London Borough of Haringey v Simawi

For the Interested Party, Mr Lask submits that there is here no point of public importance. He makes essentially two preliminary points. First, he says that the answer to the point raised in Ground 1 has already been determined by the Court in R (Gangera) -v- Hounslow LBC [2003] HLR 68. Second, although he takes issue with the contention that there are “many” cases awaiting the outcome of this case (he says that the figure is smaller than suggested), in those that are the relevant Court can find the answer in Gangera.

Mr Lask accepts that the amendments to the legislation (set out in paragraphs 7-8) do not apply to theDefendant in this case or his comparator and, as such, do not affect the substance of this Defendant’s case on Art. 14 (insofar as there remains a live dispute between the Defendant and the Claimant).

Nevertheless, he submits, the amendments do undermine the Defendant’s argument that there is a wider public interest in determining Ground 1 even if it becomes academic. His argument is as follows:

Mr Phillips for the Claimant adopts the submissions of the Interested Party.

For the Defendant, Mr Vanhegan submits that the point raised is of public importance and one which has not been decided by Gangera. It is a challenge to the lawfulness of the statutory scheme and would affect several succession cases. He points to the fact that there are other cases in which the point has arisen and that the litigants in those cases are awaiting the outcome of this case. The Court has been provided with a witness statement from Keith Clarke, the Defendant’s solicitor. Mr Clarke says that similar cases in the County Court are being stayed pending the Court’s decision in relation to Ground 1. He says that he has been contacted by those acting in similar cases inquiring as to what stage the current proceedings have reached and when a decision is likely. He exhibits correspondence from solicitors representing litigants who are similarly raising this point in defence of possession proceedings brought against them.

The second point identified by Lord Neuberger MR in Hutcheson [34] is whether the respondent agrees to the case proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced.

Neither the Interested Party nor the Claimant agree that the point should nevertheless be determined (Hutcheson [15]). They are not indemnified as to costs; the Defendant is publicly funded.

Mr Vanhegan accepts these points, but he submits that, on the question of whether the Claimant is “inappropriately prejudiced”, the Court should consider the following factors:

All parties are agreed that, were the point to be argued before the Court, then the argument will be properly ventilated. Even if the Claimant continues to take a neutral position, the issue of incompatibility and the engagement of the Interested Party means that there is no risk of the Court having only one side of the argument properly advanced.

Is there a point of general public importance? Objectively judged, it seems to me to be plain that this is a point of real importance and significance that potentially affects a large number of people. The point is likely to arise in several succession cases under ss.87-88 and for many years to come. This is not some obscure legislative provision that affects only a handful of people each decade.

Beyond the cases identified by Mr Clarke in which the point is being taken, some indication that the point is one of general importance is the fact that it has been the subject of academic commentary. My limited inquiries following the hearing have identified two articles by Professor Ian Loveland: Survivorship and Article 8 of the Human Rights Act [2016] JHL 51 and Second Successions to Secure Tenancies [2012] 76 Conv 453. I invited the parties’ submissions on these two articles.

The 2012 article advances a detailed analysis of what the author considers to be the potential vulnerability of ss.87-88 to a challenge of incompatibility with Articles 8 and 14. The following quotation probably suffices to capture the argument (pp.455-456 – omitting footnote references):

“Sections 87 and 88 of the Housing Act 1985 treat a person who becomes a tenant on the death of her/his spouse or civil partner as a successor to the tenancy. This consequence applies if the partners were joint tenants or if the deceased partner was the sole tenant. However, per Housing Act 1985 s.88(2), a person who becomes the tenant following an assignment by the court consequent on the breakdown of a marriage/civil partnership/cohabitation relationship becomes a tenant de novo unless the other tenant was him/herself a successor.

A person (W1) whose spouse/partner “leaves” her/him because of death is therefore treated less favourably within the ambit of art.8 for succession purposes under the scheme of the Housing Act 1985 than a person (W2) whose spouse/partner “leaves” her/him because of relationship breakdown. The less favourable treatment to W1 arises because W1’s home is no longer a familial asset which will pass as a matter of law on W1’s death either to a qualifying family member or a new spouse. Relatedly, while W2 could assign her de novo tenancy to a qualified potential successor, W1 cannot do so.16

Less (indeed much less) favourable treatment (within the ambit both of art.8 and art.1 of the First Protocol) also extends consequentially to a child (or new spouse/partner/civil partner) who satisfies the succession requirements of the Housing Act 1985 s.87 (and for non-spouses s.113) if her/his parent/new partner was a sole tenant by death than if the parent/new partner was a sole tenant by relationship breakdown. In the latter case, the child/new partner is herself a secure tenant. While she cannot assign the tenancy and cannot pass it by succession on her death, she enjoys the legal right to significant security of tenure, the right to buy, and a rent set at significantly less than those prevailing in the private sector. In the former case, the child new partner has no legal rights at all in her home, save the dubious benefit of being protected against ‘disproportionate’ eviction.”

The article contains no reference to Gangera. Has Professor Loveland overlooked the case? Is it, as Mr Lask submits, the complete answer?

The facts of Gangeraare similar to the present case. The claimant’s parents occupied their home as secure tenants. His father died in December 1995 and his mother became the secure tenant under s.87. The claimant’s mother died in June 2001. The claimant had continued to reside at the property throughout. Following his mother’s death, the Council sought possession of the property on the grounds that he was not entitled to succeed because of the no second succession rule. The claimant contended that the provisions preventing him from succeeding to his mother’s secure tenancy infringed Article 14 read with Article 8 of the Convention. Moses J rejected this argument. He held:

From the underlined sections it appears to me that the Court was not addressing the question that is raised in this case. Moses J found that there was no discrimination; all second-successions were prohibited by the Act. The comparators offered by the claimant in Gangera did not illuminate the point that is advanced in the present case. The point is not that Mr Simawi is being discriminated against when compared to others who face a bar to second-succession under the Act. The basis of the alleged discrimination is articulated by Professor Loveland in the passage I have quoted above (paragraph 33). This point was not considered Gangera. Indeed, s.88(2) was not mentioned in the case at all.

If the Defendant’s case comes to be fully argued at some later point, it will be for the Court at that stage to consider all the arguments including whether Gangera assists in the determination of the point. For present purposes I am satisfied that it is not the “complete answer” that Mr Lask submits. It might be thought that, if it were the complete answer, it is probably unlikely that this case would have got this far.

Are there many cases waiting in the wings? I do not think that Mr Lask’s submission that Mr Clarke has been able to identify relatively few cases in which this point has arisen is very persuasive. I am quite satisfied on the evidence that there are cases pending before County Courts where this issue is raised. I am also satisfied that this is likely to be only part of the real picture. The issue of statutory succession of secure tenancies, as I have already noted, is one that is likely to be in issue in several cases. The facts in this case, and in Gangera, are in no way unusual or atypical. The fact that Mr Clarke has not been able to identify hundreds of cases is likely to be explicable for many reasons.

Subject to Mr Lask’s submissions on legislative changes and the shrinking pool of people for whom determination of Ground 1 could be relevant, I am satisfied that Ground 1 raises a real point of some general importance.

Should the legislative changes that have been made (and those that are still to be brought into force) affect the decision? I am satisfied that I cannot attach much weight to potential changes to the legislation that will occur when the relevant provisions of HPA 2016 come into force. As has been recognised, there is no date for this. Unless and until those changes are enacted, the position as summarised in paragraph 6 above continues to apply to all old STs (i.e. those granted before 1 April 2012). I have no evidence, and it is impossible to ascertain how many old STs there are. What the evidence I have does show is that there are present cases pending determination in which the point has been raised. For the reasons I have given above, I am satisfied that this will not be the full extent of the number of people that it could affect. Taking just this case (and Gangera) as examples, it took 19 years before the point emerged and became material for this Defendant and 12 years in Gangera. Those were secure tenancies granted originally in 1994 and 1989 respectively. Given that Ground 1 arises upon the death of the secure tenant, I am confident that there must be a significant number of old STs still in existence in which the point that is the subject of Ground 1 could become material.

I am satisfied Mr Lask’s “shrinking pool” point does not significantly reduce the number of people that resolution of Ground 1 could affect. As such, I remain of the view that Ground 1 is a point of some general importance.

Turning to the position of the Claimant, it has not consented to Ground 1 being argued even if it becomes ‘academic’. It is not – and cannot be – indemnified as to the costs it will incur. I do not regard this as a point that is determinative. If it were, that would be to give a party an effective veto. There is no justification for such a veto. That would be to adopt precisely the “inflexible approach” to the exercise of the discretion that was made clear in Hutcheson[37] is not appropriate. The principle is that the Court must consider carefully whether the prejudice to the party that does not wish the point to be determined – typically in costs – is justified. The question is whether the objecting party is “inappropriately prejudiced”.

It is important, in my judgment, to have clearly in view that, because of the claim for a declaration of incompatibility and the joinder of the Interested Party, this matter has now gone well beyond the private interests of the two litigants in the claim. It is to be remembered that Hutcheson did not involve a public authority and the point in the case was whether it was a contempt of court for a third-party to publish information that s/he knew was the subject of an injunction that prevented the defendant from publishing. The so-called Spycatcher principle was explained by Lord Neuberger [5]:

“… a party who has notice of an interim injunction is at risk of being in contempt of court if he does something which effectively flouts or undermines the injunction: see, for instance, Attorney General -v- Times Newspapers Ltd [1992] 1 AC 191, 223–224 and see also Attorney General -v- Punch Ltd [2003] 1 AC 1046, 1066. This principle, sometimes known as “the Spycatcher principle” (Attorney General -v- Newspaper Publishing plc [1988] Ch 333, 375 and 380), is well-established. However, Gray J decided in Jockey Club -v- Buffham[2003] QB 462, paras 23–27 that, if and when a final injunction is granted in favour of a claimant, any interim injunction is discharged and replaced by the final injunction, and that a third party, even one who has notice of the final injunction, is not at risk of being in contempt of court if he acts inconsistently with the injunction.”

The Court of Appeal ruled that the challenge to the decision in Buffham had been rendered academic in the instant case. Perhaps encouraging the point to be raised in a subsequent case in which it arose for determination, Lord Neuberger said, in concluding remarks [26]: “… it cannot be safely assumed that the conclusion in [Buffham], that the Spycatcher principle does not apply to final injunctions but only applies to interim injunctions, would be approved by this court”. Although not expressly stated, he may well have drawn some comfort from the fact that, if the point did come up in another case, it would be most likely to arise in the context of a claim brought between well-resourced litigants (as those engaged on media litigation frequently are) for whom there would be no difficulty in pursuing the determination of the point in contrast to indigent litigants dependent upon the availability of public funding, pro bono assistance or their own faltering efforts.

In my judgment, the costs burden that is likely to fall on the Claimant will not lead to it being “inappropriately prejudiced” and that, in all the circumstances, it is a burden that having regard to the other factors it is just for it to bear. My reasons for this are:

When deciding whether it is right to burden the Claimant with its costs of resolving Ground 1, I should consider whether such a course would be in accordance with the overriding objective. CPR Part 1.1(1) indicates that the overriding objective is to “[enable] the court to deal with cases justly and at proportionate cost”. The concept of dealing with cases “justly and at proportionate cost” includes, so far as is practicable (CPR part 1.1(2)):

Under CPR Part 1.4, the Court is required to further the overriding objective by actively managing cases including: “(h) considering whether the likely benefits of taking a particular step justify the cost of taking it; [and] (i) dealing with as many aspects of the case as it can on the same occasion”.

Those rules are directed at the case management of individual cases, but they seem to me to apply with equal force (by way of analogy) on a macro scale. Ground 1 is an issue that could be raised in any – and is being raised in some – possession claims in the County Court. It seems to me that I should assess the costs of resolving Ground 1 in this case against the costs (and the drain on the court’s resources) of resolving the issue in these and future cases. On that measure, the benefits of having Ground 1 resolved clearly justify the costs of it being determined; the economies of scale are obvious. This case is, essentially, a test case. It is dealing with an issue, in one case, that would otherwise be raised potentially in several cases at different time and in different courts. Given that the hearing has been fixed for 2 October 2018, dealing with the issue in this way is expeditious; it might take another 3-4 years for some other litigant to get his/her case to a similar point. When considering the financial position of the parties, I should assume (for the reasons I have given in paragraph 38(ii) above) that the parties who are likely to be affected by the point are likely to have extremely limited resources (or be in receipt of public funding). Resolving Ground 1 in this case is likely, overall, to save expense and very significantly to equal the footing that would otherwise be the case in individual County Court claims for possession. Ground 1 is clearly both important and complex.

These factors point, in my view overwhelmingly, to the Court ordering the resolution of Ground 1 even if it becomes academic in this case. I am quite satisfied these are benefits that clearly justify the, limited, costs burden that will fall on the Claimant.

Having considered all of these factors, I have come to the clear view that I should exercise my discretion to order the determination of Ground 1 even if, subsequently, its resolution in this particular case is rendered academic. I am satisfied that the particular circumstances in this case make it “exceptional”. Directions have been given to progress the determination of this issue at the hearing starting on 2 October 2018.