Ahern v Southern Housing Group Ltd

SIR COLIN RIMER: This is a renewed application for permission to appeal, Patten LJ having refused permission on the papers on 13 May 2015. The applicant is Declan Ahern, the defendant in possession proceedings brought in Brighton County Court by his landlord, Southern Housing Group Limited (“Southern”), a registered provider of social housing. The applicant's proposed appeal is against the forthwith possession order dated 10 March 2015 made by His Honour Judge Simpkiss.

The case is perhaps a little unusual in that it turned upon the lawfulness by reference to public law considerations of the service by Southern of its notice under section 21 of the Housing Act 1988 seeking possession. I am told that the trial before Judge Simpkiss proceeded on the basis of Southern's acceptance that if a breach of its policies was proved in relation to the service of that notice, its possession claim must fail. The proposed appeal is a matter of very great importance to the applicant since I am also told that if he is unable successfully to challenge the possession order, he is likely to become street homeless, a situation the potential awfulness of which will be aggravated for him by his extreme vulnerability in various respects.

There are two grounds of appeal, although they appear to me to be very closely related, as Ms Conlan for the applicant accepts. The first ground is that it was incumbent upon the judge to consider and determine the lawfulness of the service of the section 21 notice at the time it was served, whereas it is said that, whilst the judge said at paragraph 67 of his judgment that Southern was not in breach of any public law duty when it served the notice, he did not elsewhere in his judgment expressly address or apply any reasoned consideration to the point. It is said that in various respects the notice was in fact served otherwise than in accordance with Southern's policies and procedures.

The second, as I say closely related, ground of appeal is that in assessing the lawfulness of the notice, it is said that it was not enough for the judge to consider the rationality of its service. He needed also to, but did not, consider the errors of public law that are said to have vitiated it. In particular, as I have said, it is asserted that it was necessary for him to consider whether its service was in breach of Southern's policies, whereas the judge said, at paragraph 58, that the issue was not whether Southern had failed to comply with the letter of its policies. Ms Conlan's submission is that that is precisely what the issue was and the applicant relies on particular alleged breaches of Southern's policies which it is said the judge failed to consider.

I have no great confidence that an appeal will have a high prospect of success but, with some degree of hesitation, I have decided that the explanation of the two grounds of appeal in Ms Conlan's skeleton argument, in her helpful supplementary statement prepared for the purposes of this hearing and as also succinctly developed by her in her oral submissions, at least gets the proposed appeal over the relatively low bar set by the "real prospect of success" test.

I shall, therefore, give the applicant permission to appeal on both grounds. I shall in consequence stay execution of the possession order in paragraph 2 of Judge Simpkiss’s order dated 10 March 2015, and also the warrant for eviction that I understand has since been issued, until after judgment on the appeal or further order in the meantime. I shall also direct that Southern is to be at liberty, on 48 hours’ prior written notice to the applicant's solicitors, to apply to vary or discharge such stay.