Swindells, R (on the application of) v London Borough of Greenwich

THE DEPUTY JUDGE: This is an application for judicial review made in person by Mrs Da-Christie Swindells against the London Borough of Greenwich, pursuant to leave granted by Holman J on 1 May 2007. The matter has been heard this afternoon because although this case was called on this morning at midday when there was no attendance from the claimant and the matter was proceeded with in the absence of the claimant, it is possible that the claimant may have thought that the case had been marked for a 2 o'clock listing and there was no telephone contact for her on the court file. So I have vacated my earlier judgment and heard the matter de novo this afternoon.

The issue in the case upon which permission was granted was originally whether the London Borough of Greenwich had given sufficient reasons to the claimant for its decision made in 2006 to reject the review requested of a decision to terminate an introductory tenancy on the grounds that the claimant had caused or permitted noise nuisance in her ground floor flat at 8 Woodford House, Barnfield Road, Plumstead.

The learned judge granting permission concluded that the decision letter did not explain the decision with any particularity, and therefore it was an arguable case that there had not been a sufficiently reasoned decision.

As against that, it should be pointed out that, when the possession proceedings had been instituted, the defendant Council had attached to it a schedule of particulars of complaints from neighbouring residents of noise nuisance from 8 Woodford House, beginning on or about 22 September 2005 when she moved in, and continuing with some degree of regularity to 6 July 2006 when the decision was taken, to seek possession. However, the Council have not sat on their hands and relied upon that schedule as being sufficient evidence of the reasons for the decision, but on 17 May 2007 wrote to Mrs Da-Christie Swindells, the claimant, and her son who lives with her, two separate letters inviting them to a hearing at the town hall on 23 May 2007, when the whole matter could be reviewed again. There is in the bundle two letters sent to them at their correct address. There was no response to that letter, and the evidence indicates that neither the claimant nor her son nor anyone acting on their behalf turned up at the hearing on 23 May at 3.15. It has been pointed out that the claimant also did not attend at the first hearing of 9 August 2006 at 2.30, which led to the arguably defective decision letter.

At the second hearing on 23 May 2007, the Panel heard from Mr Payne, the tenancy officer, and from an environmental health officer, Mr Stone, who had received a petition and had served a noise abatement and had himself personally heard the noise from the flat. The documentary material that was before the Panel had been served, I understand, before the hearing, and the matter was reviewed, questions were asked of the witnesses and the Panel concluded that the correct procedure had been followed. They were satisfied by the evidence, and they concluded that the notice seeking possession should be upheld.

All the evidence relating to that hearing was then, I understand, served upon the claimant by the Council at the end of May 2007. It did not elicit any evidential response from the claimant. There then fell the question of preparing a bundle for the court hearing that was listed for 4 September, and I have been referred to correspondence on 21 August, serving a bundle prepared by the defendant Council for the benefit of the court on the claimant. Again, that did not elicit any application or any evidence in response from the claimant.

At the outset of this afternoon's hearing, the claimant sought an adjournment on two grounds. First, she provided to the court a legal aid certificate for representation by the firm Ole Hanson & Partners, who had acted in some of the correspondence in the bundle before the court, but that certificate was dated 29 November 2006. I see that there is a manuscript note attached to it. A copy has been handed to me, saying "received 2 December 2006". So clearly if the claimant had wanted to seek legal assistance to formulate her case and her claim and to be represented before the court today, she has had the chance to do so, but she has not done so and it should proceed and there is no basis for an adjournment on that ground.

The second basis on which she sought an adjournment was that she said that she had not received the letter inviting her to the new hearing in May 2007. The court can only proceed upon the information that is before it, and it certainly seems, for the reasons that I have given, that there were these two letters inviting her to that hearing. That information was then served upon her in May. It was re-served when the court bundle came to be served on 21 August, and that has not elicited a response from her by way of a statement to the effect that this is all news to her and she had never heard about that hearing. Again, I think in those circumstances there is no basis for adjourning this matter on the basis that she did not receive notice of that hearing.

The claimant herself summarised, I think accurately, the essential issue in this case as to whether she has had a fair opportunity to put her case in respect of the allegations that are made against her that have led to the decision to issue the notice of intention to seek possession of the introductory tenancy. It is quite clear that fairness is required in such a procedure, having regard to the fact that the county court itself would have no discretion but to make the possession order if the Council decides to proceed with it. The Parliamentary scheme is that introductory tenancies enable the Council to terminate the tenancy on mandatory grounds within 12 months if there is sufficient cause, and there is a right of review to the Council against the decision in debateable cases.

However, looked at in the round, the allegations against the claimant were known to her even from the decision to seek possession. There was the hearing which she did not attend in 2006. I understand that she suffers from illness, but she did not attend or have anyone to put her case on that occasion. She did not attend for reasons which the court cannot speculate about on 23 May, and she has not, as it were, prepared an evidentially supported case of ignorance of all these matters in order to proceed with this judicial review. In those circumstances, the court is satisfied that there was a fair opportunity, according to the statutory scheme, for her to make her representations upon that issue.

The second way that the case is advanced is that the allegations made against her and the evidence that was relied upon by the Council in support of these allegations are unsustainable in the light of three factors: first, her state of ill-health as testified by her GP's letter which suggests that she would neither have the ability to make a lot of noise-creating activity or the desire to do so; second, that she herself complained of the noise coming from her neighbour upstairs and she thinks that that is the heart of this problem, rather than complaints being made against her; third, she draws attention to an expert report that she commissioned in October 2006, which inspected the premises and did not find any marks upon the ceiling consistent with a hammering or battering that might have explained some of the noise that is being heard; and fourth, she says that, in those circumstances, having regard to the construction of the premises, the evidence of the environmental health officer is inherently improbable.

It seems to me that the difficulty with all those submissions is that they are a matter of fact and evaluation. Not all of them were made to the relevant tribunal who heard the matter. But, in any event, the environmental health officer is an expert witness upon this question, who served an abatement order which has been considered by the Magistrates' Court and on further appeal by the Crown Court without being set aside by those two courts, and has clearly given personal evidence of excessive noise of a very disturbing variety coming from the flat below. That was the evidence before the Panel, and it was what was before the Panel that is the real focus of this case.

In my judgment, taking account, and full account, of all four points which have been urged upon me this afternoon, the Panel were entitled to reach the conclusions which they did on the evidence before them, and that means that the Panel have given a fair hearing. They have considered the issues which they had to consider and they have reached a decision which they were entitled to reach according to law.

I stress that it is not the function of this court to decide the merits of this dispute between the claimant and her neighbours or between the claimant and the Council's officers. It is for the Council's Panel to decide because that is what Parliament has required, and the question is really whether there is any basis for challenge to the Council's decision. The issue is then: has there been (a) a fair hearing?; (b) a fair consideration of the issues in that hearing?; and (c) a sufficiently explained decision of the result of that hearing? That last issue is to be particularly relevant having regard to the grounds on which permission to seek judicial review was sought.

I am satisfied that the answer to all three questions is "yes", and that the decision of the Council has now been sufficiently reasoned. It is for them to decide whether to proceed. They have decided to proceed with the possession, and the matter can now proceed to possession, and this application for judicial review is dismissed. I therefore dismiss this application.

Now, consequential matters?

MR BRIGHTWELL: Yes, the Council does applies for its costs, my Lord. The one thing I have lost in rushing back is the schedule of costs. I do not know whether it was in the papers. I know the claimant has a copy on her table.

THE DEPUTY JUDGE: Right. The Council are seeking costs in the sum of £3,313.50 -- summary assessment of costs. The normal course is that, if you do not succeed in a case, the person who does not succeed should pay the legal costs of the other party. Do you have any observations to make as to the amount of costs?

CLAIMANT: I have no income, my Lord, and I am legally aided.

MR BRIGHTWELL: Could I see the certificate, my Lord?

THE DEPUTY JUDGE: I think I shall make an order, but probably there may need to be the protection, will there not? You do not know what it relates to.

MR BRIGHTWELL: It does say for judicial review.

THE DEPUTY JUDGE: I am going to make an order that the claimant pay the defendant's costs in the sum of £3,313.50 inclusive of VAT within 28 days, but the order not to be enforced without detailed assessment.

MR BRIGHTWELL: I think it is normally without further order of the court, because section 11 of the Access to Justice Act requires an inquiry by the court before allowing --

THE DEPUTY JUDGE: I thought that is what the reference to detailed assessment is. But, okay, without further order of the court, and you have to decide whether you want to move the court having regard to all those issues.

So I have had to make that order for costs. Whether it will be enforced against you is for another day. Thank you very much for your assistance.