent would withdraw the previous decision and carry out a fresh review by 23 August 2016. She confirmed that the decision related to exclusion of a new application, as his previous registration was cancelled in December 2014, when the Applicant failed to renew it. The Applicant was previously unaware it had been cancelled and had not made a new application.
28. On 23 August 2016, Ms Sewell emailed the Applicant advising that the review would not be completed until 9 September 2016, and saying that "it has also been decided that your past conviction will not be taken into account in considering your eligibility to join the housing register". In her witness statement, Ms Sewell said that at the time she wrote this email she had overlooked his earlier conviction in 2009, and therefore referred to one conviction, not two. As the Respondent had decided to focus on the 5 year residency requirement, she had not checked the details of his offending history, although it was available to her from the Applicant's PNC and the Respondent's Housing Options and Support Services Form.
29. On 14 September 2016, Ms Sewell wrote to the Applicant informing him that the Case Review Panel had upheld his appeal and decided that he could join the housing register because "you fall within a reasonable preference category as you are homeless and are therefore exempt from the Council's five year continuous residency requirement to join the housing register". He was to be placed in Band B2.
30. On 17 September 2016, the Applicant threatened to bring legal proceedings on the basis that he should have been placed in a higher priority band than Band B2.
31. Throughout this period, there a number of communications between the Applicant and the Respondent concerning his ongoing application for housing as a homeless person under Part 7 of the Housing Act 1996.
32. The Applicant wrote on 23 August 2016 to his Dublin solicitors asking for confirmation about the circumstances in which he was sentenced, including exceptional circumstances which led to a reduced sentence, and authorising them to provide the information direct to Ms Howarth of RB Greenwich, who was conducting an enquiry for the purposes of his homelessness application, to establish the circumstances of his offence and how he came to lose his accommodation in Glasgow in 2014.
33. On 5 September 2016, the Applicant filed a judicial review claim CO/4519/2016 challenging the Respondent's handling of his homelessness application.
34. On 13 September 2016, Ms Howarth emailed the Probation Service, describing her difficulty in obtaining any further information from the Irish courts, and Mr Aroh of the Probation Service said that he had not received information from the Irish courts, and only had information from other sources, such as the internet.
35. During this period, the Housing Allocations team, the Homelessness team and the legal team were receiving a large number of emails and telephone calls from the Applicant, which included allegations about their conduct, which caused concern.
36. On 21 September 2016, the Respondent held a meeting to discuss the Applicant's case. The minutes stated:

"Part 7 [Homelessness application]

Further enquiries required:

On loss of last settled accommodation including any possession proceedings for rent arrears.

The offending history including imprisonment prior to loss of accommodation.

Part 6 [Housing register]

Information from the Part 7 enquiries show the extent of the offending history, namely two convictions (not one) for drug related offences and new information relating to possession proceedings for rent arrears to a private landlord.

Action

Continue homelessness enquiries

Agree to suspend the Housing Application pending consideration of all the information available through enquiries and taking into account the terms of the Allocation Policy."

37. On 23 September 2016, Ms Sewell wrote to the Applicant informing him that his housing application was suspended while further enquiries were carried out, as the Respondent had concerns about his suitability to be on the housing register, arising from enquiries carried out in respect of his homelessness application.
38. On 11 October 2016, the Applicant emailed Ms Sewell, complaining that he could not see any information about the reasons for his suspension from the housing register in the Part 6 housing file which had been disclosed to him, at his request. On 12 October 2016, Ms Sewell replied stating that nothing had been withheld from his file apart from documents which were duplicated in the Part 7 housing file, also disclosed to him. Among other matters, she said: "In terms of your Part 6 application, the Allocations section is entitled to review an application if information comes to light that merits further consideration. In this instance, your past offence(s) and housing related debt are the issues under consideration and you will be notified of the outcome of this review shortly."
39. On 12 October 2016, Ms Elliott sent an email to a colleague stating "Coral [Sewell] is very upset over this (see below) and I don't blame her. She is working on the letter, once the letter is done the suspension will be superseded by the exclusion. I have been trying to get her to stick to the factors in the A policy, however I doubt that it will be done today and he is threatening action tomorrow although not sure what form it will take! C'est la vie. Debbie is working on the minded letter."
40. On 18 October 2016, Ms Maureen Dignam, the Respondent's Senior Operation Manager, wrote to the Applicant informing him that the further enquiries had now been concluded and his case had been reviewed by the Case Review Panel. The Panel had decided that he would be excluded from the housing register in accordance with paragraph 2.3.1 of the Council's Allocations Policy on the basis of his unacceptable behaviour which was serious enough to make him unsuitable to be a tenant. The letter stated:

"Criminal Convictions

The Panel notes that on 16 January 2009 you were convicted for the offence of evading a prohibition on the import of a Class A drug and you were imprisoned for 7½ years. After your release from prison you were again convicted on 10 September 2014 for the offence of possessing a controlled drug with intent to supply, for which you were sentenced to seven years in prison with the final four years suspended. Both offences are very serious and that is reflected in the sentences you received. Both offences put others at risk from Class A/controlled drugs and all the harmful and negative issues associated with such drugs.

You say in your submission of 29 May 2016 that your 'conviction resulted from an incident that occurred outside the UK, and it was not related to anti-social behaviour or behaviour that directly placed other people at risk: hence I consider it inappropriate to deem me an unsuitable council tenant- on the basis of unacceptable behaviour.'

The Panel did not accept your submission and concluded that drug related offence have a serious impact on society. The offences involve the importation of a Class A drug and the latter with an intention to supply drugs. Had you been successful in the importation, people would inevitably have been put at risk. Notwithstanding, that you did not succeed in your endeavour, it is clear that your general conduct is sufficient to put others at risk particularly as you have shown no remorse. The Panel noted that you were on licence when you committed the second offence. You continue not to accept the seriousness of your conduct and imprisonment for the first offence, clearly this did not deter you from committing the second offence. The Council faces significant problems with drugs misuse in its area. The Council has a duty to the residents of the borough to manage the its allocation of accommodation and its housing estates in a way that ensures that it safeguards its residents and does not exacerbate or contribute to the on-going problems.

The Panel has taken into consideration the information you supplied regarding your risk to the community and note that your risk was reduced from medium to low following the completion of a work book given to you to complete whilst in prison. I note that the work book took three days to complete and was completed to a very high standard. The Panel has however taken into account the Council's responsibilities as a social landlord, the nature, frequency and seriousness of your criminal offences (for which you are still under licence), and concluded that you are a risk to others. This is more so given that you have not yet demonstrated a meaningful period since your release from prison in April 2016 without committing a serious offence.

2. Judgement for £1570

On the 21 May 2014 at Glasgow Sheriff Court, the solicitors for the landlords were granted decree for eviction, payment of the claimed arrears on £1570 and expenses. You are therefore subject to an order for breach of tenancy namely failure to pay you rent resulting in substantial arrears.

The Panel has also taken account of your assessed medical condition of PTSD and have concluded that that in itself or when combined with other factors does not prevent the Council from excluding you from the Housing Register.

The Council is mindful of its duties towards persons with protected characteristics under the Equality Act 2010 and having due regard to your disability, namely PTSD, has concluded that this is a proportionate decision. It is a legitimate aim to seek to safeguard the interests of other borough residents in the light of your serious offending behaviour and other matters sited above by excluding you from the housing register.

These matters can be reviewed in 12 months but if you are unhappy with this decision, you have the right to request a review. The request for a review must be made in writing within 21 days of the date of this letter."


 


41. There was evidence to show that the Respondent's homelessness team had been making enquiries in Scotland about the Applicant's tenancy in Glasgow and the circumstances in which it terminated, both prior to, and after, the decision of the Case Review Panel. Consideration of the homelessness application was still ongoing at that time.
42. On 17 October 2016, the Applicant filed judicial review claim CO/5374/2016 in which he challenged the Respondent's decision-making process on his housing allocation. He subsequently added further grounds.
43. The Respondent filed its Acknowledgment of Service and Summary Grounds of Defence on 3 November 2016.
44. At an oral permission hearing on 9 November 2016, HH Judge Wall QC, sitting as a Deputy High Court Judge, refused the Applicant permission to apply for judicial review in claims CO/4519/2016 and CO/5374/2016. In respect of claim CO/5374/2016, he said in his judgment:

"17. The defendants in this case have made a number of decisions relating to whether the claimant ought to be on the housing register. On 23 August 2016 the claimant was written to by the defendant saying that his past conviction will not be taken into account when that decision was made. In fact he has not one conviction but two; each of them relating to dealing in drugs and for both of which he received lengthy custodial sentences.

18. I accept that the defendant authority were in possession of information as to both of those convictions before they wrote that letter on 23 August. Having written that letter, however, on 23 September the defendant authority suspended the claimant from its housing register, to which he had been admitted a few days before on 14 September, and then finally on 18 October of this year they excluded the claimant from their housing register altogether, that being the final decision.

19. The claimant seeks to bring judicial review of those last two decisions: firstly the suspension decision and then the exclusion decision. The most significant point that he brings for consideration is whether the letter of 23 August saying that his past conviction will not be taken into account means that the decisions that were made to suspend and then to exclude him which expressly did take into account his previous convictions are challengeable. His assertion in reality is that there was a legitimate expectation set up by the council on 23 August which meant that they could not act in the way they purported to do thereafter.

20. As far as the claim of legitimate expectation is concerned, it is arguable whether that was a clear representation or not as it referred to conviction, whereas in fact there were two significant convictions. But when one looks at whether there is a public law remedy for a legitimate expectation when it arises, one must look at the way in which the claimant acted in reliance upon that expectation. There was nothing that he did in this case that was in reliance upon it and indeed it is difficult, if not impossible, to think of anything that he could have done in reliance upon the expectation that he claims was created by the letter of 23 August.

21. There is a line of authority, the case in particular to which I have been referred being Oxfam v Her Majesty's Revenue and Customs [2009] EWHC 3078, in which it is said that not relying on a purported expectation is fatal to any claim of this sort.

22. In this case, given all the other factors, including the timescale and the lack of reliance and the lack of any way in which he could have relied upon what was in that letter, I do not find that there is anything within the decisions that is challengeable on that basis.

23. Other points have been taken which are on their face of less merit. Firstly, the claim is made that the claimant was not informed of the reasons why he was suspended from the register initially. That suspension decision has in any event now been superseded but it is clear from the correspondence in this case that he was well aware of the issues that were being investigated by the defendant and that there is no procedural unfairness in the way in which they acted.

24. It is also submitted on the part of the claimant that the defendant has unlawfully deviated from the scheme set in place in order to determine whether one should be on the housing register or not. A number of points are made, including the fact that his past criminal offences do not amount to antisocial behaviour or unacceptable behaviour.

25. In fact, his criminal offences are catered for as one of the reasons for removal from the scheme within the text of the scheme itself. His assertion that past criminal offences which took place more than 2 years ago cannot be considered is factually inaccurate.

26. The authority have also relied on past rent arrears. He has past rent arrears. He seeks to explain them through his medical condition, but the medical condition does not mean that these are arrears that cannot be considered.

27. In any event, even if one removed the rent arrears from the calculation in this case completely, it seems to me I should apply section 31(3)(c) of the Supreme Court Act 1981 to say that the previous convictions on their own would undoubtedly provide a good basis for refusing his application to be on the register.

28. He further submits that the local authority has acted in breach of the Human Rights Act and in violation of the Equality Act.

29. I need say no more than I see no basis upon which that assertion can be made with any hope of success.

30. There are, therefore, in my judgment, no grounds for allowing this case to go forward for judicial review and I refuse the application."

45. 
     
    
46. HH Judge Wall QC refused the Applicant permission to appeal and so the Applicant applied for permission to the Court of Appeal. Gloster LJ refused permission to appeal, stating that the decision of HH Judge Wall QC was plainly correct and there was no arguable basis for an appeal. She found the application to be totally without merit. In her written reasons she stated:

"… the judge was correct to hold, for the reasons he gave, that the Respondent acted lawfully in excluding the Appellant from the housing register. I should record that a number of arguments on this appeal were entirely misconceived: for example, the arguments concerning the absence of an express reference to section 184 or specific background facts, the supposed failure to give reasons, res judicata and estoppel.

Accordingly, under CPR 52.3(4A)(a), these applications are refused as totally without merit and I order that the appellant may not request the decision to be reconsidered at a hearing."

47. The Applicant has also made other applications in connection with the same dispute, in the County Court and the Administrative Court. These are still ongoing. He has also made applications to the Information Commissioner.

Conclusions

48. It is apparent from the narrative above that the Applicant has been, and continues to be, engaged in a lengthy dispute with the Respondent over his applications (1) to be placed on the housing register and (2) to be housed as a homeless person in priority need. The Applicant has filed a number of legal claims, which so far have been unsuccessful. In my view, his application to commit the Respondent for contempt of court, because of the actions of its solicitor and housing allocation manager, is merely another weapon which he is deploying to attack the Respondent's refusal to house him. In my view, it is unarguable that they have acted in contempt of court. Although I sympathise with the Applicant's predicament and understand his disappointment, I have concluded that his application to commit is entirely misconceived.
49. The appropriate way to challenge the Respondent's decision on exclusion from the housing register was by way of judicial review. The Applicant duly made such a claim, which the Respondent defended, on the basis set out in the Summary Grounds of Defence. There was an oral permission hearing in the Administrative Court, where the merits of his claim were considered. The Applicant appeared, and so did Mr Vanderman, counsel for the Respondent. HH Judge Wall QC, sitting as a Deputy High Court Judge, refused his application for permission to apply for judicial review as unarguable, giving a reasoned judgment in which he concluded that "there are, in my judgment, no grounds for allowing this case to go forward for judicial review". The Applicant's claim was then given careful consideration by Gloster LJ in the Court of Appeal, who found that HH Judge Wall QC's decision was plainly correct; that the Applicant's arguments were misconceived; and the claim was totally without merit.
50. The application to commit was based upon specific paragraphs in the Respondent's Summary Grounds of Defence filed in the judicial review claim. The Summary Grounds of Defence was a pleading (i.e. a formal legal document setting out the Respondent's case), which was drafted and signed by the Respondent's barrister, Mr Vanderman. It was distinguishable in character from a statement or affidavit made by a person with personal knowledge of the facts contained therein. The paragraphs of which complaint was made were part of the Respondent's legal submissions to the court. The statement of truth which Ms Elliott signed in the Acknowledgment of Service (which incorporated the Summary Grounds of Defence) stated "I believe that the facts stated in this form are true". The Statement of Truth could only sensibly apply to statements of fact in the Acknowledgment of Service and Summary Grounds of Defence, not to legal submissions.
51. In so far as the challenged paragraphs included statements of fact, the Applicant has failed to establish that those statements were false or deliberately misleading. The statements all related to the Applicant's convictions and the Respondent's treatment of them.
52. In an earlier section of the Summary Grounds of Defence, the Respondent gave a full account of the convictions and its changes of stance towards them. In paragraphs 4 and 28, the Respondent set out details of his convictions and sentences, which were factors leading to its conclusion, on 18 October 2016, that he had been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant, and therefore he was not qualified to join the housing register under the terms of its Allocations Scheme. The pleading explained the previous history as follows:

"5. The original exclusion from the housing register, on 27 April, was made on the bases that the Claimant did not meet the five-year residency criterion and his past criminal offences. The appeal in relation to this decision was refused on 29 June 2016.

6. Realising that homelessness was a valid reason for exemption from the five-year residency criterion, Greenwich withdrew its original decision on 3 August 2016 for review. As part of undertaking this review Ms Coral Sewel sent an email to the Claimant, on 23 August 2016, in which it was stated that:

"Please be aware that the review will be restricted to the above as it has also been decided that your past conviction will not be taken into account in considering your eligibility to join the housing register".

7. A new decision was issued on 14 September 2016, agreeing that the Claimant could join the housing register at Band 2….

8. By this stage, over the course of several weeks the Claimant had been phoning Greenwich on many occasions as well as sending many emails. These would be copied by the Claimant to many members of staff, including the Assistant Director of Housing. The Claimant was making various challenges in relation to both his homelessness application as well as his housing register application. He was also making complaints about how the process was being handled. These included allegations by the Claimant that members of the Greenwich team were racist and discriminating against him. As well as upsetting members of the staff this came to the attention of the Assistant Director of Housing. In this climate, it was decided a meeting would be held.

9. On 21 September 2016, this meeting took place between the homeless service team, the allocations team, the Assistant Director of Housing and the legal team. During this meeting, the extent of the Claimant's offending history was discussed as well as his past rent arrears. Although prior to this she did have access to this information, it was only at this stage that Ms Coral Sewell fully appreciated the seriousness of the Claimant's previous convictions. She had only found out about the past rent arrears the previous day. This led to the letter of 23 September 2016 suspending the Claimant from the housing register."

53. In paragraph 37(ii)(1), the Respondent was responding to the Applicant's claim that he had a legitimate expectation that the Respondent would not take his convictions into account, in the light of the representation to that effect in Ms Sewell's email dated 23 August 2016. The Respondent's legal submission was that, even if a legitimate expectation arose, it could properly be overridden in the public interest, for the reasons set out in paragraph 37. One such reason was that Ms Sewell had not appreciated the extent and seriousness of the Applicant's criminal record when she sent the email of 23 August 2016. In particular she was unaware of the full nature of the 2009 conviction; in support of this, the Respondent relied upon the fact that her email referred to "your past conviction" in the singular.
54. In paragraph 39(i), the Respondent was responding to the Claimant's argument that it had no power to revisit and reverse the decision of 14 September 2016 to enter the Applicant on to the housing register. The Respondent submitted that it did have such a power, in the exercise of its discretion under the Housing Act 1996 Pt 6 and under its Allocations Scheme. In the alternative, the Respondent submitted it could revisit the decision of 14 September 2016 because Ms Sewell's oversight in failing to appreciate the particulars and seriousness of the Applicant's past convictions amounted to a fundamental mistake of fact.
55. The essence of the Applicant's submission was that it was false or misleading for the Respondent to state that Ms Sewell overlooked the extent and seriousness of his convictions. The true reasons for the adverse decisions were malicious victimisation and racial discrimination. Ms Sewell must have been aware of both of his convictions at all material times, and in support of this contention, he referred to (1) the Respondent's records for him which included prison addresses between 2008 and 2012; (2) the Housing Options and Support Services Form, dated 18 April 2016, which set out his offending history; (3) the letter of 27 April 2016 excluding him from the housing register which cited his past convictions (in the plural) as a reason; (4) the Case Review Panel's decision of 23 June 2016, chaired by Ms Sewell, referred to his drug-smuggling offences and its decision letter of 29 June 2016 which stated "your past convictions are considered to be anti-social"; and (5) the PNC record received by Ms Sewell on 2 August 2016.
56. It is a highly important point in the Respondent's favour that it made it clear to the court that, at all material times, it held information about both the Applicant's previous convictions, which was available to Ms Sewell. This was expressly accepted by HH Judge Wall QC (paragraph 18 of his judgment), so he was not misled on this point.
57. I am not satisfied that the Respondent's description of Ms Sewell's state of mind and her oversight was false or misleading. I found Ms Sewell's evidence on this issue to be credible. She admitted that the Respondent held information which gave details of both the Applicant's offences. However, she explained that she received dozens of emails each day, and managed a very busy team of 24 people. She was under significant time pressure and could not consider all the available information. In addition, the Applicant's file was very large and it was difficult for her to get on top of every detail. The Applicant was making so many demands on the department's time, by sending repeated communications, and submitting multiple complaints, that the Assistant Director of Housing later had to place restrictions on his contact with Council officers. At the time she sent the email of 23 August 2016, which only referred to one conviction, she had not appreciated the fact of the Applicant's 2009 conviction and its seriousness. At that time, there was no reason for her to consider his offending history in any detail, as the Respondent had decided to focus on the 5 year residency requirement. However, at the meeting of 21 September 2016, his offending history was discussed in some detail, and this was the first time she fully appreciated its extent and seriousness.
58. In the light of this evidence, it was very difficult indeed for the Applicant to establish a strong prima facie case that the Respondent's account of Ms Sewell's state of mind was false or misleading and, in my view, he failed to do so.
59. HH Judge Wall QC's decision did not turn on whether or not he accepted the Respondent's account of Ms Sewell's state of mind or her oversight. He found, at paragraph 20, that it was arguable whether or not there was a clear representation in the email of 23 August 2016. However, he concluded that the Applicant's case was bound to fail because the Applicant did not place any reliance upon the representation.
60. The Applicant also submitted that the Respondent made a false or misleading statement in paragraph 39(i) by referring to the "particulars" of his past convictions because the Respondent never had full particulars of his convictions. The Applicant also submitted that the Respondent was implying that it obtained such particulars after the decision of 14 September 2016. I did not accept the Applicant's submission. The term "particulars" in paragraph 39(i) did not bear any specific technical meaning, and was not a false or misleading term to describe the information which was available to the Respondent, from the PNC and other sources. The Respondent did not state, expressly or impliedly, that it had acquired further information about his convictions after 14 September 2016 which led to the suspension decision on 21 September 2016. Again, this had no bearing on the decision made by HH Judge Wall QC.
61. In paragraph 38(iii), the Respondent was responding to the Applicant's claim that he had not been given reasons for the suspension decision on 23 September 2016. The Respondent submitted that reasons for the suspension decision were given in the email dated 12 October 2016, where Ms Sewell told the Applicant that his past offences and housing related debt were the issues under consideration. The Applicant submitted that this was a deliberate misrepresentation because in fact the Case Review Panel had already met when this email was sent - it met on 10 October 2016 - so the Applicant was deprived of the opportunity to make effective representations against his exclusion in advance of the decision. The Applicant submitted that the Respondent deliberately withheld this information from him when the Part 6 housing file was disclosed (see the email exchange of 11 and 12 October 2016 between Ms Sewell and the Applicant, referred to above).
62. In my judgment, the statement made by Ms Sewell in the email of 12 October 2016, which was quoted in paragraph 38(iii) was neither false nor misleading. She said: "your past offence(s) and housing related debt are the issues under consideration and you will be notified of the outcome of this review shortly." Those were the issues under consideration, as the decision letter of 18 October 2016, sent shortly thereafter, confirmed.
63. In the Summary Grounds of Defence, the Respondent's legal team submitted in the alternative that, if there was a duty to give reasons, it was satisfied by Ms Sewell's email. Whether or not this email was capable of discharging a duty to give reasons, given its brevity and timing, was a question of law, not a fact verified by the Statement of Truth.
64. I accept the Respondent's submission that there was nothing fraudulent about the Respondent's reliance on the email. Although the Case Review Panel met on 10 October 2016, the exclusion decision did not have legal effect until it was notified to the Applicant subsequently. It remained open to the Applicant to make representations following receipt of the email.
65. HH Judge Wall QC concluded, at paragraph 20, that the suspension decision had been superseded by the exclusion decision. In any event, the Applicant was well aware of the issues which were being investigated and there was no procedural unfairness.
66. In conclusion, applying the principles of law and practice set out in paragraphs 4 to 7 above, the Applicant has failed to establish a strong prima facie case that paragraphs 37(ii)(1) or 38(iii) or 39(i) of the Summary Grounds of Defence contained false and/or deliberately misleading statements. Furthermore, taking into account the terms of HH Judge Wall QC's judgment, confirmed as correct by Gloster LJ, there is no public interest in taking contempt proceedings against the Respondent, in respect of the actions of its employees Ms Elliott and Ms Sewell. Therefore the Applicant's application for permission to make a committal application is refused.
67. The Respondent has applied for its costs in the sum of £3,920 plus VAT. The Applicant has filed written objections which I have considered. As the successful party, I consider that the Respondent is entitled to its costs in full. I do not consider that the amount claimed is excessive, unreasonable or disproportionate. This was a complex application, because of the volume of detailed submissions and evidence relied upon by the Applicant. The Respondent's submissions and hearing bundle were of great assistance to the Court. The Respondent was entitled to instruct external solicitors, and indeed, since its own housing solicitor, Ms Elliott, was the subject of the committal application, it was well-advised to do so. On 1 March 2017, Fraser J. adjourned the hearing on the basis of the Applicant's ill health, and ordered costs in the case, i.e. whichever party was successful at the end of the proceedings would be entitled to the costs of the hearing on 1 March 2017. This order was not challenged by the Applicant. In my view, it was an appropriate order to make, in all the circumstances. Therefore the Applicant will be ordered to pay the Respondent's costs in the sum of £3,920 plus VAT within 28 days of the date of the order.