Southern Housing Group Ltd v Kontou [2015] EWCA Civ 617

Case No B5/2014/0684[2015] EWCA Civ 617
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT CLERKENWELL AND SHOREDITCH
(HIS HONOUR JUDGE MITCHELL)
Venue Royal Courts of JusticeDate Thursday, 21 May 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LEWISON
Between
SOUTHERN HOUSING GROUP LTDRespondentv
Between
KONTOUAppellant
DAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Appellant appeared in person for in person for The Respondent was not present and was not represented
J U D G M E N T
[2]Ms Kontou applies now for permission to appeal against that order.[3]The order of 30 January 2014 which was amended, which is at page 112 in the bundle, related to case 1EC00235. That was a claim for possession brought by Southern Housing Group against the personal representatives of Ms Kontou's late mother and Ms Kontou herself. One of the grounds on which possession was claimed was that suitable alternative accommodation was available.[4]That action, on the face of it at least, terminated as a result of a order made by District Judge Cooper on 19 April 2012. It was in a form which, on its face, appeared to have been agreed both by the Southern Housing Group and also by a firm of solicitors called Miles & Partners LLP, acting as solicitors for Ms Kontou.[5]That order recited that the Defendant agreed that ground 9 of schedule 2 to the Housing Act had been established, namely that accommodation at 77 York Way, Copenhagen Street, London, N1 was suitable alternative accommodation within the meaning of ground 9 and recited the court was satisfied that ground 9 was established and also that it was reasonable to make an order. The order contained an undertaking by Southern Housing to grant an assured periodic tenancy of 77 York Way to Ms Kontou on her giving possession of the original property at 1 Edwards Muse.[6]The attack which Ms Kontou wishes to make is really against that order and I will come back to that in a moment. But in consequence of the order, Southern Housing did indeed grant Ms Kontou a tenancy of 77 York Way Court, but Southern Housing subsequently alleged that she had fallen into arrears of rent payable under that tenancy and began a new claim against her. It is that claim which is 3PA53116.[7]On 12 June 2013, District Judge Manners made an order for possession against her and gave judgment for the alleged arrears of rent. Ms Kontou had not attended that hearing and applied to set aside the order. In her witness statement in support of the application to set aside, Ms Kontou said in paragraph 9:
"I would also explain that there is disrepair in the property as follows. There has been an ongoing issue with the boiler in the property since the tenancy commenced. Upon moving into the property, there was a danger sign on the boiler preventing me from using it. In addition, other repairs that were needed, including the electrics. Repairs were carried out on the boiler during the first week of the tenancy. However, it has not been in full working order since this time. Each time I use the shower in the property the water is either excessively hot or extremely cold. The boiler makes a loud noise when in use, overheats and cuts out. There is also no thermostat fitted to control the heating. There is damp and mould throughout the property. The walls surrounding the windows in each room and the sills are extremely damaged from the damp with holes throughout. This is caused by aluminium windows creating excessive condensation in the winter. In addition, lack of ventilation needing ridge vents on the roof, making the property very hot in the summer."
[8]She added in paragraph 11 that she wished to remain "in my property and pursue my defence and counterclaim against the Claimant".[9]In the light of the allegations made in paragraph 9 of the witness statement which I have read, it is not entirely surprising that District Judge Cooper thought that there might be a counterclaim for disrepair. On 16 July 2013, District Judge Cooper set aside the possession order which had been made on 12 June at the hearing which Ms Kontou did not attend.[10]The order then continued in paragraph 2:
"The Defendant do by 4.00 pm on 1 August 2013 file at court and send to the Claimant or the Claimant's solicitors if acting a defence and counterclaim setting out the facts she relies upon in numbered paragraphs limited to this tenancy and this property."
[11]The order went on to give directions for reply and defence to counterclaim and disclosure of documents. Then in paragraphs 6 to 11 of the order, the District Judge dealt with the instruction of a single joint expert as a building surveyor to inspect the property and prepare a report for the court on the allegations of disrepair in the defence and counterclaim by a particular date.[12]In her letter to the court of 28 July, Ms Kontou said:
"I cannot file a defence counterclaim and sign a statement of truth about disrepair if my counterclaim is not about disrepair. My counterclaim defence statements for the hearing 12 June 2013 and 16 July 2013 is regarding case EC00235, a court order that was obtained by deception by the Claimant in which I had incurred costs and left with a debt."
[13]That is the attack on what appears to be the consent order to which I have already referred.[14]Ms Kontou asked for the order to be reconsidered and filed another version of her counterclaim on 18 September 2013. That counterclaim asserted in terms that claim EC00235 had been settled, but said that she did not know about the settlement.[15]On 30 October 2013, Judge Mitchell granted Ms Kontou permission to appeal against the order of 16 July and continued "and the appeal is allowed to extent that paragraphs 6 to 11 are revoked." Importantly, Judge Mitchell did not revoke paragraph 2 of the order of 16 July 2013 which limited the defence and counterclaim to this tenancy and this property.[16]Although Ms Kontou says that she has appealed against that order, there is nothing in the papers to suggest that an appeal was made to this court, which would be the only avenue of appeal against the order of Judge Mitchell of 3 October 2013.[17]The next thing that happened is that Southern Housing applied to strike out the counterclaim on the basis that it did not comply with paragraph 2 of the order of 16 July 2013. District Judge Parker duly struck it out on 12 November 2013.[18]Once again, Ms Kontou appealed. On 11 December 2013, Judge Mitchell granted permission to appeal, but for a reason which is unexplained the court drew up two identical orders, one in claim 3PA53116 and the other in claim EC00235. But Ms Kontou rightly says there was no appeal in claim EC00235 which on the face of it had been settled by the consent order. Southern Housing spotted the error and in an application notice of 20 December 2013 asked for the order to be set aside on ground that Ms Kontou had not asked for permission to appeal in claim EC00235.[19]It was that which led to paragraph 1 of

Judge Mitchell's order of 30 January 2014, which read as follows:

"Application dated 20 December 2013 dismissed. The court recording the appeal listed for hearing on 6 February 2014 concerns only the order made in 3PA53116 on 12 November 2013 and that permission to appeal the order made, 1EC00235 on 19 April 2012."
[20]Clearly, that last part of paragraph 1, namely that “permission to appeal the order made 1EC00235 on 19 April 2012”, does not make grammatical sense. It was that which the judge corrected in paragraph 7 of his order dated 6 February 2014 by adding the words "has not been granted." That was clearly the right thing to do. Not only had no permission to appeal been granted in EC00235, but no permission had been asked for. Under CPR part 40.12, commonly called the slip rule, the court has ample power to correct orders which have been incorrectly made and I have no doubt that that is what the judge did in that part of his order.[21]The only other substantive decision that the judge made was to dismiss the appeal against the order striking out the counterclaim. Given that the counterclaim did not comply with paragraph 2 of the order of 16 July 2013, which as I have said was not revoked by Judge Mitchell on the first appeal, it was inevitable, in my judgment, that the appeal would be dismissed. There is no further appeal against the original decision to limit the scope of the counterclaim which would in any event have been hopelessly out of time as well as being a second appeal against a case management decision.[22]Ms Kontou says that orders have been fabricated, appeals have been fabricated and the court is protecting fraudsters. She says that the solicitors who apparently acted for her in the original claim, EC00235, had been abusing legal aid, that the Ombudsman and the Solicitors Regulation Authority have failed to take any action and that in consequence, she has suffered because a judgment is against her which has affected her credit rating.[23]But none of those points, if they are true, deal with the order against which she seeks permission to appeal. It is clear to me that an appeal against that order would have no real prospect of success, quite apart from failing the second appeals test, which is that an appeal must raise some important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear the appeal.[24]It is obvious that Ms Kontou considers that the legal system has failed her abysmally, but most of the blame that she attributes is heaped on her former legal advisers who signed the consent order, she says without her knowledge or authority and fraudulently. But in that situation, the usual remedy is to bring a claim in negligence against those legal advisers.[25]She also says that the original judgment in claim 00235 was procured by fraud. If it is alleged that a judgment has been procured by fraud, then it is possible to bring a fresh action to set aside that judgment, in which event all the matters that Ms Kontou wishes to raise in her counterclaim could be ventilated before the court.[26]I am not encouraging Ms Kontou to do either of those things, although I dare say that no discouragement from me will dissuade her. From what I have seen, there are formidable obstacles in her way. But what is clear to me is that the way to ventilate her grievances is not by a second appeal against Judge Mitchell's order of 6 February 2014.[27]Accordingly, for those reasons I refuse permission to appeal.