HERTSMERE BOROUGH COUNCIL v (1) DOMINIC HARTY [2001] EWCA Civ 1238

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE BRUNNING
(Sitting as a Deputy Judge of the High Court)
[2001] EWCA Civ 1238Case No A2/2001/0731/AVenue Royal Courts of Justice, Strand, London WC2, Thursday, 21st June 2001
Between
HERTSMERE BOROUGH COUNCILAppellant(1) DOMINIC HARTY(2) JOHN CASEY(3) MR SMITH(4) AARON JONES(5) PERSONS UNKNOWNRespondents
Before
Lord Justice SedleySir Murray Stuart-SmithMR MCCRACKEN (instructed by Sharpe Pritchard, London WC1V 6HG) appeared on behalf of the AppellantMR HUNT (instructed by Lance Kent & Co, Buckinghamshire HP5 1EG) appeared on behalf of the RespondentDate 21 June 2001
[1]Thursday, 21st June 2001 LORD JUSTICE SEDLEY: Mr McCracken has applied to the court, in his words, to reconsider - but the words of the rule are that it has to be to set aside the permission to appeal which I granted on the papers on 3rd April this year.[2]The power to set aside a grant of permission to appeal is given by Rule 52.9(2) of the Civil Procedure Rules and requires a compelling reason for so doing. I would remind those thinking of making such applications, as the note in the White Book reminds them, that this is not an opportunity to have an early shot at knocking out a weak appeal or an appeal which is now thought to be weaker than it once was. But it must be the case that if a respondent can show the court that the judge was misled by an appellant, not necessarily deliberately, into giving permission to appeal, that may well be a compelling reason within the rule. It must, however, it seems to me, involve showing(a) that the materials put before the judge were inaccurate or incomplete;(b) that these deficiencies had a bearing upon the grounds on which permission to appeal was given; and(c) very importantly, that but for them permission to appeal would not have been given.[3]The order appealed in this case is an interim injunction which effectively gives the local authority the entirety of what it is seeking in the substantive proceedings. Axiomatically a high standard is required to be arrived at by a claimant seeking and obtaining such relief. It orders the defendants (the first named of whom owns the land covered by the order) as caravan dwellers to cease using the land for stationing caravans, to remove all caravans from it and not to permit any further such use without planning permission.[4]The claim was issued under Part 8 of the Civil Procedure Rules on 28th February 2001 seeking relief under section 187B of the Town & Country Planning Act 1990. (In answer to the question "Does your claim include any issues under the Human Rights Act 1998?" The local authority has ticked the "No" box - something which seemed to me to be remarkable in the light of the Chapman case, until Mr McCracken pointed out that the question is perhaps unfortunately phrased in that it would do better to say "involve" rather than "include"). The claimant asks for a final order in the terms of the draft annexed to the claim which was, as I understand it, substantially the draft that became the interim order. After a hearing with counsel on both sides, Judge Brunning (sitting as a Deputy Judge of the High Court) made the order asked on 13th March 2001.[5]In circumstances which I accept were inevitably rushed, given the 14-day time limit and the almost unavoidable difficulty of liaison between the Legal Services Commission and the Department of Social Security over means, notice of appeal was filed on the final day. As yet there was no transcript; instead all that the papers which I considered included was a note taken by the defendant's solicitor. This, now that I have the transcript, can be seen to be a poor note. The want of an adequate note is a breach of both counsel's and solicitor's obligations. In needs to be said very clearly that both counsel and solicitor (but if counsel is there, primarily counsel) have an obligation to take the fullest possible manuscript note of a judgment even where it is known that an official transcript will eventually be available, precisely because of the possibility that a decent note of the judge's reasons will be required before the transcript can be provided.[6]Mr Hunt has honourably accepted before us today that he is responsible for the absence of an adequate note. The inadequacy in the present case, as we now learn, was compounded by the fact that Mr Hunt did have a note of his own but that nothing was done to merge it with his instructing solicitor's note to try to obtain a better text, much less to submit an amalgamated draft to the other side so that the benefit of their note or recollection could be added and something more closely approaching what the judge said be put before this court. Mr Hunt, however, working as he was against the clock and using his own note and recollection did include in his skeleton argument at more than one point fuller information about the judge's decision than appeared from the sketchy note. To that extent the court was not quite as short of data as it might otherwise have been.[7]Mr Hunt's grounds for appeal were these. "The Learned Judge, in granting the interim injunction sought by the Claimant, erred in law in four respects:(1) in holding that the Claimant Council was not required as a matter of law to carry out welfare inquiries into the particular circumstances of the Defendants and their families before taking its decision to evict the Defendants by seeking an injunction;(2) in holding that the Claimant Council had acted compatibly with Article 8 ECHR, in circumstances in which the Council had not obtained the necessary information to enable it to carry out the necessary exercise of determining the proportionality of the interference with Article 8 rights;(3) in holding that the Claimant Council did not err in law in treating Article 8 as a mere 'material planning consideration'; and(4) in granting the interim injunction, in circumstances in which the Claimant Council had failed to obtain the necessary information about the Defendants and failed to carry out a proper Article 8 balancing exercise, and before a Planning Inspector carries out that balancing exercise at the inquiry into the Defendants' appeal against the refusal of planning permission, the Court itself acted in breach of Article 8 and therefore unlawfully under s 6(1) HRA 1998."[8]I considered these grounds, and the arguments in support of them, in the light of the fact, as it seemed to me (although this may be unjust), that instead of coming on as a trial in its due turn, the action, with the potentially difficult issues it raised, including some problematical human rights questions, had been put before a deputy Queen's Bench Judge in the interlocutory list, and that the judge might perhaps not have been afforded the time and assistance that the issues deserved.[9]However, the judgment of Judge Brunning which we have now seen, while Mr Hunt has been able to criticise it for at least one omission, namely of any consideration of the possible shortfall in facts before the local authority, is a very full and clear judgment running to 14 pages, and a very different thing from the note from which I was working.[10]The reasons set out by the claimant local authority for setting aside permission to appeal, which Mr Hunt in his skeleton argument in response has identified, are these:[11]Ground (i): The long history of unsuccessful planning appeals was omitted, says Mr McCracken, from the material put before this court. As the transcript now shows, this history went back to 1989 or 1990; although it is true as Mr Hunt says that the judge mentions only the first and not the more recent of them. Importantly in 1995 the third defendant, Mr Casey, it appears, gave an undertaking to leave this land and not to return - something which is mentioned by the judge early in the judgment. However, no application has been made to commit Mr Casey for breach, nor to stay this appeal until he purges his contempt. There the matter must rest.[12]Grounds (ii) and (iv) The solicitor's note records that the defendants had an opportunity to appear before the planning committee; in fact, as the transcript records the judge saying, they did appear with experienced solicitors to represent them and they were allowed to address a committee which already had from those solicitors letters setting out the defendants' personal circumstances. While it is true that this was not perceptible from the solicitor's note, paragraph 7 of Mr Hunt's skeleton argument in support of permission to appeal filled much of that gap, and in fairness to him I shall quote it:
"The Learned Judge erred in law in holding that the Claimant Council was not required as a matter of law to carry out inquiries of a welfare nature before taking its decision to evict the Defendants by seeking an injunction. The Learned Judge held that the Claimant Council was entitled to take into account that a firm of solicitors as experienced as that representing the Defendants was aware of the needs of the individuals on the site and well able to put before it all the relevant material and that, in light of the information before it when it took its decision, the Council was not required to carry out the detailed analysis recommended in the DETR's Good Practice Guide, Managing Unauthorised Camping. On ground (iii) the suggestion in the solicitor's note of judgment that the judge had found a failure to carry out an inspection is, it turns out, an unfortunately truncated account not of what the judge found, but of what Mr Hunt had submitted to the judge. In his skeleton argument to us Mr Hunt suggests that it is inconceivable that this could have contributed to the grant of permission to appeal. I am afraid he is wrong in that regard. It is certainly conceivable that this error may have had an influence upon the grant of permission on grounds 1 and 2; but Mr Hunt is right to submit that paragraph 9 of his skeleton, which was also before me and on which I now place some weight, was more specific. It said this. "
It is common ground in this case that the Council did not itself undertake any welfare inquiries. It relied entirely on the material which had been placed before it by the defendant's legal representatives. The witness statements of Mr Casey and Mr Jones, which were compiled in great haste the day before the hearing due to the short notice of the application, contained a great deal of evidence about the detailed circumstances of the individuals and how they will be affected by eviction, which was not contained in the letters sent to the Council before it made its decision to proceed with an application for an injunction."[13]On grounds (v) and (vi) it is Mr McCracken's case that the solicitor's note makes no reference to the judge's extensive consideration of Chapman (European Court of Human Rights) or of the DETR Good Practice Guide which deals with the necessary care to be taken before using the criminal law to evict gypsies from land on which they are trespassing - which was of course not in strict terms the present appellant's situation. Mr Hunt however can legitimately say that what his skeleton argument focused on was not whether the judge had deliberated openly on these two matters, but whether the issues of law arising out of them had been adequately answered. The argument was not, in other words failure to address the questions, but failure to get the right answers to them. I will not say that I was uninfluenced by the apparent absence of any reference to these cases in the judgment; but it is a legitimate point on Mr Hunt's part that the arguments of law to which they give rise, if they are viable, do not depend on how the judge himself regarded them.[14]Looking at the grant of permission to appeal in light of these undoubtedly unfortunate and avoidable lapses, I ask myself whether I would nevertheless have granted permission to appeal in whole or in part, or whether I am driven to the conclusion – which I apprehend is what a compelling reason means – that I would not have done so.[15]Doing the best I can it seems to me that there clearly remains live and viable in this case an important question arising out of the Buckley and Chapman decisions, as to whether the obligation of both the local authority and the court to give effect to Article 8 is sufficiently discharged if it is approached as a planning issue. The planning history, while relevant, cannot, it seems to me, be conclusive. This critique, if it is a valid one, will apply even though it may well now be visible that the judge conducted something much closer to a merits review, not merely a more distant judicial review, in arriving at his judgment. Even so it is clearly arguable that he deferred in important respects to the local authority's judgment and it is questionable whether he should have done so.[16]What I do not now think is tenable is the submission that part of the shortcomings of the Council consisted in its failure to "make positive inquiries" or "to make welfare inquiries." All the relevant welfare information, on both the evidence before the judge and the findings made by him, was able to be assembled and conveyed by the defendants' solicitors not only at but in advance of the planning committee meeting. Insofar as there is said by Mr Hunt, regardless of this, to be a duty on the local authority to make its own independent inquiries, I regard the case now as unarguable in the light of the fuller information which is before the court. Such a positive duty may and on authority does exist. But that is not the question, and Mr Hunt does not do his case justice by seeking to suggest that that is the question. The question is whether, given the existence of such a duty, it always requires the local authority to undertake on its own initiative the necessary inquiries even if these partly or wholly duplicate the efforts made by solicitors or other advisors on the applicant's behalf; and even if they give rise, as they very likely will, to complaints that in such a situation the local authority is trying to undercut or undermine the solicitor's sumbissions by going out and getting different answers to the same questions.[17]This is a question of simple practicality. If the solicitor's submissions are poor or do not address the issues that need to be addressed then the local authority will not be able to hide behind that failure; its positive duty would not be fulfilled. But it seems to me unarguable that the positive duty goes further than this and involves replicating work that has already been done.[18]It follows that for my part I would now restrict the grant of permission to appeal to grounds 3 and 4 of those that I have read out, but taking out of ground 4 the words from "failed to obtain..." to "... defendants and..." so that it now reads:
"In granting the interim injunction in circumstances in which the claimant council had failed to carry out a proper Article 8 balancing exercise..."
[19]It does not seem to me that this impinges upon the major issue which is to be heard by the Court of Appeal in this case and in the other cases in the same group, but it does excise an element which I now think would be bound to fail and would hold up and perhaps distract from the issues of principle which are to be canvassed.

SIR MURRAY STUART-SMITH: I agree. I just add a word or two on what I regard as the importance of a proper and adequate note of the judgment being submitted to the Lord Justice who is charged with the responsibility of granting or refusing permission to appeal. It is the single most important document in the case. It is therefore of crucial importance that the note, if it is a note (and it very often is) in urgent appeals where there is not time to get a full transcript, accurately and as fully as possible records what the judge has said.

[21]In my judgment the note in question here lamentably failed to do so. It ought not to have been submitted in that manner without reference to the other side or without counsel looking at his own notes and seeing that it was a proper and full note. In my view the problem here has stemmed very largely from that failure to perform that duty. (Application allowed; costs to be costs in the appeal).

Cited in 7 later judgments