Malekout v London Rent Assessment Panel & Anor [2006] EWHC 884 (Admin)

Case No CO/1024/2005[2006] EWHC 884 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 21 st March 2006
Strand
London WC2
B E F O R E:
MR JUSTICE OUSELEY
Between
DR CYRUS MALEKOUTAppellant-v-
Between
THE LONDON RENT ASSESSMENT PANELRespondentCARPHONE WAREHOUSE LTDRespondent
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 S. TAYLOR (instructed by French and Co.) appeared for APPELLANTMR T. MORSHEAD (instructed by the Treasury Solicitor) appeared for FIRST RESPONDENTMR P. CLARKE (instructed by Clyde and Co.) appeared for SECOND RESPONDENT
J U D G M E N T
[1]MR JUSTICE OUSELEY: The appellant is the Rent Act protected tenant of a flat in Streatham, London. The Carphone Warehouse UK Ltd, the second respondent, is his landlord. On 6 December 2004 the London Rent Assessment Committee determined the fair rent for the flat at £680 per month in a decision letter with extended reasons.[2]The appellant appeals to this court on a point of law under section 11 of the Tribunals and Inquiries Act 1992. The grounds primarily relate to alleged procedural unfairness in the refusal of a postponement and adjournment. There were also substantive challenges to the lawfulness of the Committee's consideration of the evidence.[3]Mr Taylor for the appellant helpfully at the outset of the appeal recognised that the substantive points could not be made out and the Committee's assessment of the evidence was reasonable on the facts before it, if its refusal of a postponement or an adjournment had been lawful.[4]He also submitted that the lawfulness or fairness of those refusals from the claimant's point of view depended critically on a disputed issue of fact as to whether the appellant had been offered a domiciliary hearing, that is to say, a hearing either at the subject flat or at the flat where the appellant was actually living, and as to whether he had refused such an offer or whether no such offer had been made.[5]From the Committee's point of view, even if no such offer had been made, the refusal of a postponement or adjournment was none the less fair and lawful. The distinction between postponement and adjournment I take to be that postponement arises before the hearing starts and an adjournment relates to the position once a hearing has begun.[6]I heard oral evidence from the appellant and from the Deputy Regional Manager of the London Rent Assessment Panel, a Ms Partridge, who on her evidence had offered the domiciliary hearing.[7]It is necessary to set the disputed factual issue and the submissions in context. On 16 June 2004 the London Rent Assessment Panel of the Residential Property Tribunal Service notified the appellant that there would be a hearing on 23 July 2004 and that the Committee would inspect the property on the same day as it made the determination.[8]On 14 July 2004 the oral hearing for the assessment was confirmed for 23 July 2004 in Central London, with the inspection to take place on the same day. On 15 July, as the appellant said that he had not received the letter of 16 June 2004, at least at that stage, the appellant sought an adjournment. He said that the notification did not allow him sufficient time to seek advice or representation before 23 July 2004. He was disabled and suffered long-term ill health. It would be unlikely that he could attend the hearing or make arrangements for an inspection on 23 July 2004.[9]He did not, however, in that letter suggest that the hearing and the site inspection being on the same day would lead to any difficulties for him. The appellant said in cross-examination that he had had that factor in mind when he referred to his health problems. I do not accept that he had that in mind although I do accept that his focus was on the hearing.[10]A postponement was granted by the LRAP in a letter of 20 July 2004. On 29 July 2004 a new date was fixed for 10 September 2004 at 9:30 a.m. with the time for the site inspection to be notified. There was no suggestion that the inspection would not continue to be on the same day as the hearing, but the appellant said in evidence to me that he was confused by the reference in that letter to "a supplementary hearing" on 10 September 2004. He had formed no view as to whether the hearing and site inspection would take place on the same day.[11]On 3 August 2004, and without reference to any confusion generated by the reference to "a supplementary hearing", the appellant wrote seeking a postponement, this time because there was a possession hearing in the County Court set for 16 September 2004. He said that he could not prepare for hearings on 10 and 16 September because they were so close together and because he was "not in good health".[12]Again, by a letter of 9 August 2004, the postponement was granted. On 15 October 2004 the LRAP wrote fixing a "supplementary hearing" for 22 November 2004. There is no reference in that letter to the time or date of the site inspection. This time the appellant did respond by reference to the meaning to be attached to "a supplementary hearing". He asked for a postponement for a third time until after the final outcome of possession proceedings in respect of this property, which were due to be heard at the first open date after 6 December 2004.[13]I add parenthetically that the possessions proceedings appear to have been heard eventually on 25 August 2005. The appellant succeeded, though not without attracting significant adverse comment on the reliability and truthfulness of his evidence.[14]However, this third application for a postponement was rejected in a letter of 21 October 2004. This confirmed the time and place for the hearing on 22 November 2004. It says in respect of the site inspection that the time would be confirmed (not the date) two weeks before the hearing date.[15]On 28 October 2004 the appellant for the fourth time sought a postponement. This time it was because his solicitors wanted the Rent Assessment Committee papers for the purposes of the possession proceedings and said that they would not be back in the appellant's possession until after the 22 November 2004 hearing. That application was rejected on 29 October 2004.[16]On 4 November 2004 the appellant made a fifth application for a postponement. This time it was because:
"I must be present in the High Court for an unrelated matter on Friday 19 November 2004 which I am told will continue on to Monday 22 November."
[17]The appellant said in his second witness statement at paragraph 18 that the High Court hearing was due to take place on 15 November 2004, although it did not in fact do so. He told me in the course of his evidence that the hearing was due to take place on Friday 19 November with a possible overrun to 22 November 2004.[18]The appellant also asked the Panel to provide full reasons for the refusals of his applications for postponement. This was provided in a letter of 12 November 2004. But before that letter was received the appellant was notified on 8 November 2004 of the hearing date of 22 November and was told that the inspection would take place that day at a given time.[19]The letter of 12 November explained the reasons for the refusal of the postponements. They are of significance in relation to the subsequent decision of the Committee. The letter points out that the Residential Property Tribunal Service had an obligation to process cases expeditiously. It normally aimed to determine objections to determinations within 10 weeks of receipt, which would have meant that both parties could reasonably have expected a resolution to the issue by July 2004. There had been five requests for postponements, two of which had been acceded to over the objections of the landlord.[20]The RPTS referred to the discretionary powers in relation to postponement in Regulation 8 of the Rent Assessment Committees (England and Wales) Regulations 1971. An adjournment or postponement should not be granted at the request of one party unless:
"having regard to the grounds on which and the time at which such request is made and to the convenience of the parties, they deem it reasonable to do so."
[21]The Panel Secretary concluded his letter by saying that the Committee had taken into account the fact that the request was from one party only, the grounds put forward by the appellant, the length of time elapsed, and the number of previous postponements.[22]The appellant took issue with that letter, asserting in his letter of 13 November 2004 that another postponement was entirely reasonable. He referred to his previous applications and said that he could not be in two places at the same time and so could not attend the hearing on 22 November as he had to be in the High Court on that day, and there would be nobody to provide access to the property on that day anyway if he were not there. Once more he referred, but in the general terms which characterise the point in his correspondence, to the fact that he was disabled and suffered "from a number of medical problems".[23]The LRAP was prepared, reluctantly, to consider granting a short postponement in the light of what he said about the High Court hearing, provided, as it said in its letter of 15 November 2004, that the appellant was able to provide:
"authoritative documentation from an independent source that your presence is required in the High Court on the morning of Monday 22 November 2004..."
No such material was received from the appellant.[24]On 17 November 2004 he again wrote to the LRAP. There was no reference this time to any High Court hearing at all or indeed to the previous offer by the LRAP. He said, raising this issue for the first time, that he could not physically cope with trying to attend the hearing and property inspection on the same day:
"because that amount of exertion and travelling will exacerbate my symptoms and not allow me to continue or be fully involved in the process. The current arrangement to have the hearing and the inspection on the same day excludes me from the process by reason of my disabilities. I therefore request that you please arrange for them to take place on separate days."
[25]He also referred to his disabilities. In order that the LRAP could read about a small part of his disabilities, as he put it, he enclosed a judgment of the Court of Appeal in Malekout v. Allied Dunbar Assurance plc [2004] EWCA (Civ) 192. I shall briefly refer to the disability identified in that transcript.[26]The case concerned whether the disability to which the appellant was subject fell within the terms of his private insurance policy. The disability had prevented him from working as a dentist because the posture of a flexed neck for long periods required of a dentist could not be supported by him. This was the result of the combination of a congenital abnormality of his cervical ribs with fibrous bands and a condition known as thoracic outlet syndrome (or TOS) where the patient suffers symptoms due to the obstruction of the inlet of the thorax either of the neural pathways or vascular symptoms due to pressure on the subclavian vessels supplying the arms. It was this which affected his ability to work as a dentist.[27]There was reference in the judgment to a report of 1991 in which a doctor said that he might also have another medical condition, of uncertain diagnosis. The blood supply to his left arm and shoulder had become restricted and he has been complaining of continuous pains, headaches, fatigue, loss of concentration and sleepless nights.[28]Returning to the letter of 17 November 2004 and the absence of reference in it to any hearing in the High Court on 22 November 2004, and the absence of provision of any of the documentation which the Panel had indicated might enable it to consider a postponement favourably, it is to be noted that in the second witness statement, as I have already said, 15 November 2004 is referred to as the hearing date.[29]The appellant told me when giving evidence that it was not until the Thursday or Friday of this week, that is to say, 18 or 19 November 2004 that he was told that he was not required for the Monday. It is surprising, if that is so, that the Monday hearing is not referred to in the letter of 17 November 2004. The supporting documentation, which might have helped his application, was not supplied either. When the problems inherent in that answer were later pointed out, he said that he perhaps knew of the position earlier.[30]At all events, after the letter of 17 November 2004 there appears to have been a telephone conversation between the appellant and Mr Fredrick, a clerk at the LRAP. Mr Fredrick, who has now retired, had been the appellant's main point of contact. The telephone conversation in broad terms is agreed. Mr Fredrick referred to the possibility of a domiciliary visit and incorporating the inspection into that.[31]It was implicit that that possibility could not be acted on as it was now too close to the hearing date. That much is recorded in the appellant's letter of 19 November 2004 and is broadly not at issue. However, in that letter the appellant says, in complaining that that had never been explained to him until 19 November 2004 in the morning, that a domiciliary visit:
"may have been the solution to ensuring that I could participate."
[32]He said that he would try to provide access to the Committee that was visiting the subject property on 22 November 2004. He then continued:
"I shall however be exercising my statutory right to refuse entry to the landlord on 22 November 2004 as per your Mr Fredrick's letter dated 14 July 2004 because my landlord always tries to bully and intimidate me when he is at the property and I can no longer tolerate that. In any event, my landlord would already have had his say at your offices earlier that morning if that hearing goes ahead and I shall wish to have my say during the inspection."
[33]As I have said, from the evidence of the appellant and Ms Partridge this was not in the end really contentious. It also appears, and this too was not in the end really contentious, that after that telephone call and after the letter from the appellant of 19 November 2004 was received at the LRAP there was a further telephone conversation, this time between Ms Partridge and the appellant.[34]The appellant did not initially speak to her but was put through to her. I have no doubt that there was a conversation between the appellant and Ms Partridge on that day and that it took place after the call to Mr Fredrick. The appellant was passed on to Ms Partridge because it was a difficult call and the appellant was a disappointed party complaining at the refusal of the postponement he had sought.[35]The crucial issue is whether the domiciliary hearing was offered and refused. The appellant was not sure that that issue was even discussed as a possibility in the telephone call with Ms Partridge, although that I find highly likely in view of the concern he expressed in his letter, the fact that he was passed on to a more senior person, a deputy Panel secretary, that there would have been a discussion which incorporated reference to that point. The question, to my mind, is as to the terms in which it was discussed, to which I shall return.[36]As the appellant points out, the letter of 19 November 2004 written by Ms Partridge, if written after the phone call, does not refer to any such discussion. It is possible that it was written before the telephone conversation took place but Ms Partridge said that it was essentially a standard form letter. I am not sure that that is really an apt description of it because it refers to particular circumstances in the appellant's case. It says:
"With reference to your letter, dated 17 November 2004, and your further fax received today [which is a reference to the letter of 19 November 2004] the Rent Assessment Committee have fully considered the circumstance...and decided that the hearing will take place as arranged."
Crucially, it adds:
"At the hearing, you will have the opportunity to make representations to the Committee for the inspection to take place at a later date."
[37]It may be as a result of the conversation that the domiciliary hearing had become a non issue. It may be that that letter preceded the telephone conversation.[38]On 20 November 2004 the appellant wrote again to the Panel. This letter was before the Committee at the hearing on 22 November 2004. It made clear that it wanted the Committee to proceed with the site inspection but not with the hearing on 22 November 2004. It did not give any reason for selecting the site inspection to proceed but not the hearing. What it said was:
"My medical problems prevent me from participating in the hearing and the inspection on the same day."
[39]But that was not the point made in the letter of 19 November 2004 in which it was suggested the hearing proceed and the appellant could seek a postponement of the site inspection. As I have said, there were no reasons given for the choice of which part the appellant wished to see proceed on 22 November.[40]The appellant did not attend the hearing to make his points or to seek a postponement of the site visit, which went ahead. He had provided certain written submissions to the Committee. The appellant said in evidence to me that he chose the site visit for the 22nd and not the hearing because of the exertions and time involved in going from Mitcham to Central London to Streatham and back to Mitcham, with the involvement of the landlord, the pressure on him, and the loss of composure which such exertions would entail.[41]That may explain why he did not wish to do both hearing and site visit on 22 November 2004 but it does not explain the selection of the site visit. There was no medical evidence sent to the Committee explaining why he could not attend the hearing but could attend the site visit beyond the brief comments in respect of his illness in the letters, longer comments over the telephone, and the transcript of the Court of Appeal judgment. But those materials do not deal with his ability to attend the hearing, and he clearly can and does attend court hearings. The only relevant point as to why the site inspection was chosen was vouchsafed to this court when he said that there was nobody else to let the Committee into the subject premises.[42]At all events, the Committee, having considered his written material and referred to the postponements in its decision, gave reasons for its conclusions on the postponement and adjournment applications as follows:
"The Committee carefully considered the application for adjournment, which was based on the tenant's claim of ill health. No direct medical evidence of ill health was adduced except a transcript of a decision in the Court of Appeal in February 2004 when the tenant had sued an insurance company and made reference to a disability. The Committee was informed that four previous adjournments had been granted of this application and that the landlords had seen the tenant at the premises the previous week and had not been aware of significant ill health on his part. None of the previous adjournments had been on the basis of alleged ill health and the Committee clerk had offered the tenant the opportunity of a domiciliary hearing, which had been declined. Therefore the application was not only late, but was the fifth application by the tenant and was not supported by any recent evidence. The Committee concluded therefore that the application must proceed, and heard and cross-examined the evidence from the landlord's representatives."
[43]There was some contradictory evidence in the witness statements and letters from the appellant over when that decision with extended reasons was received. It is not necessary to go into the detail of that, but it at least reinforces the impression I have of his evidence that he is not reliable over precise dates or events.[44]I turn now to the oral evidence in respect of the telephone conversation on 19 November 2004. The appellant said that he could not recollect any domiciliary hearing being offered for 22 November 2004 or indeed postponement of that hearing for a domiciliary hearing to take place at any other time. He was not sure that it was discussed.[45]His principal recollection of the telephone conversations he had was that it was too late for a domiciliary hearing to be arranged now, but it would have been a possibility. He would have told Mr Fredrick that 22 November 2004 was not possible for a site visit with the landlord there. He said that he might later have had a domiciliary hearing with different personnel representing the landlord. I note that the appellant's letter of 19 November 2004 refers to a domiciliary hearing as only a possible rather than certain solution to his problems anyway.[46]Ms Partridge recalled a conversation close to the hearing and said that she had a clear recollection of it, saying that there could be a domiciliary hearing for 22 November.[47]The appellant had said that such a hearing could not take place at the subject premises because he did not live there. Nor could a domiciliary hearing take place where he lived because the accommodation was basic and unsuitable. She clearly recollected him saying that they were sitting on deckchairs there and that the accommodation was basic.[48]She said that she had made it clear to him that there was no question of a postponement to a date after 22 November 2004 because the requests for a postponement had already been refused. Therefore the offer of a domiciliary hearing was only for 22 November 2004. That offer was refused for the reasons given. Although it was clear, she said, that the appellant's relations with his landlord were not good, he had not said to her that he would not let the landlord in.[49]Mr Taylor points to the lack of a contemporaneous note, to the lack of a reference in the 19 November 2004 letter from Ms Partridge to such a conversation, to the passage of seven months before she made her witness statement, and to the absence of reference to that conversation in the appellant's letters.[50]However, the question of a domiciliary hearing was clearly raised before the LRAC on 22 November 2004 by the clerk because it is referred to in the Committee's decision, and it is referred to by the Committee in the same terms as it is referred to now by Ms Partridge, that is to say, there was an offer and it was rejected. That is in reality the best contemporaneous evidence of the telephone conversation.[51]I accept that there was a telephone conversation, as Ms Partridge has described it. She was an obviously honest witness and there was no dispute about that. She could recall her dealings with the appellant and added telling detail in respect of the deckchairs and his telling her at length about his illness.[52]The fact that she could recollect there being two possible venues for the domiciliary hearing, the subject property and the property where the appellant lived, adds weight to the fact that she is indeed recollecting accurately a telephone conversation of 19 November 2004. It may not be referred to in the letter of 19 November 2004 because it had ceased to be an issue or because the letter preceded the telephone conversation. Either way, I am satisfied that she is accurate in her recollection. The appellant clearly does get confused over dates and conversations, and is unreliable in that respect.[53]I am also satisfied in reaching a judgment about the quality of his evidence in this matter that there is a clear sequence of evidence showing him seeking to postpone and even to avoid a hearing of the appeal. There were postponements granted on two different grounds.[54]There were then several applications for postponements on varying grounds: the County Court hearing, the need for papers, a High Court hearing on the same day as the Committee hearing, and then, when it becomes plain that he simply cannot sustain that point, he raises for the first time the suggestion that he cannot do both the hearing and the site visit. Not merely that, but he makes it quite clear that it is the hearing that he seeks to have postponed and not the site visit.[55]In my judgement, if a solution to his problems had been found, he would have rejected it. That is a further reason why I reach the conclusion that the offer was made, and, because it did represent a solution, the offer was rejected. The appellant did not want the hearing to take place. That is also reinforced by the fact that he did not attend the hearing on 22 November 2004 and did not there seek, having had the hearing, to postpone for a very short time (a day or so) the site visit.[56]It is further reinforced by the absence of coherent evidence as to why it was the hearing that had to be postponed and not the site visit. In reality, no reason has been given at any stage as to why one rather than the other had to take place on that day.[57]I deal with the issue in that way not because it is for me to take a decision on the adjournment on its merits but because that is relevant to the decision as to whether I accept Ms Partridge's evidence that the offer of a domiciliary hearing for 22 November 2004 was made and then refused. I am satisfied that the offer was refused because it represented a solution to the date of the hearing.[58]However, even if I am wrong in relation to that factual issue and even if therefore the Committee was wrong on that, neither that nor the references, incorrectly, in its decision to four previous adjournments persuades me that the appeal should be allowed and remitted.[59]First, the Regulations to which I have made reference make clear the grounds upon which a one-sided request for an adjournment should be acceded to. There is a clear obligation on the RPTS to proceed expeditiously with the appeals it has before it. There had already been two opposed postponements, which took the duration of this appeal some months beyond that which was normal, and, if acceded to on this occasion, would have taken it very considerably further beyond the normal time for disposal of those matters.[60]There were five applications for a postponement, and applications made on varying and inconsistent grounds. The basis upon which the Committee were actually considering an application for postponement or adjournment on 22 November 2004 was the inability of the appellant to combine the hearing and the site visit in one day. There was no medical evidence that the appellant could not attend the hearing on that day. There was no reason given why he could not attend the hearing, with or without medical evidence, and seek a site visit later, an opportunity expressly offered to him by the Committee.[61]It was right to note the comment by the landlord as to how he appeared, and it was right to note that there was no recent medical evidence about the appellant's case but that there were only generalised comments about a range of illnesses. The decision of the Court of Appeal, drawing upon reports in 1991, could not be described as recent in a relevant sense, and, taking that material at its highest could not explain what it was that prevented the appellant attending the hearing or why he could not do both hearing and site visit, or why he could not attend the hearing and do the site visit later, i.e. why he chose one over the other.[62]It was important to note the lateness of the relevant application seeking postponement on the grounds that he could not manage the visit on the same day. It is particularly noteworthy that whether one takes June, 23 July 2004, the general practice of the Committee or the letter of 8 November 2004 as the point at which the appellant became aware that the hearing would take place on the same day as the site visit, he made no complaint about that until 17 November. Indeed he did not raise it at all on 13 November in the first letter he wrote after he could have been in no doubt, as a result of the letter of 8 November, that both hearing and site visit were going to take place on 22 November. He at no stage had sought a split between hearing and site inspection until the 17th.[63]Indeed it is difficult to see, even if what the appellant said had occurred in the telephone conversation was right, how an alternative result could have been arrived at. The appellant said that there had not been any offer of a domiciliary hearing for 22 November 2004, so a domiciliary hearing, on his evidence, could only have taken place if the Committee had been willing to postpone yet again the hearing in the teeth of its refusals to do so for a number of months, and this latest application for an adjournment on a point available to the appellant for some months.[64]Even if the Committee had been told that a domiciliary hearing was seen by the appellant as a possible solution, which is the highest he could put it on his correspondence, it would have been very difficult to see how the Committee rationally could have granted an adjournment given all that had gone before. The Committee, in my judgement, were entirely right and indeed obligated in the circumstances, even taking the appellant's evidence, to get on and decide the matter.[65]The suggestion that there was a breach of the Disability Discrimination Act 1995 because it was said the RPTS made it unreasonably difficult for a disabled person to attend a hearing in Central London and a site visit in Streatham is not made out either. There is no medical evidence for this assertion either in the transcript or in the general descriptions the appellant has offered of his illness. The possible stress and exertion involved in a hearing and site visit on the same day separated by the distance between Streatham, Central London and Mitcham is wholly insufficient.[66]The offer of a hearing and arguing there for a later site visit was simply not taken up. The offer of a domiciliary hearing by Ms Partridge and the reference to it as a possibility by Mr Fredrick provide no basis for inference that a domiciliary hearing was necessary or appropriate or that a failure to hold one could breach the DDA. It is clear that the offer was made and the discussion took place. Because the appellant was complaining about the postponements, the Panel rightly wanted to get the hearing on and it was seen, as I see matters, as a step to solving the problems which the Panel and the appellant were having over the litigation. It was not to solve some problem that he had as a disabled person which otherwise would have put the RPTS in breach of its statutory duties.[67]In the light of the decision to which I have come on the procedural matters, the substantive issues, it is accepted, do not call for consideration. Accordingly this appeal is dismissed.[68]MR MORSHEAD: I am grateful. I invite your Lordship to dismiss the appeal with the appropriate legal aid order, which I understand to be one in these terms, broadly, that the appellant do pay the costs of the first respondent with determination of the amount which it is reasonable for him to pay, and to be postponed generally pending any application for such a determination by the first respondent.[69]MR JUSTICE OUSELEY: Is that an appropriate order? Yes, I will make an order in those terms, if you would pass up a note of what you have just read out. If it turns out to be wrong, then I will vary it in due course.[70]MR MORSHEAD: I am grateful.[71]MR CLARKE: My Lord, I also seek an order of costs.

MR JUSTICE OUSELEY: You are going to have to argue that.

[73]MR CLARKE: I realise it may be difficult since I have not said anything all morning.

MR JUSTICE OUSELEY: Yes.

[75]MR CLARKE: The fact is that we have had to come down today. The first respondent is really here as a friend of the court and it is not clear to what extent he would be involved. In fact, it is clear that he would not be involved in certain issues and I have had to come along to argue that.

MR JUSTICE OUSELEY: Yes.

[77]MR CLARKE: In the event, they have not arisen, but we were not to know that.

MR JUSTICE OUSELEY: Yes.

[79]MR TAYLOR: In response to that, my Lord, if I say that it is clear the appeal was primarily and very largely an appeal addressed towards the Rent Assessment Committee rather than the second respondent, my submission is that their costs should not be allowed.[80]I have one thing to say as well about the form in which my learned friend suggests the order be made. I think it requires an order as well that any order not be enforced without the permission of the court.[81]MR JUSTICE OUSELEY: It probably does, yes, but I think that was inherent in the form of order which he referred to.[82]MR TAYLOR: I think my learned friend thinks that as well. I am not entirely certain that it is, and so it may be safest for it to be added.[83]MR JUSTICE OUSELEY: Then there is no difficulty in your learned friend inserting the appropriate protective words.[84]MR TAYLOR: Thank you, my Lord.[85]MR JUSTICE OUSELEY: Unless you have got something very compelling, you are not going to persuade me, I am afraid, Mr Clarke, so I will give a short judgment on your application for costs, unless there is something particularly that you want to say.[86]MR CLARKE: My Lord, could I perhaps just point out then in slightly more detail the grounds in particular.[87]MR JUSTICE OUSELEY: This is a reply point, not the renewed application. What do you want to say in reply to Mr Taylor?[88]MR CLARKE: He said in his submissions that this was primarily a matter between Dr Malekout and the Rent Assessment.[89]MR JUSTICE OUSELEY: It is primarily procedural. You want to say it was not primarily procedural.[90]MR CLARKE: When one looks at the amended grounds for appeal and application to appeal out of time it is clear from looking at those that there were actually quite significant grounds of appeal which only concerned my client, and in particular I am thinking of the ground at page 215, paragraph 26. This was an argument that the Rent Assessment Panel were wrong to hold that the fair rent which they assessed should not be subject to the capping provisions in the Rent Act (Maximum Fair Rent) Order 1999, and that was a significant argument for us. If it had been successful, it would have meant that the rent would have been capped here at £200 odd whereas in actual fact the Panel has assessed it at £680.[91]That is clearly a fundamental argument. In fact, it is probably the most fundamental argument in the whole proceedings for us, because, if the rent is capped at that level, it is an increase of only £60 odd for the last twelve years. In the event, that argument has not been pursued today, but it has been made clear, and it was made clear before the hearing today that the Rent Assessment Panel were not going to deal with that argument, so it was clearly necessary for me to come along today and protect our position on that. I have to say that it has not been proceeded with, but perhaps I can leave it at that.[92]MR JUSTICE OUSELEY: I think you have had another bite of the cherry, so, if Mr Taylor wants to say anything else.[93]MR TAYLOR: There is no more for me to add on the point.[94]MR JUSTICE OUSELEY: There is an application for costs by the first respondent in terms which he will provide to the court. But I will make the order subject to it not being enforced without the leave of the court. There is an opposed order for a second set of costs on behalf of the landlord. Certain it is that the landlord has a separate interest from the Committee and is entitled to be present. It is also right that the landlord would deal with certain issues which the Committee, as a matter of policy and practice, would decide not to deal with and which the landlord is probably better placed to deal with. Certainly they concern him more directly. Mr Clarke refers in particular to the capping provisions of the Maximum Fair Rent Order. In essence those matters have not been proceeded with today by Mr Taylor, but Mr Clarke says he was not to know that. The question which arises when contemplating a second order of costs is whether there is something exceptional about these circumstances. The fact that there may be a different interest and the fact that there may be a different argument to pursue does not of itself entail the ordering of a second set of costs. The appellant says, with some justification, that the thrust of his case related to the procedural matters but the grounds of appeal certainly did raise matters which would have been regarded as requiring the attendance of the landlord to deal with. It seems to me that justice in this case can best be done by recognising that the appellant did not pursue those matters and much of the attendance has been unnecessary, in the upshot, but more could have been saved by an earlier warning that the issues were not going to be proceeded with. This is a case in which I think a modest partial award of costs meets the justice of the circumstances and I shall make an award, which I am sure is modest in relation to the likely costs, of £1,000.[95]MR CLARKE: Thank you.

MR JUSTICE OUSELEY: Do you need any other order?

[97]MR CLARKE: I do not think it is necessary. I do not think an order for legal aid to be assessed is required.[98]MR JUSTICE OUSELEY: Very well. Thank you very much.[99]MR TAYLOR: My Lord, can I just try and get things clear? I am instructed that it is necessary for your Lordship to make that detailed assessment for legal aid purposes.

MR JUSTICE OUSELEY: I will make an order for a detailed assessment for legal aid purposes.

[101]MR TAYLOR: That enables my solicitors to deal with it.

MR JUSTICE OUSELEY: Thank you very much. - - - - - - - - - -