Housing


Behaviour - family home - intentional homelessness - occupation - reasonableness - relationship breakdown

Denton v Southwark London Borough Council: CA (Civ Div) (Lords Justice Mummery and Dyson, Lady Justice Arden):

4 July 2007

The appellant local authority appealed against a decision that it had been wrong to find that the respondent (D) was intentionally homeless.



D had lived with his disabled mother until he was 20 years of age. His mother had then asked him to leave her home because he had behaved badly and she could no longer control him. D then lived briefly with his sister but she likewise asked him to leave after ten months.



He asked the local authority to house him but the local authority took the view that he had become homeless intentionally within section 191 of the Housing Act 1996 because it would have been reasonable for D to continue to occupy the accommodation that had previously been provided by his mother, since she would have been willing to continue to provide a home for him if his bad behaviour had ceased. On appeal the judge had quashed the local authority's decision, holding that it had not taken into account the relationship between mother and son, and the possibility that it had already broken down.



Held, to determine whether a person was within the statutory definition of intentional homelessness, all the circumstances of the case had to be considered. One of those circumstances was the fact that the previous home was a family home. There were significant differences between the family home and rented accommodation. Nonetheless, people living together had to show each other appropriate respect and that necessarily involved complying with any reasonable requests that one person made to another. In the present case, D's mother reasonably expected him to behave so as not to cause a nuisance to her or others and he did not do so. The cause of his being asked to leave was his bad behaviour; the local authority was satisfied that the mother's requests were reasonable. She was not laying down inappropriate rules. The judge had misunderstood her position. She was willing to have D back if he behaved.



Moreover, the judge had conflated the two requirements of causation and reasonableness to occupy. Those were separate considerations. There was no need to allocate responsibility for reasonableness to occupy. The judge had erred in considering whether the misbehaviour was a causal factor in relation to the reasonableness of continued occupation; reasonableness was to be determined by asking whether it would have been reasonable for the applicant to continue to occupy the accommodation at a point in time before the deliberate acts that led to the loss of the accommodation took place, R v Hammersmith and Fulham LBC ex parte P [1990] 22 HLR 21 approved. The local housing authority had to determine whether it was reasonable for the applicant to continue to occupy premises ignoring the acts or omissions for which the applicant was responsible. So D's misbehaviour had to be left out of the reckoning; a local authority had to make appropriate enquiries when it received an application for accommodation. However, the court would not hold that it should have made further enquiries unless it was unreasonable in the sense of being perverse or irrational for it not to make further enquiries, Cramp v Hastings BC [2005] EWCA Civ 1005, [2005] 4 All ER 1014 applied. Any failure in the instant case by the local authority to make further enquiries into the mother's disability and the relationship between D and his mother did not have the effect of rendering its decision on intentional homelessness open to challenge on public law principles.



Appeal allowed.



Nicholas Grundy (instructed by the local authority solicitor) for the appellant; Sean Pettit (instructed by AP Law) for the respondent.





Civil Procedure



Enforcement - extraterritoriality - recognition of judgments - undertakings - jurisdiction to make worldwide freezing order in aid of foreign judgment

Banco Nacional de Comercio de Exterior SNC (Appellant) v Empresa de Telecommunicaciones de Cuba SA (Respondent) & British Telecommunications plc (Intervener): CA (Civ Div) (Lord Chief Justice Philips, Lords Justice Tuckey, Jacob): 4 July 2007
The appellant (E) appealed against a decision ([2006] EWHC 19 (Comm), [2007] ILPR 16) that the High Court had jurisdiction to grant a worldwide freezing order following registration of a foreign judgment under Regulation 44/2001, and the intervener (BT) appealed against the judge's refusal to vary a domestic freezing order.



The respondent Mexican bank (B) had obtained a judgment in Turin against E, a state-controlled Cuban telecommunications company. The judgment had been registered in the UK and B obtained a domestic freezing order directed at amounts which would become payable to E for the use of its network under roaming agreements with UK telecommunications companies, including BT. On the basis that the order was a post-judgment freezing order, the judge omitted the usual undertaking by the applicant to compensate third parties for loss caused by complying with the order.



E claimed to have assigned the amounts due to it to another Cuban state-controlled company. B then successfully applied for a worldwide freezing order on the basis that E was attempting to dissipate its worldwide assets to avoid enforcement. The worldwide order contained the usual undertaking in respect of third-party loss, which had been omitted from the domestic order. B sought to vary the worldwide order to delete the undertaking about third-party loss. BT sought to enlarge the domestic order to include the undertaking. E applied to discharge the worldwide order.



The judge held that he had jurisdiction to make the worldwide order but refused to delete the undertaking and refused to vary the domestic order. E and BT appealed and B sought permission to appeal. E submitted that article 47(1) of the regulation did not extend to making a worldwide freezing order since the purpose of registration was to enforce the judgment against E's assets in England, and worldwide relief would extend to assets which would not be the subject of enforcement within the jurisdiction. B submitted that the court had an alternative jurisdiction to make the worldwide order under section 25(1) of the Civil Jurisdiction and Judgments Act 1982 as amended. B further submitted that articles 47(2) and 47(3) gave a judgment creditor an unqualified right to protective measures and that by requiring an applicant for a freezing order to give an undertaking the court was impermissibly qualifying that right, and that a post-judgment freezing order should not be subject to the same restrictions as a pre-judgment order.



Held, article 47(1) did not permit the court to grant a worldwide freezing order even if a judgment had not been registered. All parts of article 47 were directed at enforcement. Article 47(1) was simply dealing with the position before a declaration of enforceability or registration had taken place. All it was saying was that, if the applicant was able to show that he had a judgment which must be recognised, he was not prevented from availing himself of protective measures before the formalities of registration had been completed; the principles applicable under section 25 of the 1982 Act made it inexpedient to grant B a worldwide freezing order, Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818 and Van Uden Maritime BV (t/a Van Uden Africa Line) v Kommanditgesellschaft in Firma Deco-Line (C391/95) [1999] QB 1225 applied.



E was not resident in England. Any assets in England were protected by the domestic order. The worldwide order was directed only at assets outside the jurisdiction. There was therefore no connecting link between the subject matter of the measure sought and the territorial jurisdiction of the court. Further, it was not the policy of the Italian court to grant worldwide freezing orders, and given the multiplicity of enforcement proceedings in other jurisdictions, there was a danger that an English worldwide freezing order would give rise to disharmony or confusion and/or risk conflicting, inconsistent or overlapping orders in other jurisdictions, Motorola Credit Corp v Uzan (No6) [2003] EWCA Civ 752, [2004] 1 WLR 113 applied. Therefore, the worldwide freezing order was discharged and B's application for permission to appeal was rendered academic; the giving of judgment was unlikely to affect any loss caused to third parties from the fact that the judgment debtor's assets had been frozen. The need for the undertaking therefore did not change and there was no good reason for distinguishing between the situation before and after judgment; the regulation confined itself to laying down the principle that the party who had a declaration of enforceability or had registered a judgment could proceed with protective measures.



Matters not covered by specific provisions were left to the procedural law of the court hearing the proceedings. An applicant for such measures had to take them as he found them in the jurisdiction where he sought to enforce his judgment, Capelloni and Aquilini v Pelkmans (119/84) [1985] ECR 3147 and Calzaturificio Brennero SAS v Wendel GmbH Schuhproduktion International (C258/83) [1984] ECR 3971 considered. Therefore the domestic freezing order was varied to include the undertaking.



Appeals allowed.



Mark Cran QC, Andrew Thomas (instructed by Travers Smith) for the appellant; Jeffery Onions QC (instructed by Freshfields Bruckhaus Deringer) for the respondent; Graham Read QC, Diya Sen Gupta (instructed by the in-house solicitor) for the intervener.





Administration of Justice



Bias - judges - recusal - solicitors - personal animosity - evidence of apparent bias

Howell & ors v Lees-Millaisca: (Civ Div) (Master of the Rolls Sir Anthony Clarke, Sir Igor Judge (President QB), Lord Buxton): 4 July 2007
The appellant (H) appealed against a decision refusing an application for the judge to recuse himself in proceedings between H and the respondents (L).



L had made a Beddoe application in relation to a trust of which H, who was a partner in a firm of solicitors, was a trustee. L had made it clear that they would be seeking an order that the trustees would be personally liable for all the costs of the action. H applied for the judge to recuse himself on the basis that he had had personal dealings with another partner in his firm. The judge's dealings had involved unsuccessful discussions about him joining the firm that had taken place one month before the hearing of the recusal application. Emails had been sent between the judge and the partner, culminating with the judge stating that he was not impressed with the firm. The judge ordered that the material be kept confidential and not shown to the parties without his agreement, and a schedule of confidential facts and emails was prepared.



At the hearing, the partner involved in the discussions gave evidence of the truth of the schedule and the judge questioned him at length. The judge ruled that the passage of time between his discussions and the hearing was of no relevance and he refused to recuse himself. H contended that the judge should have recused himself because there was a real danger of bias if he heard the Beddoe application. H submitted that the judge was plainly wrong to have cross-examined a witness on evidence that nobody had seen.



Held, the judge's attitude throughout the emails between him and the partner, and his judgment showed that the test for apparent bias was satisfied, Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 applied. It was clear that a fair-minded and informed observer would have formed the view that there was a real danger that the judge was biased and accordingly the judge should have recused himself. While the mere fact that a judge had found a case adverse to a party was rarely a ground for recusal, there could be real bias if there was a personal friendship or animosity. The passage of time between the event relied on and the hearing was relevant and the judge had been wrong to rule to the contrary. The exchanges between the judge and the partner were quite extraordinary. It was clear that the judge was giving evidence. It was one thing to test the evidence but a judge should not give evidence of fact. It was not appropriate for the judge to have cross-examined the partner as if he, the judge, was fighting his own case. At most, the judge should make a short statement of his position on the record. It had been entirely inappropriate to cross-examine the partner. The judge's conduct of the hearing underlined the fact that he had become too involved in matters to be necessarily objective in the proceedings.



Appeal allowed



Charles Flint QC, Tom Weisselberg (instructed by Addleshaw Goddard) for the appellant; Nicholas Le Poidevin for the first respondent; Alan Steinfield QC, John Stephens for the second respondent.





Mental Health



Civil proceedings - mental patients - nullity - permission to issue - proportionality - right of access to court

Robert Edward Seal v Chief Constable of South Wales: HL (Lords Bingham of Cornhill, Carswell, Woolf, Brown of Eaton-under-Heywood and Baroness Hale of Richmond): 4 July 2007
The appellant (S) appealed against a ruling ([2005] EWCA Civ 586, [2005] 1 WLR 3183 ) upholding a decision to dismiss his action against the respondent chief constable.



After an incident at S's mother's house, the police removed him to a place of safety under section 136(1) of the Mental Health Act 1983. He was detained for just over a week. On the eve of the expiry of the limitation period, S, acting in person, issued proceedings in the county court against the chief constable. The district judge dismissed the action on the ground that S had issued it without obtaining the leave of the High Court in breach of section 139(2) of the Act. S argued that the lack of leave, even when required, was an irregularity which could be rectified, not a fatal flaw which invalidated the proceedings; the effect of section 139(2) was to infringe his right of access to the court contrary to article 6 of the European Convention on Human Rights.



Held (Baroness Hale and Lord Woolf dissenting), the important question was whether, in requiring a particular condition to be satisfied before proceedings were brought, Parliament intended to confer a substantial protection on the putative defendant, such as to invalidate proceedings brought without meeting the condition, or to impose a procedural requirement giving rights to the defendant if a claimant should fail to comply with the requirement, but not nullifying the proceedings. To answer that question, a broad inquiry looking at the legislative history, case law and academic opinion, was called for. When Parliament legislated in 1982-1983, there had been a clear consensus of judicial, professional and academic opinion that lack of the required consent rendered proceedings null, and Parliament had to be taken to have legislated on that basis, Pountney v Griffiths [1976] AC 314, R v Angel (Robert Charles) [1968] 1 WLR 669, Secretary of State for Defence v Warn [1970] AC 394 and R v Pearce (Stephen John) (1981) 72 Cr App R 295 applied.



Section 139(2) did not breach article 6. The European court had accepted that the right of access to the court was not absolute, but might be subject to limitations. The protection of those responsible for the care of mental patients from being harassed by litigation had been accepted as a legitimate objective. What mattered was that the limitations applied had not to restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right. But the threshold for obtaining leave under section 39(2) had been set at a very unexacting level, so that an applicant with an arguable case would be granted leave. S's undoing lay not in his failure to obtain the leave, which he should have had, but in his failure to proceed within the generous time limit allowed by the Limitation Act 1980, which would not itself fall foul of article 6.



(Per Baroness Hale) The fact that leave was required might not emerge until a relatively late stage in the proceedings. That a claimant who had suffered a wrong should be deprived of his remedy merely because of a procedural failure which no one noticed at the time was an affront to justice. It would not be appropriate to interpret section 139(2) so as to achieve such an obviously unjust result unless driven by the statutory language to do so. The statutory language made it clear that if anyone, including the claimant, appreciated the point, then leave had to be obtained; it did not make it clear that if no one, including the court or the defendant, did so, the proceedings would be a nullity. Halfway houses were usually to be preferred to absolute extremes. As to article 6, restrictions on access to the courts had to be proportionate to the legitimate aim sought to be achieved. If section 139(2) had the effect that proceedings issued in breach of it were always a complete nullity, thus depriving a claimant of a good claim, that was an effect out of all proportion to the aim which it was attempting to pursue: interpreting the subsection so as to allow the court to cure the defect once detected was a proportionate response.



Appeal dismissed.



Robert McCracken QC, Adam Solomon (instructed by Fisher Meredith) for the appellant; Jeremy Johnson, Lucinda Boon (instructed by Dolmans) for the respondent.