CO/6676/2006 
Neutral Citation Number: [2007] EWHC 2305 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 6 July 2007
 
B e f o r e: 

MR JUSTICE SULLIVAN
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Between: 
THE QUEEN ON THE APPLICATION OF GEORGE HARGREAVES 
Claimant

v 

LONDON BOROUGH OF HACKNEY 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr P Diamond  appeared on behalf of the Claimant 
Mr M Palfrey (instructed by DLA Piper) appeared on behalf of the Defendant 
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J U D G M E N T
1.	MR JUSTICE SULLIVAN:  This is as a renewed application for permission to apply for judicial review of the decision of the defendant to commence legal proceedings and to issue proceedings for possession on 9 May 2006.  The defendant sought possession of premises situated at 35 Beechwood Road, Dalston in east London.  The property is presently used for the purposes of the East London Christian Choir School and for a Christian Centre.  
2.	The property has been used by the Christian Centre since December 2000, when a one‑year lease was entered into.  The lease expired by effluxion of time in December 2002.  Subsequently, no further leases have been entered into and no rents have been paid, but the claimant, the Christian Centre and the school which was subsequently opened have been remaining at the property with the agreement of the defendant.  However, on the claimant's own evidence they have known that they would have to move because in due course the properties would be redeveloped, and they have known that since at least December 2002.  
3.	There were various meetings with officials from the Council.  According to the claimant's own case, there have been a number of letters from the defendant stating when possession of the property would be required.  Thus, in November 2005 there was a letter saying that possession would be required in January 2006.  In December 2005, there was another letter extending that period until 30 April 2006.  
4.	Following visits to a number of possible alternative sites, on 24 March 2006 another extension of time was granted until 30 May 2006, and then again on 30 March 2006, a further extension of time for possession was granted until 30 June 2006.  Eventually, the proceedings which are under challenge were issued on 19 May 2006.  The challenge was made to a number of grounds.  It is conceded that the claimants have no private law right to remain in the premises, but it is submitted that, since the defendant is a public body, it has to act in accordance with public law principles, and those principles include the duty to act fairly, of which examples are that a pubic body must not breach a legitimate expectation, nor must it act in such a way as to amount to an abuse of power.  
5.	When I asked Mr Diamond precisely what it was that founded a legitimate expectation that the Council would do any more than simply assist to find alternative premises, he was not able to point to anything, and instead referred me to the authorities, which show that a legitimate expectation is but one branch of the overarching requirement that a public body should act fairly.  In that context, he referred me to the case of R v Inland Revenue Commissioners ex parte Unilever Plc [1996] STC 681, and also the case of Rashid v Secretary of State for the Home Department [2005] Imm App R 608; [2005] EWCA Civ 744.  That case was concerned with whether the claimant had been treated unfairly because when his application for asylum was considered, a policy which should have been applied to someone in his position was erroneously not applied to his case.  By the time his case came to be considered by the Secretary of State, that policy, which should have been applied to the claimant, had ceased to apply.  The facts of that case are very far from the present case, but they demonstrate that there is an underlying principle of fairness, as submitted by Mr Diamond.  However, it has to be borne in mind that what has to be demonstrated has been referred to both in Unilever and Rashid as "conspicuous unfairness": see for example paragraphs 50 and 52 of the judgment of Dyson LJ in Rashid.  
6.	So the question in the present case is: is it arguable that the defendant's conduct in this case has been conspicuously unfair?  In my judgment, far from being able to demonstrate that upon an arguable basis, it is plain that this is a case where a public body has been bending over backwards to be fair and accommodating to the claimant in a case where it must have been obvious to everyone that possession of the property would be required in due course.  The defendant has been repeatedly granting extensions of the time for possession, and has assisted in the search for alternative premises, even though that search has not been successful, and issued the possession proceedings in May 2006 only after a series of warnings.  Indeed, far from there being conspicuous unfairness, there has been conspicuous forbearance on the part of this public authority.  Thus, in my judgment, there is simply no arguable case on the basis of unfairness.  
7.	The other public law points raised are all variants of the unfairness theme, and, in my judgment, they similarly fail entirely on the facts.  I should make it plain that, in my judgment, this application for permission to apply for judicial review was always misconceived.  It was refused on the papers on 1 February 2000 by Mitting J and then renewed on 5 February, but in the intervening time, the possession order proceedings came before HHJ Mitchell in the Clerkenwell and Shoreditch County Court, and on 8 January 2007 he gave judgment in favour of the defendant and made an order for possession for 31 August 2007.  
8.	By way of amendment to the original grounds, Mr Diamond sought to raise what he described as an important jurisdictional point, that is to say the extent to which the county court judge had jurisdiction to deal with the public law issues.  It is only right to observe that whatever the jurisdictional position may be, the county court judge had the advantage of being able to hear live evidence, and having done so, he roundly rejected the public law claims not on the basis of any complicated analysis of public law principles, but simply on the facts, saying in effect that there was no substance in any of the allegations.  Indeed in respect of one of the allegations, political bias, the judge said it was completely unsupported, as indeed it is, in judicial review proceedings and it should not have been raised in the pleadings without evidence to support it.  He also dealt with the legitimate expectation point on the facts, saying that there was no breach of expectation, and also another complaint about a breach of race relations policy.  
9.	I prevented Mr Diamond from making extensive submissions on the jurisdictional point because it seemed to me that however interesting the legal arguments may be, at the end of the day judicial review is a discretionary remedy, and if there was no substance in the factual basis for the claim, then it would be pointless to consider the jurisdictional issues.  
10.	The background is well understood that the normal route of challenge to an adverse decision by a circuit judge in possession proceedings would be by way of an application for permission to appeal to the Court of Appeal if the learned judge refused permission to appeal, as he did in this case, rather than by way of an application for permission to apply for judicial review.  Judicial review would only be granted in exceptional cases, where, for example, there was a lack of jurisdiction or such unfairness as to completely negate the proceedings.  It cannot conceivably be said that there was unfairness in the proceedings before HHJ Mitchell.  He gave a very detailed and careful judgment.  So the sole issue would be whether he had jurisdiction to consider, by way of defences to the possession proceedings, the public law arguments.  It is unnecessary to express any final view about that.  
11.	It seems to me that since they were raised by way of defence, the judge at the very least had a discretion to consider them.  Some circuit judges might not have done and might have said it would be better dealt with by way of judicial review.  For perfectly sensible reasons, namely that he could hear oral evidence and that the case needed speedy resolution, HHJ Mitchell decided to entertain them.  But as I have said, the complaint that he did so is entirely academic unless Mr Diamond is able to demonstrate that the public law complaints can be said to be arguable.  But for the reasons that I have given, I am entirely satisfied that there is no arguable public law error in the Council's decision to belatedly commence possession proceedings in respect of these properties, which everyone must have known would need to be repossessed for a very long time.  So this renewed application for permission to apply for judicial review is refused.  
12.	For the sake of completeness there is also an application to amend the grounds to enable consideration of the criticisms of the manner in which HHJ Mitchell dealt with the public law claim.  While I would be content to grant permission to allow that amended ground to be argued, I reject it for reasons that I have just given.
13.	MR DIAMOND:  I do not know whether I need to ask for leave to appeal from this court.
14.	MR JUSTICE SULLIVAN:  You would have to ask for permission to appeal, yes, if you wanted to appeal this decision. 
15.	MR DIAMOND:  I would just briefly say that we think there are substantive jurisdictional issues engaged in this and it should have been considered by HHJ Mitchell, because HHJ Mitchell did not say there was no public law ground.  He said there is a public law ground and I am going to consider it, and on the authority of Avon he should not have done that.  That has vitiated proceedings in our submission, and we think that is a matter which is worthy of adjudication by the Court of Appeal.
16.	MR JUSTICE SULLIVAN:  Thank you very much.  I do not need to trouble you, Mr Palfrey.  In my judgment, since the public law points are not arguable in any event, the criticism of HHJ Mitchell is academic and it would not be an appropriate case to be considered by the Court of Appeal.
17.	MR PALFREY:  My Lord, I do make an application for my costs of attending today.  One of the matters that we say we have assisted the court in is providing the transcripts, because quite clearly they were not being provided, and also there was secondly the point that there was a question of effectively trying to appeal, without going through the normal methods, the decision on the facts of HHJ Mitchell, and I say that we should be here and we should get our costs.
18.	MR JUSTICE SULLIVAN:  Yes.  What do you want to say about that, Mr Diamond? 
19.	MR DIAMOND:  I say that they are litigants in person.  They put an order in for the transcript.  Mechanical recording has lost that transcript order and I was actually going to write it up from counsel's notes until very kindly it was produced by the other side.  It is normally an ex parte hearing.  There is no need for them to be here at all.  In fact, I drew in my skeleton arguments the actual issues involved for the court to consider, and it was primarily jurisdictional, in our submission, and we say that the Community Centre has suffered enough hardship, and therefore if they decide to attend today, it is on their own basis.
20.	MR JUSTICE SULLIVAN:  Thank you very much indeed.  I am satisfied that costs ought to be paid by the claimants to the defendant in the somewhat unusual circumstances of this case.  This was not simply a renewal of an application for permission to apply for judicial review; it was effectively a fresh application for permission to apply for judicial review of the decision of HHJ Mitchell, which had granted the Council a possession order as from August 2007.  Thus, it seems to me the defendant was really bound to attend in order to defend that judgment and to make submissions, if necessary, as to the appropriateness of using judicial review proceedings to challenge HHJ Mitchell's decision.  So for those reasons, the claimant is to pay the defendant's costs.  Those costs are to go for detailed assessment if not otherwise agreed.  
21.	I assume there is no summary schedule? 
22.	MR PALFREY:  No, My Lord.
23.	MR JUSTICE SULLIVAN:  No.  Thank you very much.