Thornton v Kirklees Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE ROSKILL |
| Judgment Date | 19 February 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0219-2 |
| Date | 19 February 1979 |
| Court | Court of Appeal (Civil Division) |
[1979] EWCA Civ J0219-2
Lord Justice Megaw
and
Lord Justice Roskill
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On Appeal from Order of His Honour Judge Hurwitz - Huddersfield County Court)
(Revised)
Mr. ROBERT CARNWATH (instructed by Mr. Nicholas Warren, Solicitor, Child Poverty Action Group, London, W.C.2) appeared on behalf of the Appellant (Plaintiff).
Mr. D.B.W. OUSELEY (instructed by Chief Executive, Kirklees Metropolitan District Council) appeared on behalf of the Respondents (Defendants).
This is an appeal against an order made by Judge Hurwitz in the Huddersfield County Court on 19th October, 1978, whereby he ordered that the plaintiff's particulars of claim be struck out as disclosing no reasonable cause of action, and that the plaintiff's action be dismissed. The learned judge granted the plaintiff leave to appeal to this Court.
By his particulars of claim, dated 4th October, 1978, the plaintiff, Mr. Stuart Thornton, sought damages against the defendants, Kirklees Metropolitan District Council, on the basis of an allegation that the defendants, as housing authority, were in breach of a statutory duty which they owed to him, the plaintiff, under the provisions of the Housing (Homeless Persons) Act, 1977. (I shall refer to that Act, for brevity, as "the 1977 Act"). The plaintiff's claim also included a claim for a mandatory injunction ordering the defendant Council to provide accommodation for the plaintiff.
The issue which we have to decide on this appeal is: does a civil action for damages lie for a breach by the defendants of the statutory duty imposed on them by section 3 (4) of the 1977 Act? The defendants, let it be said at once, deny that they have committed any breach of any duty owed to the plaintiff under section 3 (4) of the 1977 Act. But for the purposes of this appeal, because it arises out of an order to strike out the particulars of claim as disclosing no cause of action, it is to be assumed, hypothetically, that all allegations of fact as pleaded on behalf of the plaintiff are true: that is, the facts as pleaded when the matter came before the court which decided to strike out. If the appeal succeeds, and the action thus goes back to the County Court, it will be open to the defendants to challenge any or all of the facts alleged by the plaintiff. But, hypothetically, for the purposeof the appeal they are to be assumed to be the facts.
The reason why Judge Hurwitz struck out the particulars of claim and dismissed the action was that, in his judgment, no action lay against the defendants for damages for any breach which they might have committed of that statutory duty under section 3 (4) of the 1977 Act. Thus, the cause of action pleaded was not within the jurisdiction of the County Court. For this purpose an action based on an allegation of a breach of a statutory duty, with an allegation that damage has been caused thereby to the plaintiff, can, the plaintiff asserts, be treated as being an action for tort for the purpose of section 39 of the County Courts Act, 1959. The defendants do not assert the contrary. Thus, such an action, if it lies at all, would be within the jurisdiction of the County Court.
The plaintiff, as I have already mentioned, by his particulars of claim claimed not merely damage for distress and inconvenience as a consequence of the defendants' breach of statutory duty, but also a mandatory injunction ordering the defendants to provide accommodation for the plaintiff.
So far as the claim for the injunction is concerned, this would not he within the jurisdiction of the County Court, by reason of section 74 of the County Courts Act, unless the claim for damages for breach of statutory duty (treated as being a claim in tort) were a cause of action which itself is within the County Court's jurisdiction.
The defendants say that a breach of a statutory duty imposed by section 3 (4) of the 1977 Act, whatever other remedy the plaintiff may have, does not give rise to a cause of action for damages. The judge accepted that submission. Hence his order striking out the particulars of claim. He struck it out under the provisions of Order 13 Rule 6 (1) (a) of the County Court Rules, 1936, asdisclosing no reasonable cause of action. For the plaintiff it is said that the judge was wrong: that there is a cause of action for damages as a result of the alleged, and assumed, breach of statutory duty.
Before I come to the facts and the arguments of law, there is one further matter which I should mention, in order that there may, I hope, be no misunderstanding as to the effect of cur decision on this appeal. Commonly, when there is an appeal to this Court against the striking out of a claim, all that this Court is concerned to do is to decide whether or not there is an arguable case. But, sensibly as I believe, both parties invited us to approach this appeal on the basis that we should give a decision as to the issue of law involved: not whether the plaintiff would have merely an arguable case in law if he were to establish the pleaded facts, but whether he would, on that hypothesis, be positively entitled to succeed. If the answer be "no", that is, so far as this Court is concerned, the end of the matter. If the answer is "yes", then the case goes back to the County Court for relevant issues of fact to be decided: so that if all relevant issues of fact were to be decided in the plaintiff's favour, the judge would then apply the law as stated by us, would hold that the court had jurisdiction, and would decide the case accordingly.
I come to the 1977 Act, so far as its provisions may be relevant in this appeal, and, by reference to those provisions, I shall state as I go along the facts that we are to assume for the purposes of this appeal in relation to those provisions.
The opening words of the preamble to the Act are: "An Act to make further provision as to the functions of local authorities with respect to persons who are homeless or threatened with home-lessness".
The 1977 Act, for this and related purposes, replaces theprovisions as to the duties and powers of local authorities under the National Assistance Act, 1948, of which section 21 was primarily relevant.
Section 1 of the 1977 Act defines "homeless persons". For the purpose of this appeal it is to he assumed that the plaintiff is a homeless person within that definition.
Section 2 is concerned with what is called "priority need for accommodation". For the purpose of this appeal it is to toe assumed that the plaintiff has a priority need for accommodation within that section, because it is to be assumed that he is within the class of persons covered by sub-section (1) (c) of that section. That is, he "is vulnerable as a result of…mental illness or handicap…."
Section 3 deals with what are called "preliminary duties of housing authorities in cases of possible homelessness, etc." Subsection (1) provides that "If (a) a person applies to a housing authority for accommodation or for assistance in obtaining accommodation, and (b) the authority have reason to believe that he may be homeless or threatened with homelessness, the authority shall make the appropriate inquiries".
It is to be assumed for the purpose of this appeal that the plaintiff applied to the defendants, being a housing authority for the purposes of the 1977 Act, on a date before 4th October, 1978, for accommodation or for assistance in obtaining accommodation. The defendants, fairly and sensibly, in order to enable this appeal to be determined, are content that, for the same purpose and with the same limitation as the other assumptions related to facts pleaded, it should be assumed (though they will be free, if necessary, in due course to dispute the assumption) that they, the defendants, as the housing authority, had "reason to believe" as in sub-paragraph (b). This fact was not specifically pleaded in theparticulars of claim before the learned judge.
Section 3 (2) defines "appropriate inquiries".
Section 3 (4) sets out the statutory duty which is relevant to the issue with which we are concerned. It reads: "(4) If the authority have reason to believe that the person who applied to them may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending any decision which they may make as a result of their inquiries (irrespective of any local connection he may have with the area of another housing authority)".
The remaining provisions of the Act are not directly relevant to the issue before us. But counsel submitted that they could usefully be considered as background. Indeed, counsel for the defendants submitted that one ought to look at all the statutory duties prescribed by the 1977 Act for the purpose of, as it were, categorising the nature of the statutory duty as a whole which is contemplated by the Act.
Section 4 provides, by sub-section (1), that if a housing authority are satisfied, as a result of inquiries under section 3, that an applicant to them is homeless "they shall be subject to a duty towards him under this section". By sub-section (2), where they are not satisfied that he has a priority need "their duty is to furnish him with advice and appropriate assistance". The latter phrase is defined in section 19 (1). The definition is based on a subjective assessment: "…such assistance as a housing authority consider it appropriate in the circumstances to give him…."
Sub-section (5) of section 4 provides for cases where the housing authority to whom the application is made are satisfied that the applicant is homeless and that he has a priority need: their duty is then laid down as being to "secure that accommodation becomes available for his...
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O'Rourke v Camden London Borough Council
...the premise must be wrong and that the plaintiff has no private law action for breach of duty at all. It follows that in my view Thornton v. Kirklees M.B.C. [1979] Q.B. 626, which held that he did have such a cause of action, was wrongly decided. Mr. Drabble Q.C. did not attempt to support......
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M and Another v London Borough of Newham and Others; X and Others v Bedfordshire County Council
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De Falco v Crawley Borough Council; Silvestri v Crawley Borough Council
...provide accommodation as required by section 3(4), the applicant can claim damages in the County Court: see Thornton v. Kirkless (1979) 3 Weekly Law Reports 1. I am very ready to follow that decision and indeed to carry it further: because this is a statute which is passed for the protectio......