Lawer, R (on the application of) v Restormel Borough Council [2007] EWHC 2299 (Admin)

[2007] EWHC 2299 (Admin)Case No CO/8556/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 October 2007
Before
MR JUSTICE MUNBY
Between
R (SHIRLEY ANN LAWER)ClaimantRESTORMEL BOROUGH COUNCILDefendant
for The claimant did not appear and was not representedMr Jon Holbrook (instructed by Restormel Borough Council) for defendantHearing Hearing date: 5 October 2007
Judgment
[1]These are proceedings for judicial review in which the claimant seeks to challenge the exercise by the defendant local authority of its powers and duties under section 202 of the Housing Act 1996. The defendant for its part seeks to have set aside an ex parte injunction which the claimant obtained out of hours from the duty judge.

The background

[2]The claimant is a married woman with two children, aged respectively 15 and 10. She has, she says, suffered continual domestic violence at the hands of her husband. Things reached such a state of affairs that she felt unable to go on living in the matrimonial home, a property in Newquay of which she was the secure tenant.[3]On 6 June 2007 the claimant sought assistance from the defendant local authority. She was told that the local authority could not assist and that she should travel to Dover, where her sister lived and where the relevant local authority, Dover District Council, would be able to assist her. She travelled to Dover the same day, with the assistance of travel warrants provided by the defendant.[4]The next day, on 7 June 2007, the claimant spoke to the housing department of Dover District Council. She claims that she was advised to give up her tenancy. The file note of the interview records discussion of “poss[ible] mutual exchange using property in Newquay.” The next day, 8 June 2007, she wrote a letter (a copy of which is on Dover District Council’s file) “to whom it may concern” stating her “wish to terminate my residency with immediate effect.”[5]The claimant was interviewed by another officer of Dover District Council on 18 June 2007. By then, it would seem, she had given up the tenancy. The file note of the interview records:
“Has given up tenancy … She tells me that [P] advised her to terminate. I advised her that I would not have advised her to terminate as a council tenancy is secure and can be used to transfer etc. I advised her to contact her HA and rescind the termination.”
It appears from the same file note that the landlord was unwilling to rescind. On 20 June 2007 the claimant wrote to the landlord saying that her son would be returning the keys.[6]Although the claimant had written to Dover District Council on 8 June 2007 indicating that she wished to make a homelessness application, she never, according to Dover District Council, completed the relevant forms.[7]Be that as it may, on 18 July 2007 the claimant returned to Cornwall with her children. On 20 July 2007 she made a homelessness application to the defendant in accordance with the Housing Act 1996. The claimant was interviewed. Her application was refused by the defendant, the notification of its decision and reasons being given in accordance with section 184(3) of the Act by a letter dated 23 August 2007.[8]The defendant acknowledged in its letter that the claimant was homeless, as well as being in priority need, but concluded that by surrendering her tenancy she had become homeless intentionally within the meaning of section 191.[9]It is apparent from the letter that the defendant had obtained detailed information from Dover District Council, in particular as to the interview with the claimant on 7 June 2007. (Dover District Council had sent copies of the documents on its file to the defendant on 10 August 2007.) The letter records what the claimant had told the defendant in her interview, including in particular her assertion that she had been advised on 7 June 2007 to give up her tenancy. The letter records Dover District Council’s position as being that this was “untrue.” This appears to be a reference to a file note dated 3 August 2007 sent by Dover District Council to the defendant together with the other documents on 10 August 2007. Written by the officer who had interviewed the claimant on 7 June 2007, this recorded the claimant as having said at the interview on 18 June 2007 that she had been advised to surrender the tenancy. The file note continues:
“This is wholly untrue, at no time was Mrs Lawer advised to surrender her tenancy and furthermore would never be given such advice by anyone in this section. We would in fact caution anyone against such action and frequently have to do so. I did advise that the Newquay property could be used as a method of obtaining a Mutual Exchange.”
[10]The defendant’s letter concluded by explaining that although the defendant would nonetheless provide the claimant with accommodation for a reasonable period to enable her to find her own accommodation in the private sector, that accommodation would not in any event be provided beyond 10am on Friday 21 September 2007.[11]The claimant wrote to the defendant on 6 and again on 9 September 2007. The defendant, properly, treated the letter dated 9 September 2007 as a request by the claimant for a review under section 202 of its previous decision. The defendant wrote to the claimant to that effect by an undated letter which appears to have been sent on or shortly after 11 September 2007. The letter, which was written by Giselle White, the defendant’s Assistant Housing Services Manager, said:
“I will now wait for yourself or advocates acting on your behalf to put in writing any grounds that you wish to be considered during the review. Unfortunately “I am not happy with the decision” is not a ground that can be considered. Regarding your request that this Authority continue to accommodate you pending the outcome of the review I regret to inform you that this will not be possible. I can confirm that no further accommodation will be provided for you after the 21st September 2007. … When I have received the grounds for requesting a review I will contact you to make an appropriate appointment to discuss your appeal.”
[12]No grounds in support of the review have ever been sent to the defendant, either by the claimant or by those representing her.

The legal framework

[13]I need not rehearse the scheme of the Act in any detail. It suffices for present purpose to draw attention to two provisions. The first relates to the local authority’s duty to review a decision which it has taken in accordance with section 184 of the Act. Section 184(3) requires the local authority to notify the applicant of its decision and, if the decision is adverse to her, to inform her of the reasons for its decision. Section 202(4) provides that:
“On a request being duly made to them, the authority or authorities concerned shall review their decision.”
[14]The second relates to the provision of temporary accommodation by the local authority pending the outcome of its decisions. Section 188(1) of the Act provides that, if it has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need within the meaning of section 189, the local authority “shall” secure accommodation for the applicant pending its decision under section 184. Section 188(3) provides that:
“The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202). The authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review.”
[15]So the defendant had the power but was under no duty to provide the claimant with accommodation after notification to her of its decision on 23 August 2007.[16]Although the local authority is not under any duty to provide accommodation in these circumstances, it is under a duty, if requested to provide accommodation pending the outcome of the review, to consider whether or not to exercise its power: see generally R v Camden London Borough Council ex p Mohammed (1998) 30 HLR 315 approved by the Court of Appeal in R v Brighton & Hove Council ex p Nacion (1999) 31 HLR 1095.[17]This involves carrying out a balancing exercise. As Latham J put it in Mohammed at page 321:
“the underlying requirement of the exercise of this discretion is to keep, on the one hand, well in mind the objective of fairness between those who are homeless in circumstances where the local housing authority has in its first decision decided that there is no duty to the particular applicant and, on the other hand, to give proper consideration to the possibility that the applicant may be right, and that to deprive him or her of accommodation could result in a denial of an entitlement.”
He continued:
“In carrying out that balancing exercise, it is clear that there are certain matters which will always require consideration. First, the merits of the case itself and the extent to which it can properly be said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way. Secondly, it requires consideration of whether there is any new material, information or argument put before the local housing authority which could have a real effect upon the decision under review. Finally, it requires consideration of the personal circumstances of the applicant and the consequences to him or her of an adverse decision on the exercise of discretion. It may well be that in some cases other considerations may prove to be relevant. The question, in this case is whether those considerations where, in fact, borne in mind and properly given effect to by the respondent Council. I say that because the statement of policy which uses the phrase “exceptional reasons” seems to me, on the material that I have indicated, to be of itself a perfectly rational way of describing the approach.”
[18]In R v Newham London Borough Council ex p Lumley (2001) 33 HLR 11 at para [54], Brooke LJ said that Latham J’s reference to “the merits of the case” must be taken to have meant “the merits of the applicant’s case that the council’s original decision was flawed.”[19]Latham J’s approach in Mohammed was endorsed by the Court of Appeal in Nacion.[20]In Nacion the Court of Appeal went on to consider the circumstances in which judicial review would lie to challenge the decision of a local authority which had refused to provide accommodation pending the completion of a section 202 review. Tuckey LJ said this at page 1100:
“the provision of temporary accommodation pending appeal (and the same applies pending review) is entirely in the discretion of the council. Where a council, as in this case, has obviously considered the material factors which Latham J identified in his judgment, it is an entirely futile exercise to seek to say that in some way that discretion was wrongly exercised by coming to the High Court for judicial review and saying, as this applicant does, “We have an arguable case on the appeal to the County Court”
. Applications for judicial review on this basis should be strongly discouraged. It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have.”[21]Lord Woolf MR added this at page 1101:
“In his speech, in [Puhlhofer v Hillingdon London Borough Council [1986] AC 484], Lord Brightman pointed out that there can be limits on the circumstances in which a court can intervene on judicial review. Our reservations are as to how far those comments of Lord Brightman are of general application. In a case such as the present case, I would suggest that they are clearly applicable. If an authority refuses even to consider exercising its discretion under section 204(4) then I can understand that judicial review may be an appropriate remedy. Apart from that situation, I have difficulty in envisaging cases where application for judicial review will be appropriate.”
[22]That was a reference to the passage in his speech in Puhlhofer at page 518 where Lord Brightman said:
“I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – eg bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity … Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely. My Lords, I would dismiss this appeal. And I express the hope that there will be a lessening in the number of challenges which are mounted against local authorities who are endeavouring, in extremely difficult circumstances, to perform their duties under the Homeless Persons Act with due regard for all their other housing problems.”

The litigation

[23]I left the narrative at the point where Ms White, on behalf of the defendant, wrote to the claimant on or shortly after 11 September 2007.[24]On 19 September 2007 the claimant went to see a solicitor. Later the same day the solicitor spoke to Ms White. There are three virtually contemporaneous records of that conversation: the solicitor’s attendance note; Ms White’s attendance note; and a letter which the solicitor wrote to his client, the claimant, the same day. All are to the same essential effect. There are no material discrepancies, though in the nature of things some contain additional information not included in the others.[25]The material part of the solicitor’s attendance note reads as follows:
“I was requesting an extension of [the] temporary accommodation pending determination of the review as she would be homeless. Giselle White said her difficulty in extending the temporary accommodation was the merits of the case, she felt that on the basis of the evidence she had that the client did not have any merit in the review. I said based on my clients instructions that she had been seen by a non-housing officer when she had been sent from Cornwall to Dover in the first instance, and, both my client and her sister would give evidence to the effect that the housing officer she saw in Dover and in the first instance advised her to give up the tenancy of her property in Newquay. Giselle said notwithstanding that evidence she had notes of evidence from those first two meetings in Dover which were inconsistent with what Mrs Lawer was saying. I said on the balance of hardship I felt the court would grant an Interim Order on a judicial review and was looking to avoid that process if possible. Giselle White indicated that she could only follow the policy decision of Restormel Borough Council and, if we wanted to proceed we would have to make the application to the High Court.”
[26]The solicitor’s letter the same day to the claimant is to the same effect. Referring to his conversation with Ms White the letter records her telling him that:
“she has in her possession copies of the contemporaneous notes made by the two housing officers at Dover District Council of the 7th and 18th June 2007. She says that both of the notes respond to what was said about them in Restormel letter of the 23rd August 2007.”
[27]The material part of Ms White’s attendance note reads as follows:
“I advised that we would not be accommodating as he was aware it is not the policy of this authority and that there are no merits to the case. [He] said it was because she had been told to give notice I informed him that I have evidence on the file that this was not the case and, even if it had been she was later advised to withdraw the notice and failed to do so. [He] said that that he would go for a Judicial review but that he does not want to do that as we will be tied down for 3 months waiting for a C[our]t date. I again advised him that this authority will not accommodate and I would wait for his letter.”
No such letter was ever sent.[28]The claimant’s accommodation by the defendant came to an end on 21 September 2007. Thereafter her parents were able to accommodate her for a few days until 26 September 2007. Since then, she says, she has been street homeless, sleeping in a car with her two children. A letter dated 24 September 2007 written to the defendant by the claimant’s parents explained that they would not be able to put her and the children up after 26 September 2007 because their son and daughter–in–law were coming down for a week on 27 September 2007.[29]The next communication the defendant had with the claimant or her solicitor was on Friday 28 September 2007 when at 1.21pm the solicitor faxed the claimant’s Form N461 and Form N463 to the defendant. He then faxed the full court bundle to the Administrative Court Office. At 2.12pm he faxed the bundle to the defendant.[30]It is to be noticed that the documents were faxed only to the defendant’s housing department and not also, as they should have been, to the defendant’s legal department: see the Pre-action Protocol. They were placed on Ms White’s desk, but unfortunately she was out and did not return until 3.20pm. She contacted the defendant’s legal department and began to draft a detailed letter in response. At about 4.50pm the claimant’s solicitor telephoned Ms White and told her that she would need to put her out-of-hours staff on notice that they would need to house the claimant that evening because an injunction was being sought. Unfortunately Ms White did not tell the claimant’s solicitor that she was drafting a letter in response. Equally unfortunately, she did not ask for details of how she could contact him out of hours. Nor, surprisingly, did the solicitor volunteer this information.[31]At about 5pm a member of the defendant’s legal department tried to speak to the claimant’s solicitor. He was told by the solicitor’s secretary that he was with a client. She tried to put him through without success. It was left that the solicitor would ring him back. The call was not returned, so at 5.07pm the same person sent the claimant’s solicitor an e-mail:
“What is the current situation? I have just tried to contact you and left a message with your secretary. I need to know urgently.”
There was no response until the following Monday morning, 1 October 2007, when the following e-mail was sent at 8.46am:
“Thank you for your e-mail which is noted as arriving at 5.07pm. As our offices close at 5pm, your e-mail was not received until Monday morning.”
Well might the defendant’s legal department reply as it did by e-mail at 10.41am:
“With respect I think you have missed the point. The e-mail refers to a telephone call I made and I spoke to [your] secretary, the telephone conversation ending at 5.00pm. I left a message with her asking for [you] to ring back. As the call was not returned I sent the e-mail at 5.07pm. It is surprising that e-mails are not “received” or calls returned after 5.00pm in a legal practice which is able to conduct High Court litigation out of hours.”
As our offices close at 5pm, your e-mail was not received until Monday morning.”[32]Ms White finished preparing the detailed letter explaining the defendant’s decision. It was e-mailed to the claimant’s solicitor at 6.22pm. By then he had, it would seem, left the office, so it was not received until Monday morning, 1 October 2007. (In an e-mail sent to Ms White at 8.45am on the Monday morning the claimant’s solicitor said that “As our offices close at 5pm, your e-mail was not received until Monday morning.”) In any event it would have arrived too late, because the claimant’s application to Calvert-Smith J for an ex parte injunction (see below) was made at about 6.10pm and by 6.25pm the claimant’s solicitor was telephoning the defendant to inform it that Calvert-Smith J had made the order.

The basis of the claimant’s case

[33]In her Form N461 the claimant challenges the defendant’s decision under section 188(3) of the Act refusing to provide her with temporary accommodation pending the outcome of the review.[34]Her case, as set out in her detailed statement of grounds, can be summarised as follows: i) It is said that “no consideration” was given by the defendant to the three matters identified by Latham J in R v Camden London Borough Council ex p Mohammed (1998) 30 HLR 315. The defendant’s decision, it is said, was made “without having regard to any of the three factors in Mohammed.” The defendant, it is said, “failed to take the three factors set out by Latham J in Mohammed into consideration” and “failed entirely to carry out the balancing exercise mandated by Latham J.” Accordingly, it is said, the case constitutes “precisely the exceptional circumstances in which judicial review is the appropriate remedy as envisaged by Woolf MR in Nacion.” ii) Next it is said that the defendant failed to take into account the fact that the claimant had no alternative accommodation. iii) Thirdly, it is said that the defendant’s decision was irrational. It is, it is said, “incapable of being sustained.” It is said that the claimant’s prospects of success on review are “good” and that her personal circumstances are “exceptional,” having recently escaped from an abusive marriage and now being street homeless with two children. iv) Finally, it is said that the defendant failed to provide any or any adequate reasons for its decision.[35]The claimant sought an immediate mandatory injunction to require the defendant to secure suitable accommodation for herself and her children pending determination of the review. Her Form N463 asked that the application for interim relief be considered within 1 hour. (In the event, as we have seen, the application came before Calvert-Smith J at about 6.10pm.)[36]The Form N461 asserted that “Time has not allowed the [pre-action] Protocol to be followed.” No adequate explanation for this, on the face of it surprising, assertion has ever been forthcoming.[37]The evidence in support is contained in a witness statement by the claimant dated 28 September 2007, exhibited to which are copies of the defendant’s letter of 23 August 2007, the defendant’s undated letter of September 2007 and the solicitor’s attendance note of his conversation with Ms White on 19 September 2007.

Taking stock

[38]It is convenient at this point to pause briefly and take stock.[39]Central to the claimant’s case as articulated in her detailed statement of grounds – and crucial to the success of that case, it might be thought, given what the Court of Appeal had said in Nacion – was the repeated assertion that the defendant had given “no consideration” to the Mohammed factors, that it had made its decision “without having regard to any of the three factors in Mohammed” and that it had “failed entirely to carry out the balancing exercise mandated by Latham J” (emphasis added).[40]But that simply was not so.[41]The claimant’s solicitor had recorded explicitly, both in his attendance note of his conversation with Ms White on 19 September 2007 and in his letter the same day to the claimant, that Ms White had explained and justified the defendant’s decision by reference to the merits of the case – that is, as she was careful to point out (and as the solicitor recorded in his attendance note), the merits of the claimant’s case for review. Moreover, the same documents recorded Ms White as further justifying the defendant’s stance by reference to the evidence it had obtained from Dover District Council. So the claimant’s solicitor’s own contemporaneous records of the conversation quite plainly demonstrate the defendant’s consideration of the first of the three factors identified by Latham J in Mohammed.[42]So far as concerns the second of the factors identified in Mohammed,it is difficult to see what the defendant was supposed to do, for as we have seen (see paragraphs [12] and [27] above) neither the claimant nor her solicitor ever supplied any further material, information or arguments in support of the review, despite both of them being asked to do so.[43]So far as concerns the third Mohammed factor, it would seem obvious enough that the defendant was aware of and had taken into account the claimant’s personal circumstances. After all, and as the solicitor’s attendance note made clear, he had emphasised to Ms White that the consequence of the defendant’s stance was that the claimant would be homeless, just as he had drawn attention to the hardship she would suffer.[44]On any basis, as it seems to me, the claimant’s case was shot through with difficulties.

The hearing before Calvert-Smith J

[45]The application to Calvert-Smith J was made by telephone, ex parte and out of hours, by counsel instructed on behalf of the claimant. She prepared a detailed note of the hearing, which is dated 1 October 2007. The hearing, as we have seen, lasted no more than about 15 minutes, if that. As her note records, Calvert-Smith J did not have any of the papers before him. So he was entirely dependent upon what he was told by counsel.[46]She set out the factual background. She read out to him the critical paragraph from the undated letter of September 2007, but although she referred to the telephone conversation between the claimant’s solicitor and Miss White on 19 September 2007 her note does not record her as having read out to the judge her solicitor’s attendance note of the conversation. Indeed, it would seem clear that she did not, or at least not in such a way as to bring its full significance to the judge’s attention.[47]I say this for two reasons: i) In the first place, her note records her as having explained to the judge the need for compliance by the local authority with the requirements spelt out by Latham J in R v Camden London Borough Council ex p Mohammed (1998) 30 HLR 315, and then records her telling the judge:
“There was no evidence that the Council had addressed its mind to any of these matters.”
Since, as we have seen, it was clear from that very attendance note that the defendant had indeed addressed its mind to some at least of the relevant matters, I find it impossible to imagine that Calvert-Smith J would have let that bald assertion pass unchallenged if the full significance of the solicitor’s attendance note had been present to his mind. In fact the very next matter recorded in her note is Calvert-Smith J’s statement that he was satisfied that an order should be made. ii) Secondly, Mr Jon Holbrook’s note of his subsequent application to Calvert-Smith J later the same evening (see below) records the judge as having told him that he (the judge) had been told by the claimant’s counsel that the defendant’s letter saying that it would not provide interim accommodation pending a review had given no reasons for this decision. Plainly the judge was unaware that reasons had been given, even if only during the subsequent telephone conversation between the solicitor and Ms White.[48]In the event, as we have seen, Calvert-Smith J made an immediate mandatory order requiring the defendant to provide the claimant and her children with suitable accommodation pending its decision on review. The order provided that the defendant could apply to discharge on 48 hours’ notice.[49]Shortly after he had made that order, Calvert-Smith J heard an application by the defendant to discharge his order. I have the note of that hearing prepared by the defendant’s counsel, Mr Jon Holbrook. His application was made at about 6.50pm. He was unavailing in his attempt to persuade the judge to discharge the order, but in response to his submission that if the order merely provided for discharge on 48 hours’ notice the defendant would probably have to wait several months before getting a hearing date Mr Holbrook managed to persuade Calvert-Smith J to modify the order so as to provide that if such an application was made by 5pm on Monday 1 October 2007 it was to be heard on or before Friday 5 October 2007.

The aftermath

[50]As we have seen, the defendant’s letter of 28 September 2007 was received by the claimant’s solicitor on the morning of Monday 1 October 2007. At 10.41 the defendant’s legal department sent the e-mail to which I have already referred. It followed that up with a letter which was faxed to the claimant’s solicitor at 11.20am. In that letter the defendant indicated that it was considering applying for a wasted costs order. It sought the answers to a number of highly pertinent questions, including in particular why there had been no reference to the content of the conversation with Ms White on 19 September 2007 either in the grounds or in the supporting witness statement. A reply from the claimant’s solicitor later the same day persisted in the assertion that “it is clear that the Council had failed to apply the appropriate test as set out in … Mohammed … at no time until after the Claim Form was issued did the Council seek to address the “Mohammed” criteria.” It also contained the assertion that the attendance note “was brought to the Judges attention and read to him by our client’s counsel.”[51]According to what the claimant told one of the defendant’s officers the next day, Tuesday 2 October 2007, on the Monday afternoon she had been told by her solicitor that he was not willing to continue to pursue her case “because she would have no chance of winning.” Be that as it may, the same day, 1 October 2007, the claimant gave notice of acting in person.

The defendant’s application

[52]On Monday 1 October 2007 the defendant filed an acknowledgement of service and an application notice seeking the discharge of the order made by Calvert-Smith J. At that stage, apparently, the sealed order was not to hand and the date initially offered by the Administrative Court for the hearing of the defendant’s application was 12 November 2007. Once the order was produced, however, the court office, in accordance with the judge’s direction, listed the application for hearing before me on Friday 5 October 2007.[53]It was that application which, in accordance with Calvert–Smith J’s order, came on for hearing before me on Friday 5 October 2007. The defendant was represented, as it had been before Calvert–Smith J, by Mr Holbrook. The claimant was neither present nor represented though I am satisfied that she had been given notice (as, indeed, so also had the solicitor previously acting for her). The day before, 4 October 2007, the solicitor had faxed to the court a copy of a letter dated 4 October 2007 from the claimant addressed “to whom it may concern” stating “I wish to withdraw my application for Judicial Review to save any cost on the 5th October 2007.” The claimant’s letter made no reference to her application for an injunction. The letter from the solicitor, which made clear that he was no longer acting for her, referred in contrast to her “decision to withdraw her judicial review claim and injunction application.”[54]In the circumstances it seemed to me to be safer to deal with the matter on the merits, and having heard Mr Holbrook’s submissions, rather than merely treating a very brief letter from a litigant in person who might or might not have had legal advice as justification for dismissing her applications without more ado.

The defendant’s case

[55]The defendant’s case, as set out in its acknowledgement of service and the grounds in support of its application to discharge the injunction and as deployed before me by Mr Holbrook, is stark and simple.[56]In the first place, the defendant submits that none of the claimant’s case has any reasonable prospect of success. Specifically, the defendant submits that the first and second limbs of the claimant’s case as summarised in paragraph [34] above can only be got off the ground if one ignores completely the telephone conversation between the claimant’s solicitor and Ms White on 19 September 2007. The third and fourth limbs of the claimant’s case are characterised by the defendant as being hopeless. In relation to the latter point the defendant observes out that there is no statutory obligation to give reasons in relation to a decision under section 188 (contrast the requirements in section 184(3)) and submits that any common law requirement to give reasons was adequately met by the reasons supplied orally during the telephone conversation on 19 September 2007 and subsequently in writing on 28 September 2007. This letter, moreover, the defendant says, renders the claim academic.[57]The essential thrust of the defendant’s case is that, given the fact of the conversation between the claimant’s solicitor and Ms White on 19 September 2007, and given the content of the conversation as recorded by her solicitor in his attendance note and letter, it is impossible for the claimant to contend that the defendant erred in any of the four respects relied upon. On the contrary, the contemporaneous records of the conversation show that the defendant did give full and proper consideration to the exercise of its discretion.[58]Secondly, the defendant submits that the injunction granted by Calvert-Smith J should be discharged because of material non-disclosure by the claimant. It is said that the claimant failed to bring to Calvert-Smith J’s attention, adequately if at all, the substance of the conversation between the claimant’s solicitor and Ms White on 19 September 2007. The defendant’s case is very simple. If the judge’s mind had been adequately directed, as it should have been, to both(a) the learning in Nacion and(b) the substance and significance of the crucial conversation, it is inconceivable that he would have made the order he did. Indeed, if the judge’s mind had been adequately directed to the substance and significance of the crucial conversation, that alone would have doomed the application. This was therefore, says the defendant, non-disclosure of highly material information. Indeed, non-disclosure of material so significant that, properly explained as it should have been, it would have demonstrated to any judge considering the application why it was devoid of merit.[59]Thirdly, and in any event, the defendant submits that the injunction should be discharged because the claimant cannot make out the strong prima facie case that is required, because the potential balance of injustice favours not granting an injunction, and because the public interest likewise lies in not granting an injunction: see R v Kensington and Chelsea Royal Borough Council ex p Hammell [1989] QB 518 at pages 531, 536. The first of these points requires no elaboration. Mr Holbrook says that the claimant’s case, far from having strong prospects of success is hopeless. In relation to the second and third, Mr Holbrook makes the following submissions. The Act is not intended to ensure that all homeless people are accommodated. It is, as Lord Hoffmann put it in O’Rourke v Camden London Borough Council [1998] AC 188 at page 193, “a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy.” As Mr Holbrook points out, the statutory scheme does not make marital breakdown a basis for giving priority need. And the scheme explicitly denies protection, even where there would otherwise be priority need, to those who have become homeless intentionally. The defendant had decided on 23 August 2007 that the claimant was intentionally homeless. And the court, he says, should be slow to grant an injunction which will undermine the authority of the defendant and its officers, who have diligently and fairly discharged their duties under the Act, and which will at the same time divert scarce resources from those with proper claims to statutory assistance. If obtaining an injunction is seen to be as easy as it apparently was in this case, then the wrong message will be sent to those who could and should be looking to their own resources to obtain accommodation. And in this connection Mr Holbrook points to the fact that the claimant’s immediate need for accommodation was seemingly only for the one week during which her parents could not accommodate her and to the fact that her evidence is largely silent as to any efforts she may have made to obtain accommodation from other sources since receiving the defendant’s letter of 23 August 2007.

Without notice applications

[60]The defendant’s submissions in relation to alleged material non-disclosure merit rather more detailed analysis.[61]This is, unhappily, yet another case which necessitates the re-statement of what ought to be well-known principles.[62]In the first place, “to grant an injunction without notice is to grant an exceptional remedy”: Moat Housing Group South Ltd v Harris [2005] EWCA Civ 287, [2006] QB 606, at para [71]. “As a matter of principle no order should be made in civil or family proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given”: Moat Housing at para [63].[63]Unless the case is one where to give notice might itself defeat the ends of justice – I have in mind, for example, applications for Anton Pillar or Mareva injunctions and cases where there are compelling reasons to believe that a child’s welfare will be compromised if parents or carers are alerted in advance to what is going on – an ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency, and even then it should normally be possible to give some kind of albeit informal notice: X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, at para [53].[64]Secondly, those who seek relief ex parte are under a duty to make full and frank disclosure. There is a heavy burden on anyone who seeks ex parte relief. As I said in In re S (A Child) (Family Division: Without Notice Orders) [2001] 1 WLR 211 at page 216:
“The burden on those who apply for ex parte relief is, as indicated in Memory Corpn plc v Sidhu (No 2) [2000] 1 WLR 1443, a heavy one. And, as the same case shows, the duty of full and frank disclosure is not confined to the material facts: it extends to all relevant matters, whether matters of fact or of law. As Lord Donaldson of Lymington MR said in In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211, 229, it cannot be too strongly emphasised that those who seek ex parte injunctions are under an obligation to make the fullest and most candid disclosure of all relevant circumstances known to them.”
[65]Moreover, as Mr Holbrook points out, referring for this purpose to Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at page 1356, the applicant must make proper inquiries before making the application. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.[66]Those who fail in the duty of disclosure, and those who misrepresent matters to the court, expose themselves to the very real risk of being denied interlocutory relief, whether or not they have a good arguable case or even (see Behbehani v Salem [1989] 1 WLR 723 at page 726) a strong prima facie case. On the other hand, as Balcombe LJ pointed out in Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at page 1358, this rule must not be allowed itself to become an instrument of injustice. Nor, as Slade LJ pointed out in the same case at page 1359, must the application of the principle be carried to extreme lengths. In every case the court retains a discretion to continue or to grant interlocutory relief even if there has been non-disclosure or worse. In deciding how that discretion should be exercised the court will have regard to all the circumstances of the case, including the degree and extent of the culpability with regard to the non-disclosure or misrepresentation: see Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at pages 1357, 1358, and Behbehani v Salem [1989] 1 WLR 723 at pages 727, 728, 729.[67]In B Borough Council v S (By the Official Solicitor) [2006] EWHC 2584 (Fam), [2007] 1 FLR 1600, at para [41], Charles J recorded his own observations that practitioners(a) too regularly do not follow and implement the principles laid down in the cases I have referred to and(b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted. He had earlier observed at para [37]:
“There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.”
[68]I respectfully agree with everything said by Charles J. His experiences, I have to say, exactly mirror my own experiences both in the Family Division and in the Administrative Court.[69]To all this I would add three further observations. In the first place, the duty to make proper disclosure requires more than merely including relevant documents in the court bundle. Proper disclosure for this purpose means specifically identifying all relevant documents for the judge, taking the judge to the particular passages in the documents which are material and taking appropriate steps to ensure that the judge correctly appreciates the significance of what he is being asked to read. Secondly, the burden and the duty on counsel is all the more onerous where, as in this case, a telephone application is being made to a judge who has none of the papers in front of him and knows nothing at all about the case. Thirdly, the applicant is not exonerated from any of these obligations merely because some kind of informal notice of the application may have been given to the respondent. It matters not that the respondent may have been alerted; what matters is that the respondent is not before the court when the application is being made.

Discussion

[70]I accept Mr Holbrook’s analysis of the law and the facts. I accept, in particular, his analysis of the significance of the crucial conversation on 19 September 2007 between the claimant’s solicitor and Ms White.[71]In the light of that conversation I do not think it an exaggeration to say, as the defendant would have me accept, that the claimant’s entire case is hopeless. Her case, in my judgment, is devoid of arguable merit. It has, and always had, no reasonable prospect of success. Be that as it may (and I appreciate that the claimant’s application for permission is not, strictly speaking, before me) what is quite clear in my judgment is that the claimant cannot show the strong prima facie case which alone could justify an application for an interim mandatory injunction. On that simple ground alone the defendant, in my judgment, is entitled to have this injunction discharged. That said I think there is very considerable force in the other submissions Mr Holbrook makes as to why both the balance of injustice and the public interest militate against the grant of an injunction.[72]Properly evaluated in the light of all the material before the court – and it must be emphasised that I have had the benefit, denied to Calvert–Smith J, of reading and re–reading the full bundle – there is, in my judgment, simply nothing in the case which begins to justify, or which could ever have justified, the grant to the claimant of injunctive relief.[73]But there is another, and quite separate, reason why Mr Holbrook, in my judgment, is entitled to succeed in his application. There was, as it seems to me, significant non–disclosure to Calvert–Smith J.[74]I need not repeat what I have already said. In the light of my analysis of what took place, as recorded in the note of the hearing prepared by the claimant’s counsel (see paragraphs [45]–[47] above), Mr Holbrook, in my judgment, makes good his complaint (see paragraph [57]). Counsel no doubt made some reference to the crucial conversation, but there is nothing in her note to show that the judge was taken to the crucial passages in the attendance note. And fatally, as it seems to me, counsel asserted, unequivocally and in terms, that “There is no evidence that the Council has addressed its mind to any of these [ie, the Mohammed] matters” (emphasis added). That was, as it seems to me, very seriously indeed to mis–state matters. Far from there being no evidence that the defendant had addressed its mind to any of these matters, there was plenty of evidence (not least in the contemporaneous attendance note and letter of the claimant’s solicitor) that the defendant had indeed addressed its mind to them.[75]I acknowledge the solicitor’s assertion (though he was not himself, of course, party to the hearing) that his attendance note was indeed read out to Calvert–Smith J. But the key point remains. If the full significance of what the attendance note said had been brought home to the judge’s mind – not just the factual significance of what it recorded Ms White as having said but also its legal significance in the light of the Court of Appeal’s observations in Nacion – I find it very hard indeed to imagine that Calvert–Smith J would have been persuaded to make the order he did. And the fact remains: there is no reference in counsel’s note of the hearing to the judge having been taken to Nacion, and counsel’s erroneous assertion that “There is no evidence that the Council has addressed its mind to any of these matters” seems, not surprisingly, to have had a powerful effect on the judge’s mind. For, as I have already observed, the very next matter recorded by counsel in her note is Calvert–Smith J’s statement that he was satisfied that an order should be made.[76]I am not suggesting for a moment that counsel was consciously misleading the judge. For all I know her opportunity for mastering the papers may have been limited. And she may have been lulled into a false sense of confidence by the dogmatic statements to the same effect which, as I have pointed out, appeared so frequently in the claimant’s detailed statement of grounds. But none of that gets away from the fact that the judge was misled.[77]In all the circumstances the defendant is entitled to have the injunction set aside on this ground as well. I need not go on to consider whether the circumstances of what happened before Calvert–Smith J are such as to debar the claimant from making a further application for an injunction – for the mere fact that an ex parte order is set aside on the grounds of non–disclosure does not, of itself and without more ado, necessarily debar the applicant from making a renewed application. But the fact is that the claimant has chosen not to appear, having indicated that she no longer seeks to pursue an application for judicial review. Moreover, and in any event, the defendant has demonstrated that, irrespective of any question of non–disclosure, the case is simply not one in which it would be appropriate to grant an injunction.

Conclusion

[78]I shall accordingly discharge the injunction granted by Calvert–Smith J. And given the claimant’s indication that she wishes to withdraw her application for judicial review I will dismiss her application for permission.

Some final observations

[79]Too often, in my experience, ex parte applications are made which are not urgent or which, more frequently, have become urgent only because of unnecessary, inappropriate and usually unexplained delay. The present case is a good example.[80]The defendant had made its position absolutely clear on 19 September 2007. There was not the slightest prospect that the defendant would ‘climb down’, yet the application which was eventually made was delayed for nine days and then presented to the Administrative Court at about 1.45pm on a Friday afternoon with a request that the papers be put before a judge within the hour. This was no way to treat a court which is struggling, with limited resources, to meet an ever burgeoning case-load. More important, it was no way in which to treat the defendant, a public body which at minimal notice was expected to react to an application singularly devoid of merit and which, in the event, was required, no doubt at considerable expense, to accommodate the claimant in circumstances where no injunction should ever have been granted. It simply is not good enough.[81]The claimant’s Form N461 contained the remarkably glib assertion that “time has not allowed” for compliance with the Pre-action Protocol. As I have already remarked, no adequate explanation for that surprising assertion has ever been forthcoming. No explanation has been provided as to why the application was delayed for nine days or why it was not possible to give the defendant warning, even if only informal warning, before 1.30pm on the Friday afternoon that an application was being made the same day. The fact is it surely was possible. The defendant could and should have been given adequate warning of the application which was about to be made.[82]On top of all this, the requirement in the Pre-action Protocol for service on the local authority’s legal department seems to have been ignored – with, as we have seen, unfortunate consequences – and the claimant’s solicitor then became for all practical purposes incommunicado, having omitted to give the defendant details of how he or his counsel could be contacted out of hours whilst the application was being made. True it is, as I have acknowledged, that Ms White did not ask for this information, but she is hardly to be blamed for that: she was, after all, a housing officer not a lawyer and the claimant’s solicitor should in any event have proffered the information without having to be asked.[83]I have taken some time to go into these matters in what may be thought excessive detail because this case exemplifies, in too many respects for comfort, prevailing professional approaches, both in the Family Division and in the Administrative Court, to a jurisdiction which, to repeat, is only to be resorted to in exceptional circumstances. Practitioners should take heed.

Cited in 5 later judgments