Ian Handley and Another v Lake Jackson Solicitors (A Firm)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Christopher Clarke,Lord Justice Moore-Bick |
| Judgment Date | 24 May 2016 |
| Neutral Citation | [2016] EWCA Civ 465 |
| Date | 24 May 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: B2/2015/3908 B2/2015/2695 |
[2016] EWCA Civ 465
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Mayor's and City of London Court
His Honour Judge Birtles
2YK10673
ON APPEAL FROM Central London County Court
His Honour Judge Bailey
AO1LB0B5
ON APPEAL FROM Oxford County Court
His Honour Judge Tolson QC
A33LU004
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
and
Lord Justice Christopher Clarke
Case Nos: B2/2015/3908
B2/2015/1363
B2/2015/2695
B2/2015/3908
B2/2015/1363
B2/2015/2695
Mark Jackson (In Person) for Lake Jackson Solicitors No Attendance for Sheila Evans & another
David Lintott (instructed by Gowling WLG (UK) LLP) for The London Borough of Croydon
Adrian Berry (instructed by Hansen Palomares) for Vanda Lopes
Jason Raeburn (appearing pro bono) for Isabelle M Awan & another No Attendance for Christie Owen & Davies Ltd
Hearing date: 3 May 2016
Questions have arisen as to the correct destination for an appeal in circumstances where (a) there has been an appeal to the county court which has either been determined by a judgment of the court on its merits or withdrawn; (b) the county court has made, or declined to make, an order for costs in respect of the appeal; and (c) what is sought to be appealed is (or includes) the order in respect of those costs. Such an order may be made at the same time as the judge delivers judgment; or later, either at a further oral hearing or in writing after written submissions. Three cases have been listed before us for consideration where the issue of destination arises.
The three cases
Christie Owen & Davies Ltd v Awan & Awan
In this case Mr and Mrs Awan were the defendants. Two District Judges made orders for the sale of the defendants' family home on 8 August 2011 and 20 December 2013 respectively. These gave effect to final charging orders made on 18 May 2010 and 27 August 2013. The first order had been made by way of execution of a judgment of 4 September 2009 in favour of Christie Owen Davies Ltd, the claimant, under which it recovered its fee as sole selling agent of a care home run by the defendants plus interest and its costs of the action. The second order related to the costs of various orders made against the defendants plus interest. The monies due under the first order for sale have been paid. The property was to stand charged with the claimant's costs assessed at £2,815 and £1,990.08 respectively.
The first order for sale was made without jurisdiction because the amount owing of over £87,000 exceeded the then county court limit: see section 23 (c) of the County Courts Act 1984. The first order was also made on the erroneous basis that the property was not the family home.
On 4 April 2014 the defendants' appeal against those orders was struck out by HHJ Davies for a failure to comply with an unless order of Judge Hildyard QC of 28 March 2014, which had required the defendants to serve on or before 2 April 2004 (i) a document indicating every application Mr Awan had made; (ii) the skeleton argument and bundle used for a hearing on 5 February 2014; and (iii) a chronology in relation and issues taken in relation to [sic] the Civil Restraint Order made, as ordered on that date. The hearing on 5 February had been a hearing attended by Mr Awan but not by anyone for the claimant. The judge heard and granted an application for a stay of the order made on 20 December 2013 (sealed on 8 January 2014) and made provision for a directions hearing on 4 April 2014.
Judge Davies accepted that a skeleton filed by 2 April 2014 more or less complied with (i), albeit late. But, as she held, Mr Awan had made a deliberate choice not to file the skeleton as required. As to the chronology the defendant had failed to produce a chronology limited to events relating to the Civil Restraint Order within the time specified, although he had turned up with one on 5 February 2014. The defendants were ordered to pay the claimant's costs of £4,550.
The defendants appealed against that strike out order. On 15 October 2014 Mitting J allowed their appeal and remitted " the case" to be heard at the Luton County court by any judge other than HHJ Davies. The costs of the appeal to the High Court were ordered to follow the remitted appeal. Mitting J took the view that the failure to provide the skeleton argument was significant because it was the only way of knowing whether Mr Awan had complied with his duty of candour. But the failure to provide the separate CRO chronology was not. The grounds on which Mitting J allowed the appeal were that HH Judge Davies had not approached the case following the guidance given in Denton v TH White Limited [2014] EWCA Civ 906 (not available to her at the time of her decision) and that if she had done so she would have reached a different conclusion.
On 11 June 2015 HHJ Tolson QC heard the defendants' restored appeal. He gave judgment on the matter on 25 June 2015 but reserved the question of costs. He then received written submissions. In his judgment he held that the first order for sale was made without jurisdiction and was an interference with the defendants' rights under Article 8 of the ECHR in respect of their home. The second order was in respect of costs incurred by the claimant in opposing the defendants' attempt to set aside or stay an order for sale which was made without jurisdiction and on the false basis that the property was not the defendants' home; and which the defendants were entitled to have set aside. In addition, since the defendants were entitled to have the first order set aside their indebtedness to the claimant would reduce by £2,815 absent some other costs order. In those circumstances the second order for sale was also to be set aside.
By an order dated 27 July 2015 he allowed the appeals (for which he gave permission) from the orders for sale. He set both orders for sale aside together with the costs orders contained in them. The claimant was ordered to pay the defendants' costs of the appeals summarily assessed at £2,000. There was to be no order for the costs of the appeal before Mitting J; but the order for costs made by HHJ Davies, namely an order that the defendants pay the claimant's costs assessed at £4,550, was to stand. There was to be no order in respect of the costs of obtaining the two orders for sale. The sum of £2,815 paid by the defendants to the claimant pursuant to the first order for sale and the sum of £2,000 was to be set off against the £4,550 costs which had been awarded to the claimant by HH Judge Davies under her order of 4 April 2014. The claimant was to give credit for any balance in favour of the defendants and for the sum of £1,990.08.
The judge's reasons are set out in the order. In essence they were that the hearings before HHJ Davies were caused by failings on the part of the defendants in respect of which the claimant had to come to court to seek relief. There was no justification for altering the costs orders made because they were highly likely to have been made even if the appeals had not been struck out.
On 4 August 2015 the defendants lodged an appeal notice at the High Court for permission to appeal against paragraph 4 of HHJ Tolson's order. The High Court staff refused to accept jurisdiction and transferred the defendants' application to the Court of Appeal.
Lopes v London Borough of Croydon
Ms Lopes, who had moved to the UK in July 2012, applied to Croydon Council as homeless in August 2013. She had been living with the mother of her partner, whom I will describe as her mother-in-law, in Portugal before she moved to the UK. When in the UK she had lived in different temporary accommodation. She was interviewed by officers of the Council on 20 August and 4 September 2013. At both interviews she told them, according to their notes, that her mother-in-law had not asked her to leave. At the second interview she said that her mother-in-law had said that " they needed to find a solution".
On 13 September 2013 the Council issued a decision under section 184 of the Housing Act 1996 holding that she was not homeless as there was accommodation in Portugal which it was reasonable for her to occupy. On 22 September 2013 Ms Lopes wrote to the Council saying that what she had said at interview was that her mother-in-law did not give her an eviction letter because that was not the custom in Portugal but did ask her to leave. She invited a review of the decision because she could not go back to Portugal because " my partner's mummy does not want us there".
On 13 May 2014 the Council issued a section 202 of the Housing Act 1996 review decision upholding the earlier section 184 decision. The decision recorded that the relevant Council officer did not accept what the applicant had said in her letter of 22 September 2013 and said that he was satisfied that the family bond was sufficiently strong to enable her to return to the property.
On 4 June 2014 an appeal was lodged by Ms Lopes against this decision pursuant to section 204 of the Housing Act 1996. The jurisdiction of the court on appeal is limited to errors of law and the scope of the proceedings is equivalent to that of a judicial review. On 26 June 2014 Ms Lopes signed...
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