Dumbuya, R (on the application of) v London Borough of Lewisham [2008] EWHC 1852 (Admin)

[2008] EWHC 1852 (Admin)

Case No CO/8280/2006

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 16th July 2008

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE WALKER

Between

THE QUEEN ON THE APPLICATION OF AMINATA DUMBUYAClaimant

Between

LONDON BOROUGH OF LEWISHAMDefendant

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Robert Latham (instructed by Morrison Spowart) appeared for Claimant

Donald Broatch (instructed by London Borough of Lewisham) appeared for Defendant

PRE-JUDGMENT DISCUSSION, JUDGMENT, ARGUMENT AND JUDGMENT ON COSTS AND POST-JUDGMENT DISCUSSION

[1]MR JUSTICE WALKER: Now, Mr Broatch, you have seen the order of Mitting J. Why should I not take the view that for Boxall purposes there is a pretty clear indication there that your client's point is not sound?

[2]MR BROATCH: I think, my Lord, putting it correctly, your Lordship would say that it is at the obvious end of the spectrum, rather than at some doubtful point on the spectrum. It seems to me, my Lord, that there are two points, and it is important not to elide the two. The first point is: does the duty under section 190 re-arise in like manner to how it would arise if a fresh application was made by someone who has become homeless intentionally from outside the authority's accommodation. Does it re-arise when that person intentionally becomes homeless from the very accommodation provided for them under the Part VII scheme. That is section 193(3). In my friend's very helpful bundle, I think section 193 is included at --

[3]MR LATHAM: Tab 1, page 1100.

[4]MR BROATCH: I am obliged. I have different pagination, but it perhaps does not matter for present purposes. It is subsection (6):

"(6) The local... authority shall cease to be subject to the duty under this section..."

Then it will be: (b) becomes homeless intentionally from the accommodation made available for his occupation..." Now, the first legal issue was -- and that was the one principally addressed in my grounds of response, which I feel was rejected by the learned judge who gave permission, but perhaps on a different basis. The authority's submission, which I repeated today in outline, is that the duty under section 190 is not realised when you discharge the duty which you have already accepted because someone is intentionally homeless.

[5]The second question, which, with respect, may have been elided with the first in front of the Mitting J, or on the papers, is: was there a second application? In other words, should the authority have started again when the applicant went round, after the eviction. As I understand it, it is a premise of my friend's case that what happened amounted, in fact and law, to a fresh application. The authority disputes that. Had the matter gone to a full argument, the authority would undoubtedly have filed evidence, including all the notes. I am going from my general experience of homelessness cases, but from the notes that were taken on the occasion when the applicant went round, it seems to be the authority, although it could be proved wrong on detailed analysis of the facts, that the applicant was simply taking up the situation of her having been made homeless again as a result of the eviction and pressing her application for a review of the discharge decision. My friend says by implication she was doing more. That is a question of fact, or the inference is to be drawn from fact, a question which could only be resolved right at the end of a full judicial review.

[6]That deals with those two points. I am trying to be brief and proportionate. In any event, the authority's case is that the application for judicial review was unnecessary and premature because the remedy which an applicant has in the circumstances of this applicant is one which is laid down by statute. Once the review decision has gone against her, she has a statutory right of appeal to the County Court. In fact she exercised that right of appeal, and your Lordship will be well aware that the applicant can then apply to the authority to house her temporarily, pending that appeal. If the authority declines to do so, there is a further statutory form of appeal under section 204(a) of the Housing Act, by which you can go to the same County Court to which you are already appealing and ask the court to review the decision of the authority not to provide temporary accommodation pending the appeal against the review decision.

[7]That was in fact what the applicant did. In the event, the authority agreed with her opinion, agreed to a consent order within the appeal, and the review decision was eventually withdrawn and a fresh one made.

[8]MR JUSTICE WALKER: Did the authority say to her, "Off you go to the County Court and we will give you temporary housing while you do"?

[9]MR BROATCH: No, the review decision carries at its foot -- your Lordship, I cannot find it. The review decision carries at its foot, it must by statute, the advice that the applicant may appeal to the County Court, and must do so within 21 days.

MR JUSTICE WALKER: Yes, it does not say, "Apply to us for housing in the meantime".

[11]MR BROATCH: No, it does not say that, but that is a remedy which an applicant -- I think she had been to the Citizens Advice Bureau for legal advice, but that is advice which she could be given. I have never heard it suggested, with respect, that the authority has a mandatory duty to draw that provision to the appellant's attention. It must draw, first of all, the right of review and, secondly, the right of appeal to the County Court. So in one sense the whole application for judicial review, meritorious or not on the points that my friend raised, was irrelevant. It was pursuing a remedy by way of judicial review when the appellant had another express statutory remedy which she then pursued, in fact quite effectively, because she got what she wanted, a review decision was withdrawn, a fresh review decision was made and in fact the authority accepted that it was not discharged from its duty on the second review decision.

[12]Just to bring your Lordship up to date on the history, the authority has yet again discharged its duty to this lady, but that was on the basis that on 17th March it made her an offer of permanent accommodation, she refused that accommodation, the authority considered that it was suitable accommodation and discharged itself from duty. She has asked a for review of that decision, the result of which is pending.

[13]Both parties -- certainly the applicant has moved on. Life has moved on very considerably in the housing affairs of this lady since October 2006. The authority could be forgiven for thinking that this judicial review was dead because it manifested all the appearance of being dead.

[14]MR JUSTICE WALKER: Yes, the Administrative Court staff make it their business to bring about the coup de grâce, hence the listing of today's hearing. I am very glad you have been able to get here at very short notice.

[15]MR BROATCH: My Lord, if I were to go into the merits in any more detail, I fear that I would be doing the very thing that I said that I should not be. I think I have to accept, as Scott Baker J said in the R (Boxall) v Waltham Forest case, it is up to the court how, to what extent and to what depth it will go into the merits of the argument, bearing in mind the amount of costs involved and proportionality. Were I to go on any further, I suspect I might be in breach of that, unless there is some particular point on which I can assist your Lordship. Broadly, the authority said that this case, and I noted that my friend did not press on with the claim for declaratory relief, which is perhaps one of the reasons why the authority thought it right to instruct me to attend today rather than, perhaps, without in any way being immodest, a more junior member of the bar.

[16]Normally, where the judicial review is dead and it is only a question of costs, they are dealt with by written submissions. We will come to that later, perhaps. I will put down a marker on that point.

[17]MR JUSTICE WALKER: All right. We may come back to that in a moment.

[18]MR BROATCH: Unless there is any other point.

[19]MR JUSTICE WALKER: No. I need not call you in reply. (Judgment)

[20]MR JUSTICE WALKER: The parties agree on the facts which are conveniently set out in paragraph 1 of the claimant's skeleton argument for today:

"(i) On 1st December 2003, the Claimant applied to the Defendant for accommodation pursuant to Part 7 of the Housing Act 1977. She has a son, Allie (dob 3rd March 2004). (ii) On 15th April 2004, the Defendant issued their s.184 decision accepting a full housing duty pursuant to s.193 of the Act to secure accommodation for the occupation of the Claimant. (iii) The Defendant were discharging that duty by securing accommodation at 20 Jordan House, SE4. (iv) The Claimant was evicted from that accommodation on 21st September 2006. On 20th July, the Defendant had obtained a possession order at the Bromley County Court in respect of rent arrears of £582.81. The Claimant was evicted by the court bailiffs pursuant to that order. (v) Prior to her eviction, the Defendant had made no determination as to whether the arrears arose through the wilful default of the Claimant (i.e. whether she had become homeless intentionally). In particular, no written decision had been notified to the Claimant. (vi) On either 21st September ([2.5] of Claim Form) or 22nd September ([9] of Defendant's Summary Grounds), the Claimant applied to the Defendant for accommodation. It is common ground that she was homeless, eligible for housing assistance and in priority need."

[21]The case was the subject of an emergency order by Sullivan J. Following receipt of an acknowledgment of service (including an application to set aside the interim order), the matter was examined on the papers by Mitting J. I should say that Sullivan J's order was dated 10th October 2006. Mitting J granted permission and refused to set aside the interim order. He said this:

"The defendant's contention that this claim is ill-founded in law appears to be, itself, ill-founded. Section 193 (6)(b) provides that a local housing authority shall cease to be subject to a duty under Section 193 if the applicant 'becomes homeless intentionally from the accommodation made available for his occupation'. Section 193(9) provides that 'a person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation'. None of the bars to reapplication considered in the case law (see Arden and Partington Housing Law par.14 - 181) appear to apply. Accordingly, although the defendant's duty under Section 190 is temporally limited, it does apply. I therefore decline to lift the interim order."

[22]What has happened is that the claimant, as was her right, applied to the County Court. When the matter came on before the County Court, the parties were able to reach agreement that there should be a further review. Eventually, that review resulted in an outcome favourable to the claimant. It is not clear to me whether Mitting J's order requiring temporary accommodation was ever formally discharged, but once the outcome of the review was communicated to the claimant, the matter must have proceeded on the basis that the continuation of the interim injunction was no longer necessary. The judicial review proceedings thus went to sleep.

[23]The Administrative Court office notified the parties some time ago that unless an agreed order was submitted the matter would come on for hearing today. It has come on for hearing before me. I have had the benefit of a skeleton argument from Mr Latham on behalf of the claimant, and I have also had the benefit of assistance from Mr Broatch, who has come today, having only been informed by his client at a very late stage of today's hearing.

[24]At one stage it was suggested on behalf of the claimant that the court might today make a declaration of some kind. At the start of today's hearing, Mr Latham disavowed any need for a declaration. His client's submission was that it was appropriate that the defendant should pay the costs, applying the well-known principles in R (Boxall) v Waltham Forest London Borough Council

(2001) 4 CCLR 258

[25]Mr Broatch accepts that the question to be resolved today is whether it is right to make an order for costs, applying the approach of Scott Baker J in that case. He says that the present case is not at the obvious end of the spectrum. He submits that there are two distinct points which arose at the stage when the proceedings were previously before the court. The first was: did the duty under section 190 re-arise when the duty under section 193 had been discharged under subsection (6) of that section? Mr Broatch submitted that Mitting J may have elided that with the second question: was there in fact an application under section 190? The contention for the local authority was that there was no fresh application. In support of that contention, the authority would have filed evidence, including all notes that had been taken by the authority's staff. The stance of the defendant authority would have been that the claimant was doing no more than ask for a reconsideration under section 193.

[26]Mr Broatch made a separate submission that the application for judicial review was premature. I will deal with that shortly.

[27]On the main submission it seems to me that the crunch, if I can put it that way, arose in relation to whether there was a new duty under section 190. Indeed, I note that when one reads section 190 it does not make reference to a need for a specific application. It applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance, but are also satisfied that he became homeless intentionally. No sort of formality is prescribed in the section. It does seem to me that, on the material before him, Mitting J was well entitled to conclude that the case was towards the obvious end of the spectrum, and that is how I read his ruling.

[28]The question of prematurity was put in this way. There is a statutory right of appeal to the County Court. On the form which indicates that the duty was discharged under section 193(6), that is made clear. The legal position is that an applicant can then apply to the authority for temporary accommodation, pending the outcome of that appeal, and the County Court can give interim relief if that is needed.

[29]I said to Mr Broatch, "Is this something that was pointed out to the applicant?" The reply was, "There is no duty on the authority to draw that to the applicant's attention." I am perfectly prepared to assume that there is no such duty, but in circumstances where the council did not say, "We will consider any application from you for temporary accommodation, pending your appeal to the County Court", I do not believe that it can properly be said that this application for judicial review was premature. As I have pointed out, during the period when she was making her application to the County Court and awaiting the eventual settlement that came about, this lady was benefiting from the court's order directing that the matter be dealt with under section 190. In those circumstances, it does seem to me that this case is towards the obvious end of the spectrum, as identified by Scott Baker J in Boxall, and it is right that there should be an order for costs in favour of the claimant.

[30]MR LATHAM: My Lord, I am grateful for that. I do not know whether Mr Broatch wants to take any issue about the costs of today. If he does, I will respond to him.

[31]MR BROATCH: Yes, my Lord. In the light of what happened earlier this morning, when it was indicated that there was no relief being sought apart from costs, it is obvious that this is the sort of case which should have been dealt with by written submissions. Hence it is that I submit that your Lordship's order should be the costs generally, but not for the costs of today, but that the authority, which has been brought here unnecessarily to deal in oral submissions with what could easily have been dealt with very briefly in written submissions, to have its costs for today, which should in turn should be set off against the costs generally in the application, which your Lordship has ordered the authority to pay. I suppose, logically, if we each made written submissions as to costs and your Lordship had decided in the way your Lordship had, those costs would include the costs of the written submissions. So, logically, I should have my costs of today set off against the costs ordered to be paid by the authority, subject to a discount of what would have been a reasonable sum for the authority to be ordered to pay the applicant for written submissions.

MR JUSTICE WALKER: Mr Latham.

[33]MR LATHAM: My Lord, I will take you very briefly through the correspondence. My Lord will see at page 66, on 29th April 2008 my solicitor wrote to Lewisham proposing a consent order, and at page 67A you will see a copy of the consent order. You will see that the live issue is one of costs. There was then a response from Lewisham on 2nd May. It is apparent that they did not look at Mitting J's order; they simply looked at Sullivan J's order.

[34]My Lord, if one then looks at page 69 of the bundle you will see that on 23rd May the Administrative Court notified the parties the matter was listed today for a hearing. My solicitor then wrote on 24th June, pointing out to Lewisham that they had not had regard to the reasoned order of Mitting J, and pointing out that the matter was listed for hearing today on 16th July. That is at page 70.

MR JUSTICE WALKER: That is repeating the costs point.

[36]MR LATHAM: Indeed. My Lord, then, at page 71, late on Monday, there was finally a response from Lewisham, which raised the suggestion, for the first time, that costs could be dealt with on the papers. My solicitor took the step which, in my submission, was fully justified, to send the papers to me. I received them yesterday morning. My solicitor then faxed this to me at 11.00 am yesterday morning. I immediately rang Mr Broatch, who had not been instructed, and, despite the notification on 24th June that this matter was listed today, Lewisham had neither provided any instructions to Mr Broatch or anybody else. My Lord, I took the view then that, given there had been no substantive response and the matter was listed for today, I should do that skeleton argument, which very much recited the approach of Mitting J.

[37]If Mr Broatch had had instructions, and had been available, it may well be we could have agreed to deal with costs on the papers, but in the absence of any counsel to communicate with, and any detailed response from Lewisham, it seemed to my solicitor that since we had the hearing listed, we should come along and make very short submissions.

[38]MR BROATCH: I am sure neither the Borough of Lewisham nor the experienced solicitors who instruct my friend need counsel to advise them whether to make written submissions as to costs or submissions in some other form. It is the norm when a review has not been proceeded with. It was made crystal clear in the authority's letter of 14th July that (inaudible) and the instruction or non-instruction of counsel, I respectfully submit, is irrelevant. That is a decision which almost all practising solicitors would feel themselves entirely competent to make without referring to counsel.

[39]As it happens, I was in court yesterday. I did receive a message on my mobile telephone to call someone, which I got at the lunchtime adjournment. I did manage to call the solicitor who said that he would send some papers down to chambers, but I had another appointment after my court hearing finished. So I did not get back to chambers until early this morning, when I started to work on the case, although I did contact my friend.

[40]I invite your Lordship to look back to your own professional experience, and I am sure that (inaudible) there has to be a hearing for costs or submissions in writing for costs in this court is something which is such a mundane decision that solicitors do not normally need to refer to counsel on that point.

[41]MR JUSTICE WALKER: I would have considerable sympathy with Mr Broatch's submissions in relation to costs were it not for the fact that the first occasion on which his clients suggested the matter could be dealt with by written submissions was Monday this week. By that time there had been a considerable exchange between the parties, making it quite clear that the issue was as to whether or not the defendant should pay the claimant's costs. The claimant's solicitors had also drawn attention to the fact that the court had listed the matter for today. In those circumstances, it does seem to me that it would be unduly harsh for me to criticise the claimant's solicitors for having instructed counsel when they did, and unduly harsh to criticise them and counsel for taking the view that the sensible course was to get it sorted out today. In those circumstances, the order that I have made for costs will include the costs of today.

[42]MR LATHAM: I would like to ask for a CLS assessment of the claimant's costs as well.

MR JUSTICE WALKER: Yes, detailed assessment of the claimant's publicly funded costs.

[44]MR LATHAM: Indeed.

MR JUSTICE WALKER: Yes.

[46]MR LATHAM: My Lord, I am grateful.

[47]MR BROATCH: And, it is implicit in your Lordship's order, detailed assessment in default of agreement.

MR JUSTICE WALKER: Yes, on the standard basis, in default of agreement.

[49]MR BROATCH: I am obliged.