English and Welsh Courts - Miscellaneous

IN THE WANDSWORTH COUNTY COURT

		76-78 Upper Richmond Road Wandsworth London SW15 2UU
		12th September 2011

His Honour Judge Rylance:

1. This is an application by occupiers of property that is said to be owned by the London Borough of Lambeth to set aside an order of possession, which I made in their absence on the 10^th August 2011. I have allowed a Mr Cornhouser, normally a McKenzie Friend, to address me on their behalf, as the occupiers are of Polish nationality and do not speak English, and I am grateful to Mr Cornhouser for his assistance, as indeed should be the occupiers.
2. The occupiers albeit initially named as persons unknown, have now been joined as Defendants, and necessarily must be named Applicants in their application to set aside. I hope they will forgive me if I mispronounce their names, but they are Grzegorz Chonorowicz and Daria Lattas.
3. The proceedings out of which this application arises were taken by the London Borough of Lambeth as proceedings for possession against trespassers, those trespassers being unnamed and therefore described as persons unknown. The matter came before me on the 15^th July 2011 when the occupiers, who have now been named, attended and Mr Cornhouser also attended on their behalf and addressed me.
4. Mr Cornhouser produced on that occasion a document which was described as 'grounds of resistance', and I considered many of those matters on that occasion, but it came down, in my judgment, to two matters which were worthy of further consideration. Firstly, whether the London Borough of Lambeth had proved its ownership of the property in question, and secondly, whether it was proportionate and in accordance with the Article 8 rights, if any, of the occupiers, to make an order for possession.
5. The London Borough of Lambeth, in support of its claim for possession, set out in an affidavit an assertion that it did indeed own this property. This property is part of a larger block of properties which was in its possession and which it let out in the usual way as local authority accommodation. It asserted that this property had until recently been occupied by a tenant, with the London Borough as the landlord, but that the tenant had surrendered the property on the 16^th January 2010 in order to move to, I think, smaller, or at least more appropriate accommodation.
6. In support of the assertion that it owned the property the London Borough produced an official copy of the Land Registry certificate, but as pointed out by Mr Cornhouser, and indeed this became entirely apparent, the Land Registry certificate, in its description of the freehold land owned by the Claimant, did not include 31 Cresset Street.
7. On behalf of the London Borough, counsel then appearing pointed out that although he accepted the description did not include 31 Cresset Street, nonetheless, the plan attached to the Land Registry certificate did indeed show this property as part of the title of the Claimant.
8. As I said I considered not only that point, but I considered many of the other points made in the grounds of resistance and I at least partly considered the question of the proportionality of making an order, but it seemed to me that unless the Claimant was able to establish its ownership of the property the other points did not at that stage need to be considered.
9. I therefore adjourned the hearing until the 10^th August in order for the Claimant, if it could, to establish, by production of a register of title, its ownership of the relevant property.
10. It is accepted by Mr Cornhouser that that date of the 10^th August for the adjourned hearing, was spelt out by me in open Court and that that was clearly to be the date at which the matter would then be reconsidered.
11. By that adjourned date the Claimant produced an official copy of the register of title that did now include 31 Cresset Street, the relevant property, it being included in a description of property of 25 to 35 Cresset Street.
12. The date of the copy which they now produced was the 19^th July 2011, and Mr Cornhouser now makes the point that that only proves, if it proves anything at all, ownership by Lambeth of the relevant property as at the 19^th July. It did not prove that they owned the property at the time that it brought these proceedings.
13. I accept as a matter of principle that, of course, the Claimant, any Claimant must, when commencing proceedings, own the property for which it is claiming possession, and must still own the property at the date that the order of possession is made. So the question is whether the official copy of the register of title, dated the 19^th July, shows a situation which existed at that date, but did not exist at the time that the proceedings were commenced, in, I think June or July, or whether it merely corrected a situation and properly now described a situation which had existed at all material times.
14. On the 10^th August the matter came back before me as ordered, but somewhat to my surprise I am bound to say, the occupiers did not attend and Mr Cornhouser did not attend, and I therefore made an order for possession forthwith in their absence. I also gave a short ex tempore judgment dealing with this question of ownership and dealing also with the question of proportionality of making an order, and saying that the other points that have been raised in the grounds of resistance had no merit, and it is right to say that none of those other points have been pursued in this hearing.
15. That order having been made and served upon the occupiers, they, or at least the male occupier, made an application to the Administrative Court for relief, namely I think to set aside the order on really the same points that have been raised before me today, that there was no evidence that Lambeth owned the property and therefore there is no basis upon which that order could have been made.
16. The matter came before His Honour Judge Stephen Stewart QC on the 24^th August, and he dismissed the application for interim relief with the following reasons:

"1) It is not clear whether the Claimant has exhausted his remedies in the County Court. If he has not then he should do so. If he has then he can seek permission to appeal to the Court of Appeal.

2) In any event there is no evidence of any exceptional circumstances which would permit the High Court to review the decision of the County Court."

As a result of that, the occupier, the Defendant, sought to exhaust his remedies, namely by making the application to set aside, which clearly was the proper step to have taken.

17. The other ground for that application to the Administrative Court is that the Defendants had had no notice of the hearing of the 10^th August, whereas, as I have already said, it is accepted by Mr Cornhouser that they did know about that hearing, that it was spelt out at the hearing in July, albeit, and I accept what he says as to this, that they apparently received no written notification of that hearing.
18. One of the matters I have to decide when determining whether an order made should be set aside is whether there is a good reason for the Defendants not to have attended at the hearing. I am bound to say that there is no good reason because, as I have said, it was accepted that the hearing date of the 10^th August was given at the hearing of the 15^th July, and they should have attended. I accept however that there may be a reason, and as I have already indicated, I was very surprised at the absence of Mr Cornhouser and the occupiers at the hearing in August, and I accept that there must have been some confusion which led to their absence.
19. What I propose to do is to consider the other matters which I need to consider and make a decision on the merits, rather than simply dismissing the application on the basis that there was no good reason for them not attending, as I think they would feel that they had not received justice were I to dismiss it on that basis.
20. The second matter I have to consider is whether they acted in good time, with alacrity, once they knew of the order that had been made. I accept that although they went off, in my judgment, in a wrong direction by going to the Administrative Court, nonetheless by virtue of that application, and the application made not long after to this Court for this order to be set aside, that they did act with reasonable alacrity and that therefore that matter would be decided in their favour.
21. The third matter I have to decide is whether they have any merit in their defence, and therefore I turn to the points that have been made as to the question of ownership and the question of proportionality.
22. The two official copies of the Land Registry certificate vary in one respect and one respect only, namely the first certificate produced and dated the 23^rd June 2011, does not contain any reference to 25 to 35 Cresset Street, and thus not to 31 Cresset Street. It does refer to a number of other properties, all of which are contained within the one title.
23. The second copy, dated the 19^th July 2011, does include that reference to the property and therefore to this property. The second copy is accompanied by a fax from the Land Registry on the cover sheet of which the officer concerned, says this:

"Please find enclosed faxed copy of [title number] with correct address now in property description. The official copy has been sent first class today."

Therefore an indication from the Land Registry that there had been an error in the earlier copy which had been used and produced by Lambeth.

24. It is said by Mr Cornhouser that the fact that there is only a reference to this property in the entry of the 19^th July is no proof that Lambeth owned the property when the proceedings were commenced. However, there seem to me to be three points in relation to that. One, the assertion, as I have already indicated, by the Land Registry that there had indeed been an error previously. Secondly, if one looks through the Property Register and the Proprietorship Register and the Charges Register, there is no reference whatsoever to any transfer, any charge, any disposition of any nature of any property which could possibly include the property in question of 31 Cresset Street. Indeed there is no transfer or other disposition mentioned at all in 2011. All dispositions are referred to as having taken place very much sooner.
25. If therefore Lambeth did not own this property when they commenced the proceedings in, I think June, but did own it by the 19^th July, there must necessarily have been a reference to a transfer in the Land Registry certificate taking place between those two dates. There is none. That would therefore, in my view, indicate that the earlier version of the register was therefore erroneous in having omitted this particular property, as is indicated by the fax from the Registry, to which I have referred.
26. The third point is that the plan attached to the two certificates, and which clearly includes 31 Cresset Street, is identical in both versions of the Land Registry. There has been no alteration in the plan. The plan which is attached to the version of the 19^th July is identical to the plan attached to the earlier version. There is, therefore, not the slightest implication there that this property had been added to the Claimant's title between the commencement of the proceedings and the 19^th July. 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.
27. The Defendants, through Mr Cornhouser, say that they have a better right to possession since they are actually in possession, but that assertion necessarily must be based upon the inability of the Claimant to prove its ownership. Once that has been proved, as I am satisfied that it has, then it is clear, in my view, that the Defendants can only rely upon their possession of a property if a right to it has been granted, either by the Claimant or some predecessor in title. They do not assert any such consent, or tenancy, or licence to them occupying this property. They accept that they have occupied it by taking possession of it as trespassers.
28. In those circumstances, subject to the proportionality point, the Claimant would be entitled to possession, so I now turn to the question of proportionality. I have been referred to, and provided with a copy of the decision of the Supreme Court in Manchester City Council -v- Pinnock [2010] UKSC 45, and I have re-read that and the relevant parts of it today.
29. The Article 8 rights of the Defendants, if any, are said to be as follows:

"Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

30. The first question that arises in my mind, although not pressed on behalf of Lambeth, is whether Article 8 bites at all. In paragraph 61 of the decision in Pinnock, the Supreme Court said this:

"First, it is only where a person's 'home' is under threat that article 8 comes into play, and there maybe cases where it is open to argument whether the premises involved are the defendant's home (e g where very short-term accommodation has been provided)."

It seems to me that the question whether property, which has been effectively seized by trespassers without anyone's consent, can be regarded as their home, is one that may need to be considered elsewhere, and therefore, if not, whether Article 8 rights apply at all in respect of trespassers.

31. However, I propose in this hearing to proceed upon the basis that Article 8 rights are engaged and that the property is indeed the home of the occupiers and their family. Therefore I have to consider whether an interference by the public authority, Lambeth, with the exercise of the right to respect for their home, is in accordance with the law, whether it is necessary in a democratic society, in the interests of economic well-being, or for the protection of the rights and freedoms of others.
32. It seems to me that I can decide this summarily, in accordance with the passage in paragraph 61 of Pinnock, as follows:

"Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier. Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained."

In the light of that I have decided that I can deal with this matter summarily and can consider whether or not the point having been raised is one that is likely to affect the making of an order for possession, and therefore whether the order should be set aside upon the basis that there is a prospect of success.

33. As I said, I have read Pinnock, but I think I need only refer to paragraph 54, which reads as follows:

"Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right - indeed the obligation - of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow -v- Qasi [2004] 1 AC 983, 997, para 25:

'[T]he administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification.'

Therefore, 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. However, in some cases there may be factors which would tell the other way."

34. It therefore seems to me that I need to look at the particular circumstances of these occupiers. They are partners, not married to each other but to all intents and purposes, husband and wife. They have three children, the youngest of those is a seven month old baby, said to have a heart condition, although I have seen no written evidence of that. They came to this country from Poland in June 2009, and one is aware of the economic circumstances that has led, not only them, but a number of other Polish and other East European citizens, to come to this country. They came to work.
35. They took up occupation of this property sometime in 2011 it seems. Where they were living between June 2009 and then I know not, but it appears that the male occupier works, they may therefore have the means to obtain other accommodation, I know not. But it does not seem to me that their circumstances are that much different from many people who have children, who have clear housing needs, may have very young children and have clear housing and protection needs, and indeed may have medical needs and schooling needs as well.
36. What is said on their behalf is that they are entitled to stay in this property because they have taken possession of it, it is their home, and the local authority should not be entitled, given their personal circumstances, to obtain possession against them.
37. It does seem to me, having looked at Pinnock, in particular the passage that I have just read out, that in most cases it would be proportionate to make an order, but there may well be perhaps exceptional cases where it would not.
38. It does seem to me that an argument that individuals can take possession unilaterally of property which is empty and which is owned by local authorities pending decisions as to what to do with the property, and who else might occupy it, pursuant to the housing duties which that local authority might have, that those persons could come along and effectively put themselves at the head of the housing list, take over possession of property without anybody's consent, and for the local authority not then to be able to obtain possession against them, seems to me to be the road to anarchy.
39. It does seem to me that the economic well-being of a country requires that local authorities and other persons with housing stock, be they individuals, housing associations, local councils or whatever, should be able to determine in a proper, organised, democratic way the carrying out of their duties for the housing of those people in their area, and how they will carry those out, particularly in respect of homeless persons, and that in a democratic society people should not be able to circumvent that by taking possession of property unilaterally.
40. That way the protection of the rights of the local authority and other housing associations and so on, the freedom of those local authorities to make their own decisions, the freedom of other individuals not to be pushed down the waiting list by those who would seek to take unilateral possession of property, can equally be protected.
41. Given all those circumstances, it seems to me that it is entirely proportionate, and in accordance with the Article 8 rights, if any, but I assume that they have them, as I have said, of these occupiers. In those circumstances they would have no prospect of successfully defending these proceedings and I reject their application to set aside the Possession Order made.