Case No: CC/2009/PTA/0268
Neutral Citation Number: [2010] EWHC 859 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/04/2010

Before :

MRS JUSTICE THIRLWALL
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Between :

	Shirley Campbell	Plaintiff	
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	PCHA	Respondent	

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Emma Read (instructed by PCHA) for the Respondent
The Appellant in Person

Hearing dates: 15th April 2010
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Judgment
Mrs Justice Thirlwall: 
1.	The appellant, Ms Shirley Campbell lives with her family in rented accommodation owned by the Respondents, Paddington Churches Housing Association Ltd at 10 West Ella Road, London NW10.  
2.	This is her appeal against an order made by HH Judge Copley sitting at Willesden County Court on 21st April 2009.  The order contained 2 paragraphs:-
i)	the Defendant do permit the claimant their servants agents and contractors to enter the premises at 10 West Ella Road, London NW10 on the 28th April 2009 between the hours of 12 noon and 5pm for the purpose of inspecting the gas installations therein and carrying out any necessary works of repairs or maintenance thereto.
ii)	The Defendant do pay the claimant’s costs assessed at £1,000 by 5th May 2009.
3.	On 12 May 2009, Ms Campbell filed an appellant’s notice.  She sought permission to appeal the costs element of the order, ie paragraph (ii).    Although the order expresses both paragraphs to be by consent it is plain from the transcript that only the first part of the order should have been expressed to be by consent.   I shall return to that later.
4.	On 22 December 2009 Ms Campbell filed an amended application for permission to amend the Appellant’s notice so as to include an application for permission to appeal ground 1 of the order.
5.	On 14th January 2010 at a hearing at which he received written and oral submissions from Ms Campbell, Mr Justice MacDuff gave permission to amend the Appellant's Notice and granted permission to appeal.
6.	The High Court had directed that a transcript be obtained of the judgment.  The transcript duly arrived.  There is a note on the County Court file from the Circuit judge saying that what was needed was a transcript of the discussion as to costs (which, at that point, was the only matter in dispute) rather than the judgment itself since the judgment was simply a recitation of the order rather than a detailed judgement.   What was therefore provided was a transcript of the discussions immediately before and after judgement.  The judge’s reasoning may however be divined from the discussions immediately afterwards.  In my view it was not proportionate to adjourn this case for a full transcript to be obtained.  Indeed no one asked me to.
7.	It is plain that the judge made the first part of the order on the basis that it was consented to.  It was common ground between the parties before me that during the hearing Ms Campbell told the judge that she had never refused access to the premises, (an assertion he did not accept) and that she had no objection to their coming to inspect the gas appliances.  She confirmed to me during the course of the hearing that this had been her position.  She repeated that she had never refused access to the premises, but that she had had no objection to the landlords attending if they wanted to come and inspect the gas appliances.   She was represented at the County Court hearing by the duty solicitor (I observe in passing that the transcript is confused in its identification of the speakers).  The duty solicitor confirmed expressly that “the order is clearly by consent as regards the inspection appointment but not in respect of costs”. 
8.	It is plain therefore that the first paragraph of the order was agreed to by both parties and the judge was entitled to proceed accordingly.  On the face of it there is no basis for setting aside the consent order since there is no suggestion that the appellant was misled into consenting.  Nor was she or anyone else in ignorance of any relevant facts.  That would be enough to deal with (and dismiss) that part of the appeal but in order to ensure that the appellant understands that all matters have been properly considered I deal with the balance of her submissions in respect of paragraph 1. 
9.	I record that it is agreed that during the County Court hearing Ms Campbell told the court that it was her position throughout the hearing that the inspection was unnecessary because there was no gas being used at the property and indeed there had been none consumed since September of 2006 when she entered into a dispute with her gas suppliers.  It is not in dispute that there has been no gas used at her home since then.  Thus when the inspector attended at the appellant’s home pursuant to the judge’s order, she gave access and he completed his form.  Under faults found he wrote “no gas being used at the property” and under remedial action taken he wrote “visual checks only”.  He confirmed, amongst other matters, that the gas pipe work complied with current requirements.  It was the respondents’ case that notwithstanding the fact that Ms Campbell was not using any gas they remained under a duty and had a right to inspect.
10.	I was taken in the course of Ms Campbell’s detailed and careful written and oral argument to many documents, including the Gas Safety (installation and use) Regulations 1998.  I do not set all of them out here but I have considered them as I have considered all her arguments.  I acknowledged the need for this matter to be resolved on Thursday 15th April to prevent any further expense and inconvenience.
11.	It is Ms Campbell’s case;
i)	that the judge should not have made an order at all because there were in existence other proceedings in which the same or similar matters of fact and law were to be considered.  She referred me to parts 20 and part 3 of the CPR.  She points to the fact that there were already in existence possession proceedings in which she had submitted a detailed counterclaim and asserts that the injunction application should have been consolidated or at least heard with it.
ii)	That since there was no gas at the property the inspection was unnecessary (and she confirmed as much to the judge in her letter sent after the inspection had taken place).

I shall deal with the arguments in turn:
No order because of the existence of other proceedings in which the issues should have been tried

I set out the outline chronology of proceedings below
12.	March 2007 	PCHA began possession proceedings against the appellant for non payment of rent (case number 7PA61455).
2.5.07 	appellant filed defence in claim 7PA61455.  
10.12.07 	appellant filed counterclaim.
2.4.09 	PCHA application for an injunction (the order under appeal) under claim number 9W10312.
21.4.09 	Order of Judge Copley in 9W10312.
27.4.09 	Hearing in possession proceedings.
13.	There is no doubt that the judge was aware of Ms Campbell’s counterclaim since he refers to it after the judgment.  He says “- are you going to proceed with it”.  It is plain that at that stage he thought that the counterclaim was related in some way to the claim for an injunction.  He was wrong about that and was enlightened.  It is clear on the transcript that he endeavoured to see whether he might make some orders in relation to the other matter, but in the end decided not to do so, not least because he was reassured, that the claim for possession was based on arrears of rent.  The counterclaim was of course much more broadly based than that and raises a number of complaints against the landlord, including a list of failures in respect of inspections of the gas appliances at the property.
14.	On what the judge knew there could be no possible criticism of the fact that there was no decision to consolidate proceedings or to defer consideration of the injunction until the following week (it does not appear that he was asked to take either course.  I remind myself that the appellant was legally represented).  On what I know from the additional papers that are available to me I am quite sure that it was well within his discretion to treat this application as free standing and to make an order on the narrow issue rather than put the matter off to a later date.  
15.	As a matter of fact there is now in existence a suspended possession order and the counterclaim has been struck out.  Ms Campbell has lodged appeals at Willesden County Court against both orders.
The order should not have been made because there was no need for it, there being no gas at the premises
16.	It is not in dispute that the appellant had informed the respondent’s agents (Village Heating) of this fact in March 2008.  She reasonably thought that they had accepted this since they did not turn up to a previously announced inspection.  She points out that the letter from the agents seeking an inspection in March 2008 was not included in the list of visits relied upon by the respondents in their application.  That rather confirms the point that the agents had not informed the respondents of the position.  That is of no avail to the respondents.  They are deemed to know what their agents have been told, and that is accepted. 
17.	Whilst I understand the practical common sense point the appellant makes the fact is that the respondent landlords were under a duty to inspect the appliances for safety, which they duly did – as I have set out already.  It was not a reason to refuse the order.  

18.	I am quite satisfied that the additional arguments relied on by the appellant give no reason for me to interfere with the first paragraph of judge’s order.  
Paragraph 2 of the order 
19.	The transcript shows that the judge found that the appellant had not given access and so would have to pay the costs of the application.  Part 44 sets out the very wide discretion a judge has in that regard.  The Appellant makes a number of points.  The only one of substance in my view is the letter from Village Heating dated 14th March 2008 to which she responded on 18 March 2008.  It was drawn to the judge’s attention after judgment by the duty solicitor but it is not apparent that the judge was invited to read it or that he did so.  Nor was he provided with the accompanying correspondence, because it was not available, the appellant says as she had received late notice of the hearing.  In my view had he had the benefit of that correspondence he would probably have taken a different approach to the appellant’s refusal to cooperate.   Given that there was to be a hearing 6 days later at which arrangements could have been made to organise the inspection I consider it likely that the judge would have considered it appropriate to award only a modest proportion of the costs, rather than the whole of the landlord’s costs of the hearing.  To that extent therefore I interfere with the judge’s exercise of his discretion and direct that the sum payable under paragraph 2 of the order should be reduced to £150. 
20.	To that extent the appellant’s appeal is successful.
Costs of this appeal 
21.	I have a wide discretion in respect of costs.  In the normal course of events costs are awarded against the losing party.  In this case the appellant has succeeded in respect of part of the appeal, but not in respect of the other.   The Respondents have drawn my attention to a letter they wrote to the appellant on 20 January 2010. It is in the following terms “Bearing in mind that you did give access on 28 April 2009 my client is quite happy for paragraph 2 of HH Judge Copley’s Order dated 21 April 2009 to be varied to read no order as to costs”.  I have to say that was an entirely reasonable offer.   The appellant replied as follows “[As in all cases] I did give you [PCHA] access to carry out Annual Gas Service at my place of residence on 28 April 2009 – therefore- you may vary paragraph 2 of Circuit Judge Copley’s Order dated 21 April 2009 to be read as no order as to costs”.  She went on to repeat her assertion that she had never denied access and that this matter should have been their response to the counterclaim in the possession proceedings.  She continued “As you are aware…on 14 January 2010 Mr Justice MacDuff gave me permission to appeal and to amend (among others) the Appellant’s Notice to include an appeal against clause 1 of Circuit Judge Copley’s Order…which means that …there still exists my appeal against clause 1 of the order”. Unfortunately this letter did not reach PCHA and there was no further discussion.  I have to say that given the fact that the inspection had been consented to and had taken place within days of the hearing it is difficult to see why the appellant persisted with this appeal in the light of the offer to drop the order for costs.    The respondent’s costs of this appeal were almost £3,000.  In response to a question from me Miss Read, counsel for the respondents, was instructed to reduce the sum sought by half, i.e. to £1499.    An order for costs is amply justified and I order the appellant to pay costs in the sum of £1499.