R (on the application of Tummond) v Reading County Court

Possession order – Appeal – Judicial review – Landlord seeking possession of property relying on notice served under section 21 of the Housing Act 1988 – Court making possession order and striking out defence – Defendant tenant applying for judicial review of refusal of permission to appeal – Whether exceptional circumstances existing for judicial review – Whether judge erring in law on substantial merits – Application dismissed The claimant entered into an assured shorthold tenancy agreement with the interested party landlord in respect of a property in Loudwater, High Wycombe for an initial fixed term of six months until June 2013. On 18 December 2012, the interested party served the claimant with a notice under section 21 of the Housing Act 1988, notifying him that she required possession at the end of the fixed term. In accordance with the tenancy agreement, the deposit was registered with mydeposits.co.uk. The deposit protection certificate stated that the tenancy commenced on 20 December 2012, that the deposit had been received from the claimant on 22 December 2012 and that the deposit was protected from 2 January 2013. In June 2013, after the fixed term had expired, the interested party commenced proceedings for possession, relying on the section 21 notice. The defendant filed a defence to those proceedings, asserting that the interested party could not rely on the section 21 notice because it had been served at a time when the claimant’s deposit was not held in accordance with an authorised scheme. Accordingly, by operation of section 215(1)(a) of the Housing Act 2004, the interested party could not rely on the notice. A district judge made an order for possession and struck out the defence. An appeal against that decision was dismissed by the county court on the basis that the appeal had no merit. Permission to appeal to the Court of Appeal was refused because no appeal lay against a refusal of permission to appeal. Accordingly the claimant applied for judicial review of the county court’s refusal to grant permission to appeal the order for possession as that was his only remedy. A warrant for possession was stayed pending the determination of the judicial review claim. The claimant contended that the issues raised were not suitable for summary disposal during a permission hearing. The judge’s attempt to deal with them in that forum was a procedural error which denied the claimant a right to a fair hearing. Even if the judge had been permitted to investigate the merits of the legal arguments in detail, his conclusion were wrong in law. Held: The application was dismissed.(1) A judicial review of the county court’s refusal of permission to appeal was only possible in exceptional circumstances. A mere error of law by a circuit judge in the county court would not be sufficient. The possibility was confined to very rare cases on the ground of an excess of jurisdiction or the denial of the right to fair hearing as set out in R (on the application of Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475. In the present case, the claimant could not bring himself within the exceptional circumstances. Since the circuit judge had formed the view that the appeal had no merit, he was justified in disposing of the case at the permission stage. In any event there had been a fair hearing. The claimant had made oral submissions on a short point of statutory interpretation and there was no suggestion that he was not given a proper opportunity to put forward his arguments. Further, an error of law was not a procedural irregularity but a matter of substance. The claimant’s argument had been considered, addressed and rejected with relevant and intelligible reasons being given. If the decision was wrong in law that did not create or involve a procedural irregularity. It was not an irregularity which fell within the exceptional circumstances described in Sivasubramaniam. Even if the circuit judge’s conclusion was obviously wrong and related to a point of law of general importance, it made no difference to the analysis. The attack was on the substantive legal decision rather than matters of procedural irregularity: Gregory v Turner [2003] EWCA Civ 183; [2003] 3 EGLR 129 and R (on the application of Cart) v Upper Tribunal [2011] UKSC 28; [2011] 3 WLR 107 considered. (2) Even if it had been appropriate to consider the substantive merits of the alleged error, it had not been shown that the district judge’s decision was wrong. Chapter 4 in Part 6 of the 2004 Act introduced tenancy deposit schemes for the purpose of safeguarding tenancy deposits paid in connection with assured shorthold tenancies (section 212(1)). It also provided for sanctions for failure to comply with the requirements of such schemes and set up structures to facilitate the resolution of disputes in connection with such deposits. The schemes were either custodial or insurance based. A custodial scheme required a landlord to pay the deposit to a scheme administrator to hold in a designated account until it fell to be paid back to the landlord or tenant. An insurance scheme allowed the landlord to keep the deposit subject to an undertaking to comply with any direction of the administrator. Its return was protected by insurance cover maintained by the scheme administrator for a fee. The scheme used in the present case was an insurance scheme. On the facts of the present case, the deposit could be held in accordance with an authorised scheme before the deposit was protected. The interested party was contractually bound by the tenancy agreement to protect the deposit under an authorised scheme from the moment of its receipt. From that time she was contractually obliged to deal with the deposit in accordance with an authorised scheme, thereby satisfying the requirements of section 213(1) of the 2004 Act. Her obligation so to deal with the deposit meant that from the moment of receipt it was being held in accordance with an authorised scheme. At all times thereafter the money was dealt with in accordance with the scheme requirements. Lindsay Johnson (instructed by Northwood Law Practice) appeared for the claimant; The defendant and the interested party did not appear and were not represented. Eileen O’Grady, barrister