R Lucy Watkins v Newcastle Upon Tyne County Court

Hearing dates: 2 nd May 2018

Judgment Approved

The applicant lives at [an address], Hendon, Sunderland which is one of a number of dwellings in a building operated as almshouses by the interested party, the Aged Merchant Seamen's Homes (“the Charity”). The applicant has lived there for over 18 months under terms contained in a letter of appointment dated 15 August 2016.

As long ago as 26 January 2017 the Charity served the applicant with a notice to quit alleging that she had been in breach of the terms of the letter of appointment.

The applicant refused to give up possession and the case thereafter proceeded at a depressingly slow pace. The matter was originally listed for trial on 8 September 2017. The applicant applied unsuccessfully for an adjournment on that day but, as it turned out, the case did not, in any event, get on through lack of court time.

The matter was relisted to be heard on 30 October 2017 and the applicant, again, applied unsuccessfully for an adjournment.

The central issues to be tried were as to whether the applicant had been in breach of the terms of the letter and, if so, whether any such breaches were such as to entitle the Charity to seek possession of the flat.

However, the applicant's counsel, Mr Nicholas Grundy QC, in his written opening introduced, for the first time, the argument that the letter of appointment amounted to the granting of a lease and not a licence thereby affording his client an additional ground upon which to resist the claim for a possession order. The Charity objected to the late introduction of this argument because it was unheralded in the pleadings. The parties would appear to have limited their submissions to the issue as to whether the argument should be entertained rather than whether, if entertained, it had substantive merit.

The District Judge then reserved judgment which he thereafter proceeded to hand down on 17 November 2017. On the issue as to whether the applicant occupied the flat under a tenancy or a licence the District Judge proceeded to reviewed the documentary and other evidence and applied the approach laid down in Stewart v Watts [2017] 2 W.L.R. 1107 in which the Court of Appeal gave detailed guidance specifically relevant to cases involving almshouses. His conclusion was that the applicant was a licensee and not a tenant and, having resolved all other issues against her, he made an order for possession.

This prompted counsel for the charity to ventilate her concern that she had assumed that the District Judge had decided not to deal with the substantive merits of the tenancy point and that his reserved judgment on this issue would be dealing only with giving reasons for refusing to deal with it. She invited him to give further reasons.

The District Judge responded to this invitation cryptically. He observed that the matter ought to have been pleaded well in advance and that he had to bear this in mind when applying the overriding objective. One might expect that he would then confirm either that he had determined the issue or he had not. Instead, he said that it “was not appropriate then for that issue to be considered in any detail.”

The applicant then sought permission to appeal. Her application, again articulated by leading counsel on her behalf, was heard by His Honour Judge Kramer on 8 March 2018. He refused permission not on the ground that the District Judge had got the law wrong but because the issue, not having been pleaded in the first place, was not one upon which the applicant could found an argument on appeal. He was critical of the District Judge who he found had muddled the issue.

The date set for the execution of the warrant of possession was 10 April 2018 but, at the eleventh hour, the applicant brought judicial review proceedings against the Newcastle County Court.

The application for permission judicially to review the decision of His Honour Judge Kramer was considered on the papers and refused by Jeremy Baker J on 13 April 2018. He concluded that in order for the applicant to succeed she would have to show that the District Judge's decision on the substantive tenancy issue was wrong. Having read that judgment, he concluded that there were no arguable grounds.

A thread of procedural confusion runs through the procedural history of this matter. It would have been preferable if the District Judge had more clearly articulated that he was intending to consider, and had determined, the substantive merits of the tenancy issue. Having said that, he did say that “in delivering judgment it seemed appropriate to address matters as to whether the defendant is a licensee or a tenant and I have found that she is a licensee and not a tenant.”

His Honour Judge Kramer was understandably concerned that no amendment had been...