Terry, Estate of v London Borough of Tower Hamlets

This is a long and tangled tale, but the issue before me today is relatively simple. It is whether two separate applications for permission to appeal, arising out of the same matter, should be heard together as directed by Lloyd LJ on paper on 12 June 2007.

The two substantive applications, the subject of the direction concern the entitlement, if any, of the applicant -- the executor of the estate of Mr Peter Terry (deceased) -- to a right to buy a council flat that Mr Terry had, until his death, rented from the respondent, Tower Hamlets Council; and if so, at what price the applicant, on behalf of the estate, could exercise that right. As to the first issue, Munby J, on 14 March 2006, held that the applicant had no proprietary interest in the flat upon which he could support a right to buy under the right to buy provisions. Accordingly, he dismissed the applicant’s claim for specific reforms, and discharged an injunction earlier obtained by the applicant, restraining the local authority from taking possession of the property. That ruling is the subject of the first application by the applicant for permission to appeal.

The second issue is whether, if the applicant (contrary to Munby J’s ruling) has a right to buy, at what price he can exercise that right. The answer, if it has eventually to be decided, would turn on when a statutory notice, served by Mr Terry before his death, was served. Mr Michael Supperstone QC, sitting as a deputy high court judge, held on 2 and 15 December 2005 that the notice had been served on such a date that it would entitle the applicant, if he had a proprietary interest, to the higher of the two available statutory prices, a decision that the Court of Appeal has upheld.

On 21 April 2006, Lloyd LJ on paper refused the applicant permission to appeal from the decision of Munby J, that the applicant had no proprietary right entitling him to maintain an action on behalf of the estate under the right to buy legislation -- a refusal which, if it stands, would render academic the second issue.

In reliance on Lloyd LJ’s paper decision, Treacy J, on 3 July 2006, discharged a second injunction, obtained by the applicant from Cox J against the local authority, restraining it from disposing of the flat. Treacy J’s discharge of that injunction is the subject of the second application to this court for permission to appeal.

That matter now comes before me, pursuant to CPR 52 16(6a), to reconsider the paper direction of Lloyd LJ -- that the two applications for permission to appeal to this court should be heard and considered together.

On the face of it, there is obvious sense, convenience and economy in both applications being heard together, both for the parties and for the court. If Munby J’s order stands at the application stage, or on appeal if the application were granted, there could be no continuing basis for the second injunction, any more than the first. If Munby J’s decision is vulnerable at either stage, then the validity of Treacy J’s discharge of the second injunction could, and should, fall to be dealt with.

I say, with respect to Mr Gregory, who has valiantly attended today, though sick, to argue the case on behalf of his lay client against joint consideration of these applications, that the various reasons that he has advanced against that course are barely intelligible. They consist in assertions – in letters to the court -- that if the cases are not separated, it could open the charity and possibly the trustees to negligence claims if the appeals fail, because of them being joined. It is said that the joining of the appeals could create an alternative failure of due process, as there are similar issues in both cases which could cause confusion of the issues. It is even suggested that to join the cases would be in breach of natural justice.

Mr Gregory’s oral submissions repeat those concerns. He suggests that these are complicated matters that might engender confusion on the part of the court in considering whether to grant leave in either case. He suggests that it might be an unnecessary waste of money, if the matter were capable of being disposed of on the hearing of the first application in relation to the judgment of Munby J. He suggests that consideration of the second issue on the same occasion could be prejudicial to the court’s determination of the first.

In my view, the obvious course here is that which was directed by Lloyd LJ: two issues, distinct but arising out of the same facts, the second of them turning necessarily on the outcome of the first. There is every good sense in the matters being heard together by way of application for permission to appeal, and a considerable saving to both parties and to the time that they and the court have to put to it.

Accordingly, my direction, and that is what this is, is that the two applications should be heard and considered together; that there should be time, which I will discuss with Mr Gregory but I suggest fourteen days, in which a composite bundle covering both applications is prepared and submitted to the court; and there should be two skeletons (there is already one in being, Mr Gregory tells me, covering the decision of Munby J) and a separate skeleton which I would expect to be quite short, for the reasons I have given, covering the decision of Treacy J; and I would also order expedition.