Casey, R (on the application of) v Restormel Borough Council

These are proceedings for judicial review in which the claimant seeks to challenge the exercise by the defendant local authority of its powers and duties under section 202 of the Housing Act 1996.

Mr Christopher Buttler on behalf of the claimant seeks permission. Mr Jon Holbrook on behalf of the defendant seeks the discharge of an ex parte (without notice) mandatory injunction granted by Nelson J out of hours on 27 July 2007.

The claimant is a 19 year old woman. She is pregnant. Her baby is expected in January 2008. She lives with and looks after her 17 year old sister.

Prior to the events giving rise to these proceedings the claimant and her sister were living in privately rented accommodation. They were given notice to quit.

On 16 April 2007 the claimant applied to the defendant for housing assistance. On 13 June 2007 the defendant refused the application on the basis that the claimant had become homeless intentionally within the meaning of section 191 of the Act. That decision was embodied in a letter to the claimant dated 13 June 2007 which if it was sent (something the claimant puts in issue) was not, she says, ever received by her.

On 2 July 2007, according to the claimant, she visited the defendant’s offices and discovered for the first time, when the letter of 13 June 2007 was read out to her, that her application had been refused.

By a letter dated 17 July 2007 the claimant requested a review of the decision. By a letter dated 20 July 2007 the defendant rejected the request, essentially on the ground that the claimant’s request for a review was out of time. The letter also said that “on looking at your file I cannot find any evidence to show that you have any exceptional circumstances that would warrant consideration of a review out of time.”

On 25 July 2007 the claimant’s solicitors sent the defendant a letter before claim. The defendant notified them later the same day by telephone that it would not reconsider its decision.

The defendant had been providing temporary accommodation for the claimant and her sister in accordance with section 188 of the Act. By a letter dated 2 July 2007 the defendant had notified the claimant that that temporary accommodation would come to an end at 10am on 27 July 2007. Thus by the afternoon of 25 July 2007 it was apparent that the claimant and her sister would be made street homeless in two days time.

The claimant filed her application for judicial review on 27 July 2007.

I need not rehearse in detail the scheme of the Act. It suffices for present purpose to draw attention to two provisions. The first relates to the local authority’s duty to review a decision which it has taken in accordance with section 184 of the Act. Section 184(3) of the Act requires the local authority to “notify” the applicant of its decision and, if the decision is adverse to him, to “inform” him of the reasons for its decision. Section 184(6) provides that:

“Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given to him if it is made available at the authority's office for a reasonable period for collection by him or on his behalf.”

Section 202 provides, so far as material for present purposes, that:

“(3)

A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority’s decision or such longer period as the authority may in writing allow.

(4)

On a request being duly made to them, the authority or authorities concerned shall review their decision.”

The second provision relates to the provision of temporary accommodation by the local authority pending the outcome of its decisions. Section 188(1) of the Act provides that, if it has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need within the meaning of section 189, the local authority “shall” secure accommodation for the applicant pending its decision under section 184. Section 188(3) provides that:

“The duty ceases when the authority’s decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).

The authority may continue to secure that accommodation is available for the applicant’s occupation pending a decision on a review.”

The claimant challenges the defendant’s decision of 20 July 2007. She puts her case on two discrete grounds.

First, she submits that the submission of a request for review within 21 days of being notified of the decision under section 184 is a precedent fact to the review jurisdiction. So, in the ultimate analysis, the determination of that precedent fact – ie, the determination of the question as to when, within the meaning of sections 184(3) and 202(3), the applicant was “notified” of the authority’s decision, and thus as to whether the applicant’s request for a review was or was not made within the relevant time – is a matter for the court and not for the local authority. In support of what he calls this fundamental constitutional principle, Mr Buttler referred me to the discussion in Wade & Forsyth Administrative Law (9^th edition, 2004) at pp 256–257 and to such cases as R v Secretary of State for the Home Department ex p Khawaja [1984] AC 74, R (Maiden Outdoor Advertising Ltd) v Lambeth London Borough Council [2003] EWHC 1224 (Admin) and R (Sedarati) v The Mayor and Burgesses of the London Borough of Enfield [2002] EWHC 2423 (Admin). In support of his submissions as to how this principle applies in the circumstances of the present case, Mr Buttler referred to Chiswell v Griffon Land and Estates Ltd [1975] 1 WLR 1181 and to Mustafa Hussein v Secretary of State for the Environment and Hackney London Borough Council [1984] JPL 431.

Secondly, the claimant says that in any event the defendant erred in its approach to the exercise of its discretionary power to extend time under section 202(3). In support of that submission Mr Buttler referred me to R (C) v Lewisham LBC [2003] EWCA Civ 927, [2004] HLR 27. Mr Buttler complained in particular of the fact that in its letter of 20 July 2007 the defendant had said that there were no “exceptional circumstances” – a threshold that according to Mr Buttler is not warranted by the language of section 202(3). So, he says, there was a methodological flaw in the defendant’s exercise of its discretion.

So, says Mr Buttler, the claimant has at least an arguable case, and the balance of injustice favours the grant – and continuation – of an interim injunction, bearing in mind the fact that the claimant is some six months pregnant and has nowhere to sleep other than her car.

The claimant’s Form N461 was filed on 27 July 2007 accompanied by a Form N463 asking that the application for interim relief be considered within 3 days. In fact the application was heard the same day, over the telephone, by the out of hours judge, Nelson J. He made an order that the defendant forthwith provide the claimant with accommodation “until further order of the court” and directed that the order might be varied or revoked on application by the defendant on forty–eight hours notice.

The defendant filed its acknowledgement of service on 29 August 2007 and on the next day, 30 August 2007, gave notice of an application for the discharge of the injunction granted by Nelson J. The application was originally listed for hearing on 20 November 2007. That was, I am told by the Administrative Court Office, the earliest hearing date then available. Not surprisingly the defendant objected to this wholly unacceptable delay and on 5 September 2007 filed its own Form N463 asking that its application be considered within three days. On 26 September 2007 – precisely three weeks later – the application was dealt with as a Table application by Stanley Burnton J, who directed that the defendant’s application to discharge the order made by Nelson J and the claimant’s application for permission be heard on 3 October 2007. It was in accordance with that order that the matter was listed before me on 3 October 2007.

The defendant’s case is set out in the grounds which form part of its acknowledgement of service and in the separate grounds filed in support of its application to discharge the injunction.

So far as concerns the application for judicial review the defendant asserts in answer to the first ground of complaint that the only issue is whether it could rationally have concluded that the claimant’s application for a review was out of time. Mr Holbrook challenges head on the claimant’s analysis of the issue. The question is not, he says, one of precedent fact. The question is one of Wednesbury irrationality. In support of this submission he referred me to R v Secretary of State for the Environment ex p Tower Hamlets London Borough Council [1993] QB 632. In relation to the claimant’s attack on the defendant’s exercise of discretion he pointed to what the Court of Appeal had said in R v Brighton & Hove Council ex p Nacion (1999) 31 HLR 1095. He submitted that this demonstrated the high threshold for impugning the defendant’s exercise of discretion in this context, a threshold that had not, he said, been reached.

So far as concerned the injunction, Mr Holbrook pointed to R v Kensington & Chelsea Royal London Borough Council ex p Hammell [1989] QB 518 as identifying the relevant factors to be considered by the court. He denied that the claimant could show a strong prima facie case and asserted that both the potential balance of injustice and the public interest pointed away from the grant of an injunction.

At the conclusion of the argument I said that I was going to give the claimant permission and that I was prepared to extend the injunction pending the final hearing. I repeat in summary what I said at the time.

Despite everything pressed on me by Mr Holbrook, and not least the practical administrative problems which are likely to ensue if the claimant is indeed right, I was satisfied that there is plainly an arguable case on the precedent fact point. I expressed myself as much more sceptical whether there is any real merit in the argument that the defendant erred in its approach to the exercise of discretion. The criticism of the use by the defendant of the “exceptional circumstances” formula in particular, I might add, faces the difficulty that in R v Camden London Borough Council ex p Mohammed (1998) 30 HLR 315, a decision endorsed by the Court of Appeal in R v Brighton & Hove Council ex p Nacion (1999) 31 HLR 1095, Latham J specifically rejected (at pages 321, 322) a complaint of misdirection by use of the “exceptional reasons” formula. Now in Mohammed the point arose in relation to a local authority’s exercise of its powers under section 188(3), whereas the point arises here in relation to the exercise by the defendant of its powers under section 202(3), but it might be thought that an approach which is permissible in relation to the one is equally permissible in relation to the other. I said that, on balance, I was not going to limit the grant of permission but, having expressed my scepticism about the merit of the point, I endorsed the usual invitation to the claimant to consider carefully whether there really is any merit in it.

With some reluctance, as I made clear, I was prepared in all the circumstances to extend the injunction, but only, as I emphasised, on the basis that the matter was finally resolved in the very near future and in accordance with the very tight timetable I had indicated I was going to impose. Part of my thinking, I should mention, was founded on the fact that because the defendant had decided not to extend the claimant’s time under section 202(3), it had never really addressed the substantive question which would otherwise have arisen for decision under section 188(3). Had it done so, the claimant’s task would have been infinitely more difficult: see R v Brighton & Hove Council ex p Nacion (1999) 31 HLR 1095 and my decision, a few days after this case was before me, in R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin), a case which, as it happens, involved the same local authority.

The order which I made laid down a stringent timetable for the filing of further evidence by both the claimant and the defendant and provided that the final hearing was to be no earlier than 1 November 2007 and no later than 7 November 2007. (It was in the event fixed for 5 November 2007.) I extended the injunction until 4pm the day after the final hearing unless ordered to end earlier. My purpose in making an order in these terms was to ensure that, absent further judicial intervention in the meantime, the injunction would in any event expire through effluxion of time no later than 8 November 2007.

The order also contained provisions requiring the claimant and her witnesses to attend the final hearing in person for cross-examination. It seemed to me that, if the claimant was correct in her contention that the issue of precedent fact was one for determination by the court, the judge conducting the final hearing might take the view that the issue was not one that could be determined in the absence of oral evidence; and I was anxious that further delay should not be occasioned by the need for adjournment if the claimant was not present. I made clear that the order requiring the attendance of the witnesses for cross-examination was entirely without prejudice to the question of whether their evidence was either relevant or admissible, these being matters for the trial judge to determine having heard argument on the question of principle in relation to the precedent fact point.

When this matter was before me on 3 October 2007 I expressed myself in strong terms on the subject of the delay, actual or threatened, to which the defendant had been subjected by the court.

The delay, I said, was simply indefensible. I referred to Magna Carta, expressing the view that the potential delay here amounted to a denial of justice in the sense in which that phrase is used in Magna Carta. My reference was, of course, to Chapter 40 of Magna Carta, which it is to be remembered remains in force as part of Chapter 29 of the Statute of 1297, and which declares that:

“Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam (To no one will we sell, to no one will we deny or delay, right or justice).”

The opportunity for subsequent reflection gives me no reason to moderate my views.

It is no secret that the Administrative Court is having great difficulty coping with its present workload. That is not, I believe, any fault of the judges and it is certainly, I wish to emphasise, no fault of the dedicated and tireless staff in the Administrative Court Office. The volume of paper applications that has to be dealt with necessitates a diversion of judges to deal with Table applications who might otherwise be sitting in court. So there are delays in listing cases for hearing in court. All this has led to public concern. A commentator in the Times (Cragg, Legislative Update, 16 October 2007) comments acidly that “all judicial review cases are meant to be considered quickly,” observing that there is an outside time limit of three months to file a claim for judicial review and continuing: “It is said to be potentially “detrimental to good administration” if public bodies have to wait for months or years to find out if they have been acting unlawfully, but that is what is now happening.”

In the present case the defendant was initially expected to wait until 20 November 2007 – a period of almost three months – for the hearing of an application issued on 30 August 2007 for the discharge of an ex parte injunction. Moreover, the judge who had granted that injunction had specified that the defendant was to be entitled to apply to discharge it on 48 hours notice. The court was not even able to offer a date within 48 days, let alone 48 hours; by my calculation the date offered was 82 days hence. No wonder the defendant was dismayed. This was wholly unacceptable delay, even allowing for the fact that the defendant’s application was not made until a month after the grant of the injunction.

Nor, I regret to say, was this case unique. I have already referred to another case involving the same authority which I heard at about the same time: R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin). In that case an ex parte injunction had been granted on Friday 28 September 2007. The defendant applied on Monday 1 October 2007 to discharge the injunction. The date initially offered for the hearing of that application was 12 November 2007, a delay of 42 days. Only when the defendant was able to demonstrate that the judge had directed that the application was to be heard on or before Friday 5 October 2007 was it actually listed for hearing on that day. In the present case, I was prepared to extend the ex parte injunction until the final hearing. In the other case, I set aside the ex parte injunction on the grounds, first, that the claimant’s case was hopeless and, secondly, because the injunction had been obtained in circumstances where there had been significant non-disclosure by the claimant: see R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin) at paras [70]-[77]. So the actual injustice to the defendant in that case would have been very considerable indeed if it had taken the 42 days originally proposed before the defendant was permitted to expose the lack of merit in the claimant’s case.

It is, in my judgment, a very serious matter indeed if a defendant who has been injuncted ex parte is denied prompt access to the court when he wishes to apply to discharge the injunction. That must be so in any case. But the consequences are all the more serious in cases such as the two I am here considering, where ex parte mandatory injunctions have been granted against public authorities requiring them to spend no doubt substantial sums of public money in providing accommodation or other services to claimants who may or, as in the case of R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin), may not be deserving of public support.

Hard pressed local and other public authorities should not be prejudiced, income tax, corporation tax and council tax payers and rate-payers should not be financially disadvantaged, other more deserving claimants seeking recourse to over-stretched public resources should not be prejudiced, because of delays in the Royal Courts of Justice. It is fashionable nowadays in some circles to decry as no longer relevant anything more than twenty or thirty years old. But there are some principles that ring down the centuries. Magna Carta may be only eight years short of its eight hundredth anniversary, but its message in this respect is timeless. And that message needs to be heeded, not least, it might be thought, in the Administrative Court.

Mr Buttler very properly pointed out that it is not only defendants who are prejudiced by such delays. Claimants, as he rightly points out, are equally prejudiced by delay. The uncertainty and worry that afflicts someone in the claimant’s position as the litigation drags on must be considerable, especially if it drags on into the winter months when she is about to give birth.

This is not the occasion, and it is not in any event for me, to express views as to how these more general problems can best be addressed. But there are a number of points in respect of the procedure in relation to ex parte injunctions which I think I ought to make. I make them against the background of current arrangements in the Administrative Court where, in contrast to both the Queen’s Bench and Chancery Divisions, and indeed the Family Division as well, there is no judge sitting in court daily as the urgent applications judge, and where all urgent applications are initially considered by a judge on the papers as a Table application.

In the first place, there is sometimes scope for declining to make an immediate ex parte injunction on the papers and directing that the application be adjourned into court for hearing by a judge as a matter of urgency, if not the same day (though even that can sometimes be arranged if the matter is really pressing) then at least within a day or two. One can, for example, if presented with a Table application on a Monday, direct that it is to be listed no earlier than Wednesday and no later than Friday, thus giving the defendant time to mount an effective opposition without unduly delaying the claimant whilst at the same time giving the Administrative Court Office some room for flexibility in listing.

Sometimes, of course, this luxury is not available, the case as presented seemingly demanding the immediate grant of ex parte relief. In these circumstances there is much to be said for the view that an ex parte injunction should always be expressly time-limited rather than being expressed as being made until further order.

I do not know what the modern practice is in either the Queen’s Bench Division or the Chancery Division but in my days as a junior in the Bear Garden and the old Chancery Motions Court one of the great differences in practice was that ex parte injunctions were often granted until further order in the Queen’s Bench Division whilst the rigorous practice in the Chancery Division was always to express ex parte injunctions as lasting for a defined – and usually fairly short – time. It seemed to me then, and more mature reflection has not caused me to change my opinion, that the Chancery practice was plainly preferable: not merely was it right in principle but it avoided everyone falling into the trap of thinking that it is for the injuncted defendant to demonstrate that the injunction ought to be discharged when it is surely for the applicant to demonstrate that an injunction granted ex parte should be extended.

Given the current state of business in the Administrative Court it might be thought that there is also a very practical reason why all ex parte injunctions should initially be granted only for a defined and usually fairly short time: this will ensure that the case comes back to court for an inter partes hearing within the period before the injunction expires. So the delays in obtaining inter partes hearings will be minimised.

Any such injunction, even if limited to a short period, should of course provide for liberty to apply on notice.

Be all that as it may, and whether or not an ex parte injunction has been made without expressed limit of time, there is, in my judgment, an absolute obligation on the court to list any application for the discharge of an ex parte injunction for hearing before a judge in court as a matter or urgency – and that, in my judgment, means within a matter of days at most, not weeks and certainly not months. Moreover, if the judge who granted the ex parte injunction has himself specified that the defendant can apply to discharge on (say) forty-eight hours notice, then, if the defendant so requires, that must define the acceptable period of delay. Forty-eight hours may perhaps sometimes have to stretch to seventy-two, unless the defendant can demonstrate real urgency, but no longer. A defendant who, as here, has been given leave by the out of hours judge to apply on forty-eight hours notice should not be required to have to file a Form N463 in order to obtain an urgent listing and certainly should not have to wait, as the defendant here did, for three weeks whilst that application for expedition is being considered and then for a further seven days until the hearing actually takes place.

Moreover, once the matter has come before a judge, careful thought needs to be given to the basis upon which the injunction is to continue, assuming, of course, that that is appropriate. Serious injustice may be caused to a defendant if the injunction is simply continued until judgment, without the judge defining when the final hearing is to be. Ideally, the date of the final hearing ought to be fixed before the judge makes the order extending the injunction, so that the order can both specify the hearing date and define the duration of the injunction by reference to that date. That, however, is not always possible, in which case it may be appropriate for the judge at least to specify either the ‘window’ within which the final hearing is to take place or, at least, the date by which the hearing must take place – and thus to define the duration of the injunction by reference to that date. That, it will be appreciated, is why I made the order I did in the present case.

I hope that no defendant in the Administrative Court is ever again threatened with the delays which it has been my melancholy duty to describe.

I should make it clear that this judgment, although handed down after the final hearing of this matter had taken place, was prepared and sent to the parties, in draft, prior to that hearing.