Council withholding payment of otherwise approved improvement grant – Council claiming works not executed to their satisfaction – Council applying to strike out respondents’ claim on ground that respondents should have applied for judicial review – Judge refusing to strike out – Council’s appeal dismissed
The respondents, who were landlords of a number of old residential properties, executed substantial works thereon having successfully applied to the appellant council for an improvement grant under and subject to the conditions of section 113 of the Local Government and Housing Act 1989. Presented with claims by the respondents amounting to £90,000, the council withheld payment on the grounds, allowed for by sections 117 and 118 of the Act, that the works had not been completed in time, nor in accordance with the council’s specifications, nor to the council’s satisfaction (section 117(3) (a)). The respondents brought proceedings to recover the amount alleged to be due. The council applied to have the claim struck out on the ground that the claim was essentially a complaint about their exercise as a public body of a discretion to refuse payment, and as such could only be pursued by an application for judicial review. The judge refused the application and the council appealed.
Held The appeal was dismissed.
1. Since the council had given their approval to the grant, the respondents’ claim was for debt due under a statute subject only to such defences as provided for by the statute. The claim was accordingly distinguishable from that considered by the House of Lords in O’Rourke v Camden London Borough [1997] 3 WLR 86 deciding that provisions for homeless persons gave rise to no private rights.
2. The possibility of purely subjective considerations arising in the context of section 17(3)(a) was largely if not wholly theoretical, and the judge was accordingly correct in holding that issues of the kind raised by the council should be determined in the ordinary way on the expert evidence before the court: see per Lord Bridge Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624 at p630. It would be disproportionate to seek a remedy of, for example, mandamus by way of judicial review, a procedure not intended to be used for debt collecting.
Per Lord Woolf MR “This appeal raises yet again issues as to the relationship between public and private law proceedings [and illustrates that] a very substantial volume of the resources of the parties and the courts are still being consumed to little or no purpose over largely tactical issues.”
Ashley Underwood and Lisa Giovannetti (instructed by the solicitor to Sheffield City Council) appeared for the appellant council; Ian McLaren QC and Tony Cranfield (instructed by King & Brook, of Chesterfield) appeared for the respondents.