Elmbridge Borough Council v Sullivan [2005] EWCA Civ 1097

Case No B2/2005/0544[2005] EWCA Civ 1097
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HHJ DAVIES)
Venue Royal Courts of JusticeDate Thursday, 30th June 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE RIX
Between
ELMBRIDGE BOROUGH COUNCIL-v-
Between
SIDNEY SULLIVAN
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
for The CLAIMAINT did not attend and was not representedSIDNEY SULLIVAN appeared as litigant in person for in person
J U D G M E N T

LORD JUSTICE RIX:

[1]This is an application by Mr Sidney Sullivan for permission to appeal from the order of HHJ Davies sitting at Portsmouth County Court made on 1st March 2005. In that order, Judge Davies allowed the appeal of Elmbridge Borough Council, the respondent in this application, against the decision of District Judge Letts made on 29th June 2004 by which the latter had stayed Elmbridge's enforcement proceedings against Mr Sullivan pending the outcome of his application to the European Court of Human Rights. This is therefore a second appeal, meaning that under CPR part 52.132 permission should only be granted if the case raises some important point of principle or practice or there is some other compelling reason for this court to hear it. That is, of course, a narrow gateway.[2]These proceedings all arise out of a claim by Elmbridge, as I shall call them, for the repayment of housing benefit said to have been overpaid to Mr Sullivan during a period from April 1995 to April 2001 in the sum of just over £40,000. A decision that overpayment had occurred was recorded in Elmbridge's letter to Mr Sullivan posted to his last known address dated 25th June 2001. That letter made it clear, on its second page under the heading "Appeals", that if Mr Sullivan disagreed with this decision, he could ask Elmbridge to look at it again or he could make an appeal to the Appeals Service. That reference to an appeal was, in effect, to the Child Support Pensions and Social Security Act 2000 paragraph 66 of schedule 7 of which related to such an appeal to an Appeal Tribunal.[3]Mr Sullivan says that that claim letter, posted to his address, never came to his notice because he was no longer living there. The Council say that there was, nevertheless, personal service upon Mr Sullivan made on behalf of Elmbridge by a Mr Steven Cox who, in his statement of 2nd May 2003, says that he was employed as a counter-fraud investigator by Job Centre Plus, an executive agency for the Department of Work and Pensions and that on 9th August 2001 he was on duty at Staines Police Station when he handed a copy of the decision notice, to which I have referred, to Mr Sullivan in the presence of his solicitor, Sharon Baines.[4]He said that he recollected that Mr Sullivan made a comment when he had seen what the notice was about to the effect that he was entitled to every penny of the benefit paid. Attached to that witness statement, Mr Cox annexed a copy of his contemporaneous note about that service.[5]Mr Sullivan disputes that evidence and he has obtained a letter from Sharon Baines dated 2nd April 2004 to say that if the Council had served him in person, then she would have made a note of it which, apparently, she had not. Or, at any rate, no such note is to be found in the relevant documents concerning her representation. Mr Sullivan was at the police station because he was charged with false accounting, possibly other charges as well; he tells me that there were originally some 50 or more such charges but that he pleaded guilty to 11 or 12 of them. On 23rd August 2002, as the papers disclose, he pleaded guilty to 12 counts of false accounting in relation to Housing Benefit and Council Tax Benefit. On 18th October 2002, he was sentenced to 12 months' imprisonment.[6]In the meantime, there being no request from Mr Sullivan for a review by Elmbridge or an appeal from the decision letter -- Mr Sullivan says because he never received it -- Elmbridge proceeded to enforcement of their decision and they sought to do that by obtaining an enforcement order for recovery of an award, which they did,in the Epsom County Court, under CPR 70.5, on 11th October 2002. That order was in the total amount of just over £44,000. It is not clear when Mr Sullivan obtained notice of that enforcement order having been made but, at any rate, it was not until his release from prison in the following year that he took steps to set that enforcement order aside.[7]Unfortunately when, in the course of those proceedings, he did obtain a copy of the decision letter of 25th June 2001, he never sought to exercise the procedure for appeal from that decision letter, possibly because the decision letter said that any such appeal should be brought within one month of 25th June 2001. In any event, the procedure that Mr Sullivan did use in order to seek to set aside not the decision letter but the enforcement order of October 2002, was an application to the County Court. That application came before District Judge Payne on 13th May 2003 but was refused and on appeal it was considered first on paper and then at an oral hearing by HHJ Hull.[8]Judge Hull's written decision dated 11th July 2003 sets out why permission to appeal was refused as having no real prospect of success, on the basis that Elmbridge was entitled to apply under CPR 70.5 to enforce the award, the court officer was obliged to accede to the application and the court had no power to set it aside; results which followed from section 75 subsection 7 of the Social Security Administration Act. Enforcement proceedings then continued with an order being made for Mr Sullivan to attend court for an oral examination as to his means on 19th December 2003. Mr Sullivan's response was to issue judicial review proceedings and he did not attend for an oral examination. Those judicial review proceedings were refused first by Wilson J on the papers and seconds by Sullivan J following oral hearing on 5th April 2004.[9]On that day, Sullivan J gave a judgment in which he went through the history of the matter, referred to the evidence of service relied upon by Elmbridge, made the point relevant to judicial review proceedings that there plainly was evidence supporting the proposition that notice had been served upon the claimant, however much that was disputed by Mr Sullivan, but going on to make the point that whatever might have been the position about the service of that notice, there was no dispute that he had been told about the enforcement order on 18th October 2002, shortly before he was due to be sentenced. That provides the fact that I was uncertain of, a little earlier in this judgment, as to the time when that enforcement notice came to Mr Sullivan's attention.[10]The judge went through the chronology and pointed out that, despite being in prison, there was nothing to prevent Mr Sullivan from making a prompt application for judicial review, if that was the process he wanted to go down, which he had failed to do promptly. Therefore, as the judge concluded his judgment:
"... principally upon the ground of the very substantial delay in applying for judicial review in respect of what is in truth the order complained about -- [the enforcement order] that dated 11th October 2002 -- the renewed application must be refused."
Mr Sullivan, having sought to set aside the enforcement order, unsuccessfully, and then having sought judicial review and failed in both those respects considered that his next move was to make an application to the European Court of Human Rights, which he filed on 28th May 2004.[11]In that application, Mr Sullivan complained about the legality of the CPR 70.5 process. As a process, his complaint apparently was not in relation to the original decision process and the statutory provisions relating to a possible review or an appeal from that decision, but he focused upon the process for execution of the award constituted by that unreviewed and unappealed decision letter. In effect, Mr Sullivan complains that the enforcement procedure was at fault and could be attacked under Article 6 of the ECHR in that it did not require Elmbridge to justify the legitimacy of the award. The position is that that complaint, before the Strasbourg authorities, is still pending; no timetable has been set for its determination.[12]Having made that application to the European Court in Strasbourg, Mr Sullivan's next move was to make an application to the Epsom County Court for an order staying execution of the 11th October 2002 enforcement order, pending the determination of his case before the European Court. That application to the Epsom County Court was heard by District Judge Letts on 29th June 2004. District Judge Letts granted a stay of execution on the basis that the question of whether to order a stay was a discretionary matter and that Mr Sullivan's application to the European Court raised genuine questions and had a genuine chance of success.[13]Elmbridge appealed that decision of District Judge Letts and Elmbridge's appeal came before HHJ Davies on 1st March 2005. Judge Davies found that the District Judge had not taken into account adequately the overriding objective in respect of the duty to deal with cases expeditiously and fairly, because he barely gave any attention to the length of time it would be before the matter came before the European Court. She also found that the court's resources had been used extensively by Mr Sullivan in relation to the matter. Indeed, Mr Sullivan had used them as far as they could have reasonably been used in pursuing the options that were open to him.[14]In relation to Mr Sullivan's human rights argument, she found that in order to rely on a human rights point before the European Court, Mr Sullivan should have raised the point before the domestic courts or should have raised what was in substantive if not in form an Article 6 point in the course of the relevant hearings. She concluded Mr Sullivan had had that opportunity but had not taken advantage of if to argue that there was an Article 6 point which required resolution. She considered that Mr Sullivan's motive, in attempting to stay the enforcement proceedings, was to leave the door open to set aside the original order of 11th October 2002, and she found that there was no prospect of that occurring in any event. She also found that Mr Sullivan had not used the proper appeal proceedings for Housing Benefit appeals which he should have used to challenge the decision against him.[15]On this appeal, Mr Sullivan's essential and single ground of appeal is that the matter is subject to the European Court and that that court must take precedence and therefore the enforcement of the order could not be right. He supported that ground of appeal with a skeleton argument, which has reached me this morning, in which he succinctly canvasses the history of these proceedings, as I have sought to set them out in this judgment, going back ultimately to the issue which he raises as to the lack of service upon him of the original decision letter. It seems to me, in the light of this history, that the decision of Judge Davies is not one that surprises me and that it may well be that the prospects of Mr Sullivan in Europe are poor for the reasons given by Judge Davies. Upon that basis, there is no reason, under the narrow gateways of CPR 52.132, to grant Mr Sullivan a second appeal.[16]Nevertheless, I take a broader view of this problem. For better or for worse, Mr Sullivan, as a litigant in person, if not from the earliest time available to him, at any rate from a time not long after his release from prison, after obtaining notice of the enforcement order,thereafter denied receiving notice of the decision award upon which the enforcement order was based and sought, by one means or another, to set aside the order of the court against him.[17]He has, admittedly for reasons which are not sufficiently clear to me -- and I have pressed him upon the matter today -- never sought to attack the underlying decision of Elmbridge upon which the enforcement procedures of the County Court are based. In effect, what he has said to me is that he thought he was out of time to do that.[18]I do not know whether that was the case or not. If it is the position that he had never received notice of that decision letter, it seems to me that the issue of whether he ever did receive notice of that decision letter, either by it being posted to his last known address or by personal service by Mr Cox, has never been adjudicated upon. In those circumstances, although I do have scepticism about Mr Sullivan's underlying complaint that he never received notice of the underlying award, and I also, like Judge Davies, have great scepticism concerning the merits of Mr Sullivan's complaint to the European Court, nevertheless, it seems to me that there is an important point of principle which arises in general as to the relationship between a question of stay of enforcement proceedings, and a complaint to the European Court of Human Rights. No authority appears to exist upon that issue.[19]Although it may be true that Mr Sullivan, if I may use a vernacular expression, has been knocking his head against the wall in seeking to attack the enforcement order of October 2002, nevertheless it has been apparent for some time that his real complaint concerns the underlying decision letter and whether he ever had proper notice or service of that letter. It also seems to me to be true, in those circumstances, that although he has not, in his proceedings before the domestic courts,so far raised an Article 6 point, nevertheless, his underlying complaint that it all proceeds from the decision letter of which he had no notice is a matter which goes to the root of the claim against him.[20]It does seem to me, in these circumstances, that there is either an important point of principle or, at any rate, a compelling reason why ultimately the courts should get to the bottom of Mr Sullivan's complaint rather than, as has happened so far, turn him down on the basis that, arguably in ignorance of the original decision order, or because he is a litigant in person, he has used the wrong procedure. It seems to me that if that matter is something that can ultimately be looked at, or a decision taken as to whether or not, in the light of the legislation, it can properly be looked at, then Mr Sullivan would ultimately rest content.[21]For these reasons, I would grant permission to appeal.[22]You will have your permission, Mr Sullivan, I shall say that the court should comprise three judges, one of whom may be a High Court judge, and that the case will take half a day. I will provide you with a transcript of my judgment at public expense. Thank you very much for your assistance.

Order

Permission to appeal granted.