Cutler v Barent London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 31 October 2014 |
| Neutral Citation | [2014] EWHC 4445 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2014/0324 |
| Date | 31 October 2014 |
[2014] EWHC 4445 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Supperstone
Case No: QB/2014/0324
Mr A Grigg (instructed by Steel & Shamash) appeared on behalf of the Appellant
Mr K Bhogal (instructed by Borough Council Legal Services) appeared on behalf of the Respondent
Approved Judgment
This is an appeal by the first defendant, who I shall refer to as the appellant, against the order made by His Honour Judge Mitchell at Central London County Court on 8 May 2014. The learned judge debarred the appellant from defending the claim for possession of her home and proceeded to summary judgment and the making of a 14-day possession order. That order has been stayed pending this appeal.
The judge found the appellant was debarred from defending the claim on the basis of having failed to comply with an "unless order". The judge also found the appellant's oral application for relief from sanctions did not constitute an effective application on account of not being made as a formal application and that he had no discretion in this matter.
The factual background can be stated shortly for the purposes of this appeal. Barnet London Borough Council, the respondent, claimed possession of the appellant's flat at Westbrook Close Barnet EN5 9AU, which had been let to her by the Local Authority in 2003 under a secured tenancy. The tenancy was determined by notice to quit served on 20 December 2012. The claim for possession was brought on the basis of alleged non-occupation by the appellant. The issue was whether or not the appellant had lost security because she had ceased to occupy the property as her only or principal home.
Since 2005, the appellant's mother had lived in the appellant's one-bedroom flat whilst she was awaiting determination by the council of her application for independent permanent accommodation. The appellant and her mother had lived together at the property at times, but she had also over the years lived at her ex-partner's flat. She contended the property had been always been her principal home and that she had always intended to return to it.
The claim was issued on 30 August 2013. The appellant filed a pro forma defence on 23 December. On 31 October 2013, the matter came before Deputy District Judge Shaw. He made an order which allocated the claim to multi track provided that the appellant should file any defence by 28 November and that each party should give disclosure by list by 4 pm on 9 January 2014. The parties were to exchange statements of witness of fact by 4 o'clock on 20 February. The appellant did not give disclosure, and on 20 February the respondent applied both for summary judgment and for an order striking out the defence for non-compliance with directions given by Deputy District Judge Shaw.
The application came before Mr Recorder Chapman on 28 February 2014 who made an order, the material terms of which state as follows:
"The first defendant [that is the appellant] is debarred from defending unless by 4 pm 14 days after the service of this order she files and serves a disclosure list. The aforesaid disclosure list is specifically to include bank statements (or other documents) showing payments made to the second defendant for rent and expenses in the sum of £500 per month during the period of 1 July 2012 to 31 January 2013."
The second defendant is the appellant's mother.
Although the appellant had been granted emergency legal aid on 22 November 2013, her certificate had been cancelled on 25 November. Her solicitors Steel & Shamash were at the time attempting to obtain legal aid for her, but at this stage she was unrepresented and she did not attend the hearing before Mr Recorder Chapman.
However, she was personally with the order of Mr Recorder Chapman on 20 March 2014 and the parties are agreed that the time for complying with the order was by 4 pm on 3 April. At paragraphs 7, 8, 14 and 15 of his judgment in particular, the learned judge dealt with the disclosure that was given by the appellant pursuant to the order of Mr Recorder Chapman. The appellant contended that there had been compliance with the order, at least reasonable compliance in the circumstances, but the judge found that the disclosure was incomplete.
For these reasons, the judge found that the appellant had failed to comply with the order of Mr Recorder Chapman. At paragraph 16 of the judgment, he said:
"It is not part of the current exercise to decide whether or not the first defendant had a good excuse for failing to comply. The issue is solely whether she did comply. She did not comply. The sanction therefore takes effect and she is debarred from defending this claim."
The judge then continued at paragraph 17:
"This hearing has been listed for some time. It is argued by Mr Grigg on behalf of the first defendant that a statement filed by the first defendant solicitor on 2 May amounts to an application for relief from sanction. It is not. An application has to be issued formally under CPR 23. It may be that that statement could stand as evidence in that application, but it cannot constitute an application in itself. I express no view as to whether or not any application for relief from sanction would succeed, but I note that any application for relief has to be made promptly. In the current circumstances, I have no discretion. I am required merely to find whether or not there had been compliance with the order. The first defendant is debarred from defending and I shall proceed to hear the claim of possession."
Earlier in his judgment at paragraph 4, the judge had stated:
"There is no application before me for relief from sanction. It would only be on such an application that I would have a discretion to grant relief, and at that stage there would be a need to investigate the [merits]."
It is plain from the transcript of the hearing and accepted by Ms Bhogal, who appears for the respondent, that during the course of the hearing Mr Grigg, who appeared for the appellant, did make an application for relief from sanction. Plainly, the judge was of the view that because there had been no written application for relief issued formally under CPR 23, he had no power to consider the application and no discretion to grant relief.
Mr Grigg advances six grounds of appeal. He submits that the learned judge erred by, (1) finding that he had no discretion to consider an oral application for relief from sanction; (2) finding that there was no application for relief from sanction; (3) finding that such an application had to be made formally in writing; (4) thereby failing to consider his broad discretion in case management powers under CPR 3.1(2) and Rule 3.3(1); (5) failing to consider the respondent's failure to comply with the mandatory requirement under CPR 3.5.5; and (6) failing to consider the appellant's right to a fair trial under common law and Article 6...
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