R Vincent Nolson v Stevenage Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 19 March 2020 |
| Neutral Citation | [2020] EWCA Civ 379 |
| Date | 19 March 2020 |
| Docket Number | Case No C1/2019/2541/A |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 379
Lord Justice Hickinbottom
Case No C1/2019/2541/A
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ANDREW METZER QC SITTING AS A DEPUTY HIGH COURT JUDGE
Claim No CO/3651/2019
Royal Courts of Justice
Strand, London WC2A 2LL
Hugh Southey QC and Nick Bano (instructed by Duncan Lewis Solicitors) for the Applicant
Matthew Feldman (instructed by Dispute Resolution Law Group, Legal Services, Hertfordshire County Council) for the Respondent
Hearing date: 12 March 2020
Approved Judgment
This application raises an important issue of practice in relation to applications to the court, notably applications for interim relief.
It arises in the context of an application to reopen this appeal, in which Hugh Southey QC leading Nick Bano of Counsel appears for the Applicant and Matthew Feldman of Counsel for the Respondent, all of whom I thank for their helpful submissions. At the hearing of the application on 12 March 2020, I indicated that I would refuse the application, for reasons I would give later. These are those reasons.
In this judicial review, the Applicant Vincent Nolson sought to challenge the decision of the Defendant housing authority (“the Council”) to continue to provide him with interim accommodation under section 188 of the Housing Act 1996 (“the 1996 Act”). In the claim, he applied for interim relief, which was refused by Butcher J. The Applicant applied, purportedly under CPR rule 54.12(3), to have that order reconsidered at an oral hearing. Anthony Metzer QC sitting as a Deputy Judge of the High Court refused that application on the basis that he had no jurisdiction to consider it, holding that rule 54.12(3) did not apply and the appropriate procedural course to challenge the decision to refuse interim relief was to appeal to the Court of Appeal (Civil Division). On 24 October 2019, I refused permission to appeal. The Applicant applied to re-open the appeal.
The factual background is lengthy and complex, but can be shortly stated for the purposes of this application. In November 2016, the Applicant relinquished the tenancy of a property which he rented from the Council to move into his wife's home. On 14 February 2019, he was arrested following an incident at that address, in which he was alleged to have assaulted his wife. The following day, he sought housing assistance from the Council and, following an interview and given his complex support needs, he was accommodated temporarily in a nursing home. However, following the usual procedure, on 8 May 2019, the Council concluded that the Applicant, although eligible for assistance, homeless and in priority need, was intentionally homeless and so not entitled to housing. The Applicant requested a review of that decision under section 202 of the 1996 Act. Prior to the review decision being made, on 7 August 2019 he filed an appeal in the county court under section 204 of the 1996 Act against the intentional homelessness decision.
It is the Council's case that the Applicant did not stay at the nursing home for about a month before his holiday at the end of August 2019; and, on 4 September 2019, he informed the deputy manager of the home that he would not be returning there. Accordingly, on 5 September 2019 the Council wrote to him indicating that it considered it no longer had any duty to provide him with any accommodation.
On 9 September 2019, the Applicant through solicitors requested that he be provided with suitable interim accommodation under section 188 of the 1996 Act pending the review and/or appeal; and, the following day, they sent the Council a letter before claim. The Council through solicitors responded, negatively, on 16 September 2019.
The following day (17 September 2019), the Applicant issued a judicial review of the decision to refuse him further interim accommodation. It was accompanied by an application for interim relief on an urgent basis (“within 4 hours”), which Butcher J refused that same day, on the papers and without a hearing. In doing so, he said this:
“1. The application is one for an interim mandatory injunction that accommodation should be provided. This normally requires the showing of a strong prima facie case ( R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin).
2. I do not consider that a strong prima facie case has been show that the [Council] acted unlawfully…”.
Lawer was a first instance decision of Munby J in an application for a mandatory order for interim relief in a housing case, in which, whilst the judge did express “strong prima facie case” as the correct test, that was not determinative because he concluded that the applicant's entire case had “no reasonable prospect of success”, and was indeed “hopeless” and “devoid of any merit” (see [71]). However, although Lawer is frequently cited as authority for the proposition, it was this court which, expressly disapproving the application of the balance of convenience test for negative interim relief as set out in American Cyanamid Company v Ethicon Limited [1975] AC 396, had earlier established that an interim mandatory injunction requiring a local authority to perform its statutory housing duty would not be granted unless the applicant could show at least a strong prima facie case ( De Falco v Crawley Borough Council [1980] QB 460 at pages 478 and 481, as confirmed in Francis v Royal London Borough of Kensington and Chelsea [2003] EWCA Civ 443; [2003] 1 WLR 2248 at [16], both homelessness cases).
On 24 September 2019, the Applicant applied to the Administrative Court under CPR rule 54.12(3) for an urgent oral hearing to reconsider the decision to refuse interim relief. That application was heard on 3 October 2019 by Anthony Metzer QC sitting as a Deputy High Court Judge who, as I have described, concluded that the court did not have jurisdiction to consider a renewal of the application for interim relief.
The Applicant appealed against that refusal. On 24 October 2019, I refused permission to appeal; and, on 30 October 2019, the Applicant applied for a review of that refusal under CPR rule 52.30. That is the application now before me. However, in substance, it is not only an application to reopen; because, Mr Southey submits, having reopened the appeal, I should give permission to appeal.
To complete the history, the Applicant's appeal pursuant to section 204 was heard in the County Court at Oxford on 6 November 2019. The appeal was allowed, and the decision based on the Applicant's intentional homelessness was quashed; with the result that he was offered (and he accepted) accommodation pending further enquiries into his homelessness application. Thus, interim relief was effectively obtained. Consequently, it is common ground that this appeal, which only concerns interim relief, would now be academic. However, Mr Southey for the Applicant submits that there are nevertheless good grounds for this court both to reopen the appeal and to grant permission to appeal.
There is but one ground of appeal, namely:
“The [Deputy Judge] was wrong to hold that, where the Administrative Court has refused an application for interim relief on the papers, the correct procedure is to appeal to the Court of Appeal. The correct procedure is to renew the application orally in the Administrative Court ( R (MD (Afghanistan)) v Secretary of State for the Home Department [2012] EWCA Civ 194; [2012] 1 WLR 2422 per Stanley Burnton LJ at [19]–[24].”
In other words, the Deputy Judge was wrong to refuse jurisdiction on the oral renewal of the application for interim relief.
In relation to that issue, I have been provided with a transcript of the hearing before the Deputy Judge; and, in respect of jurisdiction, the Applicant (then represented by different Counsel) there relied specifically on CPR rule 54.12(3) together with a submission that the CPR do not anywhere prohibit the reconsideration at an oral hearing...
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