England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Appeals Office Room WG08 R oyals Courts of Justice Strand London WC21 2LL
		29th February 2012

Mr Justice Bean:

1. This is an application for an extension of time in which to appeal and for permission to appeal against an order for possession made by His Honour Judge Rylance, on 10^th August 2011 at the Wandsworth County Court, in respect of 31 Cresset Street, London, SW4 6BW. In its original form it was made against persons unknown. The hearing followed a first hearing before the same judge on the 15^th July, of which more later.
2. The Defendant Mr Chonorowicz was present at the July hearing but not the August one. At the July hearing he was assisted and informally represented by Mr Sebastian Kornhauser who has also addressed me on his behalf today and submitted a detailed skeleton argument.
3. On 12^th September 2011 Mr Chonorowicz, again with the assistance of Mr Kornhauser, applied to Judge Rylance to set aside the possession order made in his absence on the 10^th August.
4. Although this is not in form an application for permission to appeal against the 12^th September decision as well as the August one, I propose to treat it as dealing with both.
5. Mr Chonorowicz, with his partner and their three children, the eldest of whom is aged nine years and the youngest nine months, have occupied the property for some time. It is not suggested that they have ever been granted a tenancy. They are regarded, in law, as trespassers. Nevertheless, Mr Kornhauser has put to me a number of issues which he says show an arguable case that the judge should not have granted a possession order.
6. The first can be dealt with very shortly. Complaint is made that no notice to quit or notice of intention to seek possession was served. This is correct, but in the case of trespassers no such notice is required.
7. The second point is the most substantial. Mr Kornhauser argues that the Defendant and his family, having been in occupation at least since January 2011, had a better title to the land than the Claimant at the time that proceedings were issued and also at the time that the case first came before the Court.
8. The claim was issued on 24^th June last year. The Claimant's evidence included a copy Land Registry entry with a plan which included Cresset Street, but a statement saying that the land owned by the council shown on the plan included a number of properties in Cresset Street and elsewhere, the Cresset Street properties being "1 to 18 Cresset Street". The numbers 1 to 18 do not, of course, include number 31. Therefore, says Mr Kornhauser, the evidence shows that the Claimant was not the legal owner of the property either at 24^th June or at 15^th July.
9. The judge, he says, should have dismissed the claim on the spot. What the judge did instead was to adjourn the claim for possession at the request of the Claimant's advocate so that further evidence could be obtained from the Land Registry. At the adjourned hearing on 10^th August a fax was produced from the Land Registry indicating that the previous certificate had been erroneous and enclosing a new one in which the properties said to be described in the register entry included 31 Cresset Street. The judge then granted the order for possession.
10. At the hearing of the application to set aside on 12^th September, Mr Kornhauser argued the same point as he has argued before me. The judge dealt with it in his judgment at paragraphs 23 onwards. He rightly said that the issue was whether Lambeth owned the property at the time of issuing the proceedings. He noted that the property register, the proprietorship register and the charges register, that is all the elements of the Land Registry records, contained no reference whatsoever to any transfer or charge or sale of 31 Cresset Street, or any property which could possibly include 31 Cresset Street, at any time in 2011 up to the date of the hearing before him, that is the 12^th September.
11. Having regard to that fact and the new material from the Land Registry which was before him, he came to the conclusion that the earlier version of the register, that is the one produced to him on 15^th July, was erroneous. He said at paragraph 26:

"It therefore seems to me that the overwhelming evidence is indeed that the Claimant did own this property at the time that it commenced proceedings, and at all relevant times thereafter, and does own it today. It is therefore entitled to assert its right to possession"

12. Mr Kornhauser refers to the famous case of Mabo -v-Queensland, the decision of the High Court of Australia about aboriginal land claims. With respect, it does not assist him in the present case. The Claimants were the original owners of the relevant land. Their ancestors and predecessors in title had owned it before the state of Queensland or the Commonwealth of Australia were ever constituted.
13. Mr Chonorowicz is not in that position. He has never had title to the land. The judge was correct in his approach, namely to consider whether Lambeth had demonstrated that it held the freehold title to the land on 24^th June 2011, and his finding that they did was quite plainly correct. It was not a breach of Article 6 of the Strasbourg Convention nor of any other principle of English law for him to grant the Claimants an adjournment on 15^th July.
14. I turn next to the issue about the August hearing. It was common ground at the September hearing that at the conclusion of the July hearing Judge Rylance had announced in open Court that he was adjourning to the 10^th August 2011. Mr Kornhauser tells me, and I am prepared to accept, that he thought the judge said that he was adjourning to the first open date after 10^th August, but the judge acted entirely properly in announcing the adjourned date orally. Indeed, if one is looking to the formalities, as Mr Kornhauser has done, it is difficult to see what else the judge could have done by way of notice of the hearing.
15. Mr Chonorowicz was, at that stage, not a named Defendant in the claim. Mr Kornhauser was not and is not a solicitor with litigation rights, formally on the record and entitled to accept service on behalf of a client.
16. In a case where the Defendants are described as 'Persons Unknown', notice of a hearing is usually given by attaching a document to the property, but it was not suggested by anyone that this was necessary or even sensible in a case where the first hearing had been conducted on the basis that Mr Chonorowicz and his family were in fact the people in occupation. Mr Kornhauser has reminded me of the decision of the Court of Appeal in Forcelux -v-Binnie, in which Mr Justice Warren said that a possession hearing of the kind which took place in the present case on 15^th July and 10^th August is in the nature of a summary procedure and any order made against a Defendant in his absence can be set aside on good grounds.
17. Since the judge, if I may say so, very sensibly, went into the merits at the September hearing rather than turning away Mr Chonorowicz and Mr Kornhauser on the technical ground of failure to attend the August hearing, there is nothing in this point in any event. The judge was not to know at the August hearing that Mr Kornhauser had misheard him when he announced the date of that hearing at the end of the 15^th July hearing.
18. The next issue is that the grant of a possession order arguably violated the Article 8 rights of Mr Chonorowicz and his family, but that argument in untenable in the light of the decisions of the Supreme Court in Manchester City Council -v-Pinnock, and Hounslow Borough Council -v-Powell. Each of these concerned types of tenancy granted by the relevant local authority. In Pinnock at paragraph 54 Lord Neuberger said that:

"in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate."

19. The local authority's position is, in my judgment, stronger still where the occupier is not and never has been a tenant.
20. I accept the submission made on Lambeth's behalf, that to hold that Article 8 gives the Defendant the right to occupy the property would amount to the Court sanctioning queue jumping and disrupting or interfering with the difficult task of the local authority in allocating its limited housing stock among many cases of pressing need, in accordance with its scheme of priorities.
21. Mr Kornhauser further submits that the proceedings in the County Court were unfair to Mr Chonorowicz because he did not have legal aid and did not have an interpreter. As to the interpreter, it does not appear that any application was made, unlike in this Court where Mr Chonorowicz has been assisted by an interpreter.
22. As to legal aid there is no right under the Strasbourg Convention or otherwise, to legal aid to defend a claim for possession, other than perhaps in the most complex cases involving tenancies, but in any case Mr Kornhauser is not doing justice to his own skills. He has deployed a great deal of learning before me and I do not consider that any solicitor or barrister acting under a legal aid certificate could have done any better on Mr Chonorowicz's behalf. The fact is that in my judgment there is no arguable ground on which Judge Rylance's two decisions can be said to be wrong. I therefore refuse permission to appeal.