Local authority – Duty to provide accommodation – Possession – Claimant bringing proceedings for judicial review against first defendant local authority to prevent order for possession until second defendant local authority discharged housing duty – Whether second defendants should be permitted to defend claim out of time and apply to revoke order against them – Whether existence of alternative remedy meaning claim against first defendants should be dismissed – Whether application for possession order being disproportionate, irrational and unlawful interference with claimant’s rights – Application dismissed
The claimant was a 72 year old single man with a constellation of special medical and social needs including Asperger’s syndrome and had mobility problems. He occupied a large sound-proofed motor home and a collection of other vehicles which he had placed on land owned by the first defendant local authority. The claimant was a trespasser and the first defendants wished to sell the land. The second defendant local authority accepted a housing duty towards him and the claimant was granted a mandatory order requiring them to discharge their housing duty. The second defendants made the claimant a formal offer of accommodation it considered to be suitable for his needs. Despite this, the claimant remained living on the first defendants’ land. The claimant applied for judicial review to prevent the first defendants obtaining an order for possession until the second defendants provided him with housing which suited his needs. The second defendants applied for permission to contest the claim out of time and seek revocation of the mandatory order made against them.
The principal matters to resolve were: (i) whether the second defendants should be granted permission to contest the claim out of time and to seek revocation of the mandatory order made against it; and (ii) whether the claimant’s challenge to the first defendants’ continuing decision to seek an order for possession should be dismissed because there was an alternative remedy, namely, a statutory review or appeal to the county court against the second defendants’ view that its housing duty had been discharged; and (iii) whether pursuing a possession order in the county court was a disproportionate, irrational and unlawful interference with the claimant’s rights.
Held: The application was dismissed.
(1) It was plain that the second defendants could not satisfy the predicate requirements of CPR 39.3, namely, whether a prompt application to set aside had been made, whether the party seeking the set aside had a good reason for failing to attend and whether he had a reasonable prospect of success in the action. This was not a prompt application to set aside the mandatory order and there was no good explanation for the lateness of defence to the claimant’s claim, especially when the second defendants had conceded it earlier in the proceedings. Furthermore, the prospects of success in the claim were negligible in that the second defendants conceded that it had a housing duty to the claimant and claimed that it had already, or at least had tried already, to discharge that duty. It was also plain that the second defendants could not fully satisfy either stage 1 “significant breach” or stage 2 “good reason” of the test set out in Denton v TH White Ltd [2014] EWCA Civ 906. In all the circumstances, justice did not require the grant of any of the applications made by the second defendants. However, the second defendants’ proposed contest to the claimant’s claim was academic. They had discharged their duty by making an offer of a property which it considered suitable. If on review or on appeal it was found not to have offered such a property, the duty might revive. At present, the second defendants had satisfied the mandatory order. Accordingly, relief from sanction and the application to set aside the mandatory order would be refused.
(2) Judicial review was a last resort and alternative remedies had to be considered and exhausted if they would be adequate to resolve the complaint. It was undesirable to have parallel proceedings. However, the jurisdiction of the High Court was not ousted by the existence of an alternative remedy. The fact that the claim had been made against the second defendants at the same time as the first defendants and the claimant had applied for a mandatory order against the second defendants as a pre-requisite for the court allowing the first defendants to proceed with their possession action made it convenient for the same court to hear both claims and explained why the claimant had been granted permission to bring his claim. In the circumstances of this unusual case, it would be unnecessarily duplicative of court time and resources to remit the case to the county court after the present court had heard full argument.
(3) The action to seek recovery of possession of the land occupied by the claimant as a trespasser for over three years was proportionate and the first defendants were not in breach of their public law duties or the or the claimant’s convention rights by pursuing their possession order now. There was no irrationality identifiable in the approach taken by the first defendants. In all the circumstances, it could not be said that the claimant had acted reasonably in entering and remaining on the land. He had always been aware of the risk of eviction and had the benefit of an offer of housing from the second defendants and might pursue a statutory route to appeal against a confirmation of the discharge of their housing duty if he still rejected the offer of accommodation. Those were matters properly dealt with by the county court which would also have before it the first defendants’ application for possession and would be able to make appropriate orders in the light of the situation then existing: Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113 and Thurrock Borough Council v West [2012] EWCA Civ 1435; [2012] PLSCS 241 applied.
Alex Offer (instructed by Community Law Partnership) appeared for the claimant; Andrew Byass (instructed by Somerset County Council) appeared for the first defendants; Emily Orme (instructed by Taunton Dean Borough Council) appeared for the second defendants.
Eileen O’Grady, barrister
Click here to read transcript:R (on the application of Plant) v Somerset County Council and another