Newport City Council v Charles

This application relates to a second appeal for which Pill LJ granted permission on 23 May  2008. The appeal is presently listed for hearing at the Cardiff Civil Justice Centre on Wednesday 16 July 2008. The respondent council seeks in the proceedings possession of a three-bedroomed dwelling house occupied by the appellant. The case raises points which are, as I understand it, acknowledged to be of some importance relating to statutory provisions which concern the security of tenure of council tenants.

The appellant seeks to vacate the hearing date in Cardiff because leading counsel of his choice, Mr Jan Luba QC, will not be available on 16 July. The application is opposed by the respondent. I refused this application on the papers some days ago but it has been renewed through the vehicle of a letter from Mr Luba and I directed it into court before myself and Richards LJ; together with Longmore LJ we shall be the constitution of the Court of Appeal sitting in Cardiff the week after next. By letter of 28 May 2008 from the Civil Appeals Office the appellant’s solicitors were notified of the date and venue for the hearing. The date was first objected to by a letter from the solicitors of 5 June 2008 in which it was stated that the usual liaison with counsel’s clerks had not taken place, as indeed it had not. Mr Luba would be out of the country and he and his junior, who are both publicly funded, have been involved in the case for some time; indeed it is right to say that Mr Beckley, junior counsel for the appellant who has appeared before us this morning, represented the appellant in the court below.

The respondent opposed this application to vacate the date by letter of 13 June on grounds that the property in question was needed urgently by the council and an adjournment was likely to swell the costs. Mr Luba’s letter of 24 June, to which I have referred, forcibly takes the point foreshadowed earlier by his instructing solicitors that because, as he understood it, the case was to be heard in Wales, a date had simply been allocated in contrast to the usual procedure applied in appeals proceeding in London by which the Civil Appeals Office consults as to counsel’s availability. Mr Luba also asserts that the costs which will be charged through public funds will be increased if fresh leading counsel has to be instructed at this stage.

On 25 June 2008 the respondent wrote to the appellant’s solicitors maintaining their opposition to the adjournment. They repeated the claim of urgency. The appellant’s solicitors have also submitted what is called a witness statement though it is really a skeleton argument in support of the application. In essence it repeats the points in Mr Luba’s letter, as Mr Beckley has done before us this morning and done so with economy and some force.

Applications to vacate hearing dates are of course a commonplace. This one is noteworthy perhaps because it concerns the practice of the Court of Appeal when sitting on circuit. This is a relatively recent practice for the Civil Division. It sits on circuit generally, I think, in three centres for one or two separate weeks in each case. There is no suggestion here that notwithstanding Mr Luba’s undoubted qualities, suitable alternative leading counsel would not be available, although Mr Beckley has submitted this morning that there would be prejudice to his client because Mr Luba is an acknowledged expert or specialist in housing law. However it seems to me to be plain that leading counsel could properly and effectively be instructed for the hearing on 16 July. I have to say that for my part I am sceptical as to whether the instruction of new counsel would be more likely to increase the demands on the public purse than would an adjournment. The respondent’s case on urgency stands uncontradicted. Mr Beckley, junior counsel for the appellant, has, as I have said, appeared below. While of course there may in particular cases be countervailing considerations, there is a public interest in this court sitting locally to resolve local appeals. I appreciate the force of the complaint as to the lack of liaison with counsel’s clerks in contrast to the London practice. I fear there may be difficulty because of the small windows of time available in which the court sits at circuit centres. This is not, I think, a consideration sufficient to displace the general justice of the case which in my view favours the Cardiff date being kept; and for all those reasons I for my part would refuse the application to adjourn.

I agree.