Dewa, R (on the application of) v Westminster City Council [2005] EWCA Civ 600

Case No C1/2005/0114[2005] EWCA Civ 600
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE KEITH)
Venue Royal Courts of JusticeDate Wednesday, 4th May 2005
Strand
London, WC2
B E F O R E:
LADY JUSTICE ARDEN
Between
THE QUEEN ON THE APPLICATION OF MGOLI DEWAAppellant-v-
Between
WESTMINSTER CITY COUNCILRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON for in person for THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED
J U D G M E N TWednesday, 5th May 2005

LADY JUSTICE ARDEN:

[1]This is an application by Mr Dewa for permission to appeal from the order of Keith J, dated 11th November 2004, refusing an application by Mr Dewa to amend a judgment which the judge had given in March 2002.[2]In his earlier order the judge quashed a decision of Westminster City Council that it had no statutory power to compel Mr Dewa's landlord to carry out works to the property where Mr Dewa had a bedsit. The works were to unite two rooms so as to give Mr Dewa access to cooking facilities. Mr Dewa presently has a tenancy of one of those rooms, room 15A, but it has no cooking facilities because the room is less than 8.2 sq m which is the statutory minimum to have cooking facilities.[3]The judge's conclusions in his judgment were, first, that he should quash the council's decision that it did not have power to serve a notice on the landlord under section 352 of the Housing Act 1985 specifying the works to be carried out to effect the physical amalgamation of rooms 13 and 15A. Secondly, the judge declared that the council had the power to serve such a notice. Third, he ordered the council to consider, within 3 months of the handing down of the judgment, whether such a notice should be served. In paragraph 20 of his judgment the judge, rejecting the council's argument that it would inevitably conclude that it should not serve a notice under section 352 of the 1985 Act, said this:
"I reject this argument. It is, in my opinion, by no means inevitable that the Council would regard these factors as justifying a decision not to exercise its powers to serve on the landlord a notice under section 352 of the kind sought by Mr Dewa. It may well conclude that the need for Mr Dewa to have cooking facilities outweighs these considerations, and by a significant margin. In any event, the Council could well regard as decisive the fact that in order to avoid having to carry out such works, the landlord could take two simple steps. He could give Mr Dewa access to room 13 to enable him to use the cooking facilities there. Alternatively, he could permit Mr Dewa to transfer his tenancy of room 15A to a tenancy of room 13. It is true that Mr Dewa would then get the benefit of a larger room with cooking facilities, but he has not said that he would not be prepared to pay more for that room. That was why he completed the appropriate form for an assessment of the amount of housing benefit to which he would be entitled if his tenancy could be transferred to room 13. He would then be able to make an informed decision whether he wanted to pay the difference between the benefit to which he would be entitled and the actual rent for room 13. That assessment could not be done because the landlord refused to countersign the appropriate form."
[4]However, as I have said, the judge decided only that the council had power to serve the statutory notice and that it should consider whether to serve a notice. He did not go on to decide that such a notice had to be given. That was a matter for the council.[5]As it happened, before the council came to a final conclusion on this matter, the landlord decided to make an offer to Mr Dewa to exchange his tenancy of room 15A for room 13, the adjoining room with cooking facilities. That was a larger room and it was the room which the judge had contemplated might be altered so as to permit Mr Dewa access to those cooking facilities. But the landlord instead decided to make an offer of that room alone. That would avoid the need for any alteration to the property.[6]The application that was made to the judge by Mr Dewa was made under CPR 40.12: "40.12 -(1) The court may at any time correct an accidental slip or omission in a judgment or order. (2) A party may apply for a correction without notice.[7]The application which Mr Dewa made was that the judge should vary the fourth sentence and following of paragraph 20 of his judgment so that it read:
"In any event, the Council could well regard as decisive the fact that in order to avoid having to carry out the works the landlord could take one simple step. He could give Mr Dewa access to room 13 to enable him to use the cooking facilities there."
I do not think I need read further into the form of application which Mr Dewa made.[8]I leave on one side the question whether under CPR 40.12 the judge could, in any event, have made an alteration to the reasons which he gave for the order which he made. It seems to me that such reasons are not a "judgment" for the purposes of CPR 40.12, but I express no final view on that point.[9]When the matter came before the judge the judge refused the application. He said this:
"There is no error in the judgment. The evidence was that room 13 was (a) larger than room 15A and (b) at least 10.2 sq m, which is the minimum for it to have internal cooking facilities. That has been confirmed by para 1 of the application letter and para 4 of Mr Dewa's latest witness statement. He must therefore choose whether to move to room 13 in which his landlord is prepared to install cooking facilities (see his landlord's solicitors' letter of 12 June 2002) or to stay in room 15A without cooking facilities. What he cannot do is complain about the Council's unwillingness to serve a notice under section 352(1) of the Housing Act 1985 if he refuses to move to room 13. The fact that 13 years ago he moved from room 15, an even larger room, is irrelevant."
[10]Mr Dewa has made a number of submissions to me this morning. He submits that the judge went too far in paragraph 20 because the question which he had to decide was whether the council had power to serve a notice, and the question whether the landlord could avoid the problem by offering an exchange of rooms to Mr Dewa was outside the issues which the judge had to decide.[11]Second, Mr Dewa submits that the court intended that the accommodation should be linked, and, by the passage which Mr Dewa sought to amend, the landlord had the option of making an offer of one room only.[12]Thirdly, he submits that the judge failed to exercise his discretion in accordance with the principles set out in a passage cited by Lord Woolf in Phonographic Performance Ltd vAEI Rediffusion Music Ltd [1999] 2 All ER 299. The passage in question is a passage from the judgment of Stuart-Smith LJ in Roache v News Group Newspapers. In the course of the passage Stuart-Smith LJ said that the court could interfere where the decision of the trial judge is "wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale."[13]Mr Dewa also referred me to G v G, a decision of the House of Lords. In that case the House of Lords confirmed that the Court of Appeal should not interfere with the exercise by a judge of his discretion unless it was satisfied that the judge had exercised his discretion on wrong principle or that the judge's decision was so plainly wrong that he must have exercised his discretion wrongly. Mr Dewa points out, however, that the court should interfere if there has been a blatant error.[14]Fourthly, Mr Dewa submits that he had indeed occupied a larger bedsit in the past and therefore should not be required to move into room 13. I should explain that, of course, there is no obligation for him to move into room 13, but it is the room that has been offered to him.[15]Lastly, Mr Dewa submits there is a point of general importance here because the landlord should not be able to keep accommodation empty, and the law should lean against the letting of single room bed-sitting rooms.[16]I come to my conclusions. In my judgment there is no real prospect of success. As to the question whether the judge went too far, certainly the judge's observations in paragraph 20 arose out of the issues which the judge had to decide and in my judgment there is no reason why the judge should have not dealt with the matter in the way that he did.[17]Secondly, on 11th November, the judge was merely ruling on a slip rule. There was no question of that application before him, or the application to this court, being an application to consider the judge's judgment on its merits. Indeed, Mr Dewa does not seek to challenge the judge's main conclusions. The judge therefore was only considering whether he should correct an accidental slip in his reasons and accordingly there had to be an accidental slip for his discretion to arise. As it was he decided there was no accidental slip and it seems to me that there could be no appeal against that decision.[18]As I have said, the discretion would arise only if the circumstances in the Rule existed, namely that there was an accidental slip, and this court would only intervene if it was clear that the judge was wrong in principle or had failed to balance the factors fairly. As I said, that discretion did not arise. The judge dealt with the point that Mr Dewa had previously occupied a larger room. He held that that was irrelevant, and in my judgment there could be no real prospect of success against that decision.[19]Mr Dewa has pointed out that room 13 has been left empty, but that is because it is on offer to Mr Dewa and Mr Dewa has not yet accepted it. He has refused that offer. Likewise, Mr Dewa has submitted that the court should lean against single room bedsits because Parliament has now phased out protected tenancies. By virtue of section 34(1) of the Housing Act 1988 there cannot be new protected tenancies. But that is a matter relating to new tenancies, so far as existing tenancies are concerned there is nothing to stop the landlord offering room 13 in lieu of room 15A. Had Parliament intended to go further in section 34 it would have done so, and that was a matter entirely for Parliament.[20]The duty of the court in a case like the case before Keith J was to adjudicate on the parties' rights and obligations according to the law as it stood. In my judgment there is no prospect of success against the judge's judgment. Accordingly I refuse this application.

ORDER

application refused