Karkut & Ors, R (on the application of) v London Borough of Lewisham [2005] EWHC 354 (Admin)

Case No CO/793/2005[2005] EWHC 354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 17th February 2005
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF ANDREW KARKUT and OthersClaimant-v-
Between
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LEWISHAMDefendant
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)
MR R LATHAM (instructed by Messrs Hodge Jones & Allen, London NW1 9LR) appeared for CLAIMANTMR D BROATCH (instructed by the Legal Department for London Borough of Lewisham) appeared on behalf of the DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: On 8th February last the claimants applied for judicial review of decisions of the council to take possession proceedings against them. Those proceedings were before the Woolwich County Court. There had been an application made to the judge by the claimants in those proceedings to adjourn them. That application was refused, hence the application to this court.[2]What happened was that a form N463, which is the form that is used when an urgent order is sought from the court, was filled in and accompanying it was the application for judicial review itself, that is the N461, together with the material which was to be relied on in seeking that judicial review.[3]The matter came before Henriques J who granted relief in the form of the draft which has been submitted. The effect of that relief was not only to stay the possession proceedings, but also to grant permission. What was ordered was that the application for permission was to be granted, that there was to be the filing and serving of an acknowledgment of service by 4pm on 3rd March and the papers were then to be resubmitted to give directions to the management of the claim. There was not, in fact, any specific order that the County Court proceedings be stayed, but it was expected that in the light of the grant of the permission the County Court would indeed not proceed, which was not entirely surprising since the judge himself had, as I understand it, indicated that should permission be granted he would not proceed with the possession proceedings. If he had not said that expressly, he had encouraged judicial review to be sought to decide whether the proceedings ought to go ahead.[4]That was a most unfortunate way of dealing with the situation, particularly as the order made by the learned judge, Henriques J, contained at paragraph 5, a liberty to apply to discharge or vary the order on 48-hours notice.[5]If the matter is urgent, and if it is necessary to seek either a stay of existing inferior courts or tribunals, or that a particular action be taken, for example, to house a homeless family or to give support to a destitute person, it would be very rare that it is appropriate to grant permission because the grant of an Interim Order would give all the necessary protection to the individual in question. It may be appropriate, in certain circumstances, if there is a real need for urgency, for there to be an indication that the time for the filing of an acknowledgment of service should be abridged.[6]That again is something which, in my view, will very rarely be necessary provided the Interim Order can hold the position, because it will be up to the defendant to decide whether it is necessary to act quickly, or to leave it for the normal 21 days which is available for the lodging of the acknowledgment of service. Certainly, in my view, it would never be appropriate for the court to direct that an acknowledgment of service be lodged within any particular time, or at all. It must be a matter for the defendant to decide whether it is, in its view, desirable to lodge an acknowledgment and if so when to do so.[7]The problem that is created by the form of the order made by the learned judge stems from CPR 54.13. That provides that:
"Neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed."
That, on the face of it, if taken at face value, is fatal to this application by the defendant. The form of the order made by Henriques J contradicts 54.13 because it expressly states that there may be liberty to discharge or vary.[8]The answer lies in a decision of Turner J in Webb v Bristol City Council [2001] EWHC Civ 696, a case which has not been reported but which finds itself referred to in the notes in the White Book to 54.13. In that case the learned judge decided that 54.13 did not exclude the inherent power of the Court to set aside orders made by it if satisfied that it was in the interests of justice so to do.[9]Mr Latham has not sought to argue that that approach is inappropriate in a case such as this where the order was made prior to any Acknowledgment of Service and in circumstances in which it was unnecessary that it should have been made. With respect, it seems that it was made in error having regard to its terms. It is, I think, worth making the point, and I do so as the lead judge in the Administrative Court, that it would, in my view, need a wholly exceptional case, indeed, it is difficult to envisage any case, to grant permission in circumstances where an urgent order is required, in the form of some sort of holding order, to protect the position of the claimants, rather than to grant that Interim Order and leave the issue of permission, and of course the question of a possible application to set aside, to be made in due course.[10]It creates difficulties, quite apart from anything else, if a grant of permission is made in such circumstances. Therefore, the simple approach should be: do not grant permission but consider whether an Interim Order is, as it almost always will be, sufficient to give the necessary protection if the judge feels that protection is indeed required.[11]Mr Latham has very helpfully drawn to my attention some possible defects in the way in which the form N463 is set out, in particular, in section 2 of the form headed "Proposed timetable." It says "tick the boxes and complete the following statements that apply". The first is: "(a) The N461 application for permission should be considered within [blank] hours/days".[12]In this case that had been crossed rather than ticked, but the same effect can be indicated and "1 and a half" had been filled in, somewhat unhelpfully, indicating one and a half hours/days. The problem is that the form indicates that the 461 application should be considered within that time. What it should state is that the 463, ie this application, must be considered within whatever is the relevant timescale. It may be a matter of days or, perhaps more often, hours.[13]What the court wants to know is: what is the real urgency of the application that is put before the it? No doubt normally the court staff will be informed by the solicitor, or whoever it is that lodges it, what the urgency is, but it is obviously sensible that the form is to be filled out and that notice can be given on that. So consideration will clearly have to be given, and it will be given, as to whether it should be amended to make the situation clear.[14]There is, I suppose, a possible argument as to what is the correct approach of the court in deciding an application such as this. One view, permission having been granted, is the burden then is on the defendant to establish that the case is unarguable. The other approach is, in the light of the decision of Turner J, the same as that which would apply on deciding on permission, ie, is there an arguable case?[15]I do not, myself, think that it makes any difference. The reality is that I shall decide whether, in my view, this is an arguable case. If it is it will be allowed to continue. If I decide it is not I shall not waste the court's time in allowing it to proceed. This application will, in those circumstances, be allowed. I do not understand either counsel to suggest that that is not an appropriate way to approach the matters which I have to take into account.[16]So much for procedure. Let me now turn to the substance of this claim. The claimants are both squatters (they and their families) in the premises in question. The premises form part of the Pepys Estate, which is a substantial council estate bordering the river within the London Borough of Lewisham. It was constructed in the late 50s, early 60S. It has now outlived its usefulness and the decision has been made that it should be, in some cases, demolished, in others refurbished and effectively rebuilt. It is also part of the plan that it is, or parts of it, are to be sold, to a housing association. The object is that fresh and better accommodation should be built and should be provided for those who need it within the borough.[17]This plan has been approved as necessary. In fact it is a statutory plan. Following consultation and the survey of residents’ opinions it has been approved by the Secretary of State. Of course before the necessary work can be commenced the relevant buildings have to be cleared. Some, as I understand it, have already been cleared. Some work has been able to be started. Others still have a number of residents who have not yet been removed.[18]There are two categories of such: some are those who have or have had secure tenancies. The council has obtained, in relation to most of them, possession under section 10A of the Housing Act, successfully claiming that there is an appropriate statutory scheme which forms the foundation for such a claim. In some cases residents have purchased leases under the right-to-buy provisions. They cannot be removed unless they go willingly, and of course many of them have because they have been offered alternatives by the council. Those, however, who will not sell voluntarily have to be removed by the use of compulsory purchase powers.[19]Those powers have been exercised but an inquiry has to be held. As I understand it, that inquiry was held last month and the Inspector has not yet reported. Many of the flats, as a result of these proposals, have been vacated. Word has obviously got around that there are these vacant flats and squatters have moved in. The claimants are both such squatters. There could be no suggestion that they have any lawful right to be in the premises. In August 2004 the council wrote a letter to all those who they knew were in flats. It was addressed to "To all Persons Unknown" in the various addresses. It read:
"Dear Tresspassers I am writing with reference to your occupation [whatever the relevant address was] You do not have authority to occupy this property. Can you please contact me at the above address or telephone number to confirm your Identity and to tell me when you will be vacating this property. Failure to vacate this property forthwith will result in the London Borough of Lewisham commencing possession proceedings."
[20]Mr Broatch informs me that one squatter has contacted the authority as a result of that letter. It is not suggested that either of these claimants have.[21]Possession proceedings were not brought immediately, in fact not until the end of last year, returnable in January of this year. It is those proceedings which are the subject of these judicial review proceedings.[22]Mr Latham, on behalf of the claimants, submits that the decision to take proceedings, whether against squatters in the properties in general or in relation to individuals, is a decision which is amenable to the jurisdiction of this court, being a decision taken in public law, and that the council must have regard to all relevant considerations, must act rationally and must act proportionately. He further submits that the premises in question are the claimant's homes and thus Article 8 is engaged because it matters not whether they are lawfully in possession or not. He points to Strasbourg jurisprudence which he submits establishes that lawful occupation is not an essential pre-requisite to the enjoyment of the Article 8 right to a home.[23]There is, indeed, such jurisprudence. It does involve cases where the original possession was lawful but has become unlawful. There certainly is no case which supports, in terms, the proposition that someone who comes on to the property as a trespasser can thereby create rights under Article 8. However, I am prepared to accept that it is at least arguable because I emphasise I am dealing, at this stage, only with arguability. I am not deciding whether the point is, or is not, one which is made out, that even if possession was obtained unlawfully it is possible that nonetheless Article 8 rights could be created. It may depend upon how long the possession has continued, the circumstances in which it has continued and what, if anything, has been done by the landlord (in this case the council) in relation to it.[24]I am bound to say that I have grave doubts as to whether such a right in circumstances where one is dealing with squatters does exist, but, as I have said, I do not rule out, at this stage, the possibility. However, that does not get Mr Latham home in relation to this case.[25]Mr Broach submits that in a situation such as this where squatters occupy, it is impossible to concede that there could be any ground for saying that it was disproportionate to seek possession because the landlord has an indefeasible domestic right to possession. They are after all trespassers. They have never been other than trespassers and they have no legal right to be on the premises.[26]As against that, Mr Latham relies upon the requirement of the council to have a homelessness policy and to recognise that these are persons who would otherwise be homeless and who are occupying premises which are not, for the time being, being put to use as homes and are not needed, for the time being, for other purposes. Of course he accepts that the time will inevitably come when they are needed, but he submits that until they are actually needed, for the purposes of the scheme of development, then consideration should be given to, as he puts it, the rights of the families who are in fact occupied.[27]Mr Broach has pointed out that it is by no means to be necessarily accepted that they are not immediately needed, or rather within a reasonable time. There is really very little evidence as to precisely how long the time is before there is a real need to have vacant possession, so far as is possible, of these premises.[28]Be that as it may, it seems to me that regarding the existence of the scheme, which has gone through all the proper channels and has been approved in a democratic proper fashion, it is very difficult to see any conceivable justification to permit those who choose to come and squat in the premises to be allowed to continue to be there. When I pressed Mr Latham as to what enquiries should be made by the council to satisfy itself as to the proportionality, or reasonableness, of action in any individual case, he had some difficulty in identifying, particularly in the light of the obvious fact that the council will not necessarily know, and indeed will frequently be unable to ascertain, who the individual occupants are and what their circumstances may be. They cannot be expected to have regard to individual circumstances if there are no reasonable means other than spending considerable sums of money through perhaps inquiry agents, or whatever, in trying to ascertain.[29]It seems to me that the letter that was written on 11th August 2004 was quite sufficient, in any event, because it put the occupiers on clear notice that they were not allowed to be there and that they would be evicted. It encouraged them to contact the council. True that in the context of ‘When will you vacate?' but if they come to the council and said, ’Please let us stay until Christmas’, or whatever may be the relevant time, the council would, I am sure, have considered the request. That was the way ahead, as it seems to me, or that should have been the way ahead for those who were unlawfully occupying. That was a perfectly reasonable step for the council to have taken. To suggest that there is an obligation to do more than that is, in my view, a suggestion which is wholly unacceptable.[30]In all the circumstances, even assuming that the council had any obligation along the lines of that submitted by Mr Latham, it seems to me that, on the facts of this case, he does not begin to get anywhere near establishing that there has been a failure by the council to have regard to all relevant considerations. I make it clear that I am not persuaded that there is such an obligation in a case such as this where one is dealing with squatters, but again I am prepared to accept that it may be, and it is possibly the case and just about arguable, that there is a duty at least to give notice in the sort of form that the council gave it. However, I have no doubt that it is wholly unreasonable to expect the council, or any council, to go beyond that.[31]No doubt the families in question, and the claimants, are not the only squatters who are affected by these proceedings. As I understand it there are a number of others where cases have been adjourned pending the outcome of these particular proceedings. I do not doubt that these squatters are all people who are desperate in the sense that they have otherwise nowhere to live. They are otherwise wholly responsible, respectable people who have done, I do not doubt, a lot in their own lives and in the way they are employed themselves, which is of benefit to the community as a whole. Of course being squatters they pay no rent. They pay no council tax. That, however, is not necessarily the be all and end all. That does not affect the situation. They are still trespassers and they had no right to come into the premises. The council, in my judgment, has every right to evict them.[32]It seems to me to be quite unarguable that the actions by the council were disproportionate within the terms of Article 8, or were actions which domestic law prevents them, in any way, from taking. In those circumstances I am afraid that I have no doubt, whatever, that this claim is unarguable. Permission should not have been granted and accordingly I must allow the application made by the defendant counsel.[33]MR BROATCH: Would your Lordship therefore set aside--

MR JUSTICE COLLINS: I set aside the leave.

[35]MR BROATCH: The order of Henriques' J, permission to move refused and the authority's costs, which I think would be taxed on the standard basis, of the determination of the amount paid of the assisted person be suspended.[36]MR JUSTICE COLLINS: I do do not think you can resist the usual order, can you, Mr Latham? I can never remember nowadays what are the precise terms of it. It used to be called the lottery order.[37]MR LATHAM: In terms I ask for my CS assessment.

MR JUSTICE COLLINS: Indeed.

[39]MR LATHAM: Can I raise one other matter in relation to the procedural--

MR JUSTICE COLLINS: Yes, of course, it is very helpful.

[41]MR LATHAM: The citation of authorities Practice Direction crossed my mind. Since this is a permission application your ruling on the procedures would not be a matter which could be cited unless--[42]MR JUSTICE COLLINS: I think it would be quite usual actually to direct that this can be published. I do no more than perhaps, in rather emphatic terms, support the decision made by Turner J. I think it probably is desirable that it is known and, to some extent, I suppose I can give it a bit more imprimatur, as lead judge, as to what the procedure ought to be. The duty judge is given a package which tells him that he must not grant permission, because the duty judge is not necessarily a nominated judge. This is a sort of similar situation.[43]MR LATHAM: The only other comment I would make is that there is some criticism of the ambiguity on the form N463. As my Lord gave his judgment I did spot that my solicitor had put "by the end of 10th February 2005."[44]MR JUSTICE COLLINS: Had he? I did him an injustice, did I? That will be on the transcript. It was slightly unfortunate that he had not crossed out "days" or "hours".[45]MR LATHAM: I do not make a big point of it. The passage at the end of the judgment is sufficient.[46]MR BROATCH: May I make a comment on the procedural matters? It is simply regarding the urgent consideration of audits very often before the authority's case. Even if the judges proceed in the orthodox way, not in the way that Henriques J, with respect, proceeded, and they give some interim relief, particularly in a homeless case, the result is that the authority without its case, not even its case on paper, save and except where there has been a proper protocol letter and proper response to it, put before the learned judge -- some of the orders may, of course, now that bed and breakfast accommodation is not to be used, save to say in exceptional terms, have the result that the applicant and her family have ended the property, of which they have exclusive possession, either under license or some other arrangement, if permission is not granted, as in many cases it is not. If then the substantive hearing and the grant of relief is refused, the authority then of course may have to take possession proceedings in respect of the (inaudible) granted solely in compliance with an Interim Order of the case being heard. It is difficult to put forward a precise procedural device by which this can be prevented.[47]MR JUSTICE COLLINS: You mean they should be deemed to be trespassers, notwithstanding the court has made an order of some such?[48]MR BROATCH: It may be that most authorities will have fax machines and it may be that a procedure can be devised whereby before an order is made the authority is expressed to give an opportunity to make representations even if it is not the full grounds of resistance before an order of that type is ussued.[49]MR JUSTICE COLLINS: The problem, Mr Broach, as you appreciate, is that often these orders are made overnight. Quite often the court is not asked to make an order until 5 or 6 at night, sometimes later. Sometimes on a Friday when it is a question of holding things over a weekend. That sort of situation. That is the real problem. Always the council should be notified and can usually make representations the next day. For most such orders, as you know, if they are really urgent overnight, the requirement is 'Come to court tomorrow or the first available day'. Normally I would have thought a need to accommodate for a day or two is not going to create -- it is always open to the council to, first of all, it would have to be served or it would have to be notified because that is the normal order made on any over night or a very short order. If it is a longer one there is always the liberty to apply on 24-hours notice.[50]MR JUSTICE COLLINS: My experience is that councils rarely do apply, even though the power is there. I do not know why but there seems to be a reluctance to make an application perhaps because of costs considerations, I do not know. I do not really see what the court can do more than that. It is something that you obviously think about. These orders are very short orders there is always the power to apply to set aside. I am not sure that there is much more we can do. If you want to suggest something and it is a reasonable suggestion then raise it.[51]MR BROATCH: It was going through my mind only that limited practical suggestion to make--[52]MR JUSTICE COLLINS: There are things that I think do need to be considered. We have spotted one or two today, but I am sure they are not the only ones because there was an element, as Mr Latham indicates, of a bit of a piecemeal. I personally, and I still do, form the view, very firmly, that it is quite wrong to require an acknowledgment of service. It should, in my view, be discretionary. There should not be any sanctions imposed if you do not. There may be cases in which it is perfectly obvious that permission is going to be refused. It is a self-evidently hopeless claim. There are quite a lot of such that come to the court. Why should a defendant incur costs in putting forward something when all that may be needed is a letter saying, 'In our submission this is a completely hopeless claim. We do not intend to appeal', or something like that? Equally there are other cases when it is obvious that leave is going to be granted. Again, it is much better to wait and expend the costs on the detailed permissions. There is also the problem of the protocol too. There are sanctions against not answering the protocol properly.[53]MR BROATCH: I was going to say, as a matter of record, that the N463 does provide for the defendant to be able to fax a response to the court. In my experience when that is done it is put before the single judge--

MR JUSTICE COLLINS: Certainly.

[55]MR BROATCH: Before I sit down, I would say that as a user the staff in the administrative court do have a reputation of being one of the most friendly and constructive of the court staff in the court office.[56]MR JUSTICE COLLINS: I am very glad to hear that. I am sure that is right. They do their best and they are, I know, helpful. The trouble is that, of course, there are those, like yourself and those instructing yourself, who know the ropes, but there are equally those who do not necessarily. Therefore, it is important that the forms should be as clear as they can be. It is not the form's fault, the rules and, so on, do not necessarily help. One of the problems of the CPR is I think this is fatter now than the other White Book and is, if anything, more complicated than the old ones used to be.[57]MR LATHAM: There is the problem on Friday when the duty judge is unable to deal with all the applications which have been issued and guidance on what should happen to those would assist.[58]MR JUSTICE COLLINS: The court has a judge on duty until 4.30pm which is the deadline for getting anything into the Administrative Court. There will be someone available every working day in the Administrative Court who can deal with anything that comes in before 4.30pm.[59]MR LATHAM: There have been bad days when proceedings issued before 11 o'clock have not been dealt with.[60]MR JUSTICE COLLINS: I have heard that. I must try to ensure that is dealt with. Normally we have at least one judge who is only doing paper applications, so there is usually someone available. It can happen that there are simply not enough judges available on a particular day.[61]MR LATHAM: It is a standard procedure for the emergency judge to have a lower threshold.[62]MR JUSTICE COLLINS: I do not know about a low threshold. To be quite honest, Mr Latham, my experience is that the duty judge is pretty lenient, if I may use that word, in granting relief in cases such as this.[63]MR LATHAM: I think what I was meaning was that some of those cases which have been properly issued on the Friday and are not dealt with, for perfectly understandable reasons, stand on an equal footing with all the other emergency applications and it can be a matter of 11 o'clock on a Friday evening.

MR JUSTICE COLLINS: Perhaps you could, if you like, get someone to send a formal little note.

[65]MR LATHAM: Let me do soundings. If I can note the date when the court is due its next meeting.[66]MR JUSTICE COLLINS: I am not sure. You will have to ask Lyn. It is somewhere towards the end of term in March. I think it is the last week in term. I cannot tell you the precise date. I know it will not be the week of 7th March, because I am not here that week. I think it is the following week. You will have to check. Thank you both.