Right-to-buy claim — Appellant council disputing date of tenant’s notice exercising right — Judicial review claim — Proceedings ordered to continue in Queen’s Bench Division and judgment given for tenant — Costs awarded against appellants — Whether claim could have been brought in county court so as to oust jurisdiction to award costs — Appeal dismissed
The respondent was the personal representative of the estate of the deceased, T, who had been a tenant of the appellant council. T had served notice on the council of his wish to exercise his right to buy the property that he occupied, pursuant to the provisions of Part V of the Leasehold Reform Act 1967. The date of service of the notice, which affected the size of the discount to which T would be entitled on the purchase, was disputed.
The appellants did not respond to T’s attempts to ascertain whether they accepted his assertion as to the correct date. T brought judicial review proceedings in which he complained of maladministration on the part of the appellants in handling his right-to-buy claim and reiterated his contention as to the date of service of the notice. The appellants did not respond and served no acknowledgement of service, and T therefore applied for judgment in default. The judge declined to make such an order. He took the view that it was appropriate for the proceedings to continue in the county court, and ordered the appellants to serve a defence by a specified date. Owing to a lack of availability of county court dates, the judge ordered that the matter should proceed in the Queen’s Bench Division. The effect of that order, made under CPR 54.20, was that the case should continue as though it had been started under CPR 7. At the eventual hearing, judgment was given for T, and the appellants were ordered to pay costs on an indemnity basis.
They appealed against the costs order. They relied upon section 181(3) of the Act, which provided that a claimant was not entitled to recover costs where he or she brought proceedings in the High Court that could, by virtue of the other provisions of section 181, have been brought in the county court. They submitted that: (i) the issue as to the date of service was a question arising under Part V of the Act, within the meaning of section 181(1)(b); (ii) the claim was deemed to have been brought under CPR 7 by virtue of the judge’s order made under CPR 54.20; and (iii) accordingly, it could have been brought in the county court.
Held: The appeal was dismissed.
The appellants’ deeply unattractive argument could succeed only if T had been able to bring his claim in the county court, and that was not the case. The mere fact of a CPR 54.20 order did not necessarily lead to the conclusion that the claim in question could have been brought under CPR 7 in the county court. Under such an order, the proceedings were not deemed to have been brought under CPR 7, but were merely required to continue as though they had been so brought. Moreover, there was insufficient material to say that T’s claim arose solely under Part V; it appeared to be a properly brought judicial review challenge raising wider issues of maladministration by the appellants in addition to the Part V issue.
Kelvin Rutledge (instructed by the legal department of Tower Hamlets London Borough Council) appeared for the appellants; Kevin Gregory of Legal-Action appeared for the respondent as his litigation friend.
Sally Dobson, barrister
