Closure orders and the need for fairness

The Administrative Court recently quashed a closure order under section 80 of the Anti-social Behaviour, Crime and Policing Act 2014, holding that the refusal to grant an adjournment was unfair and irrational. Ramby de Mello and Susana Ferrin analyse the ruling.

In the case of R (on the application of Ford) v Warwick District Council [2025] EWHC 843 (Admin) (26 March 2025), the Administrative Court considered whether the decision of Coventry Magistrates’ Court not to adjourn the hearing for the Claimant to obtain legal representation was unreasonable and/or constituted a breach of her Article 6 rights, holding that it was unfair and irrational.

Factual background

On 7 August 2024, Coventry Magistrates’ Court made a closure order in respect of the property occupied by the Claimant and her two sons, having refused the Claimant’s application for an adjournment to obtain legally aided representation (paragraphs [3]-[12] of the judgment).

The Claimant’s case

The claimant argued that the refusal to grant her an adjournment was unfair given the consequences on the Claimant of the risk of loss of her property; and that she was without legal representation through no fault of her own as she had acted promptly to obtain the same. Her solicitors explained that they could not apply for and obtain legal aid to represent her because there was no entry on the court list despite the hearing going ahead. Unfairness was exacerbated by the fact that some of the evidence in the case was hearsay and potentially inadmissible hearsay. In addition, an appeal to the Crown Court would not be an adequate alternative remedy (paragraphs [7] and [20]; see Interested Party’s contentions at paragraph [21] of the judgment).

The Court’s assessment

First, the Court addressed whether the claim was academic in light of R (Rayner) v Leeds District Magistrates’ Court [2021] EWHC 1964 (Admin). The Court noted that considerations of the closure order having expired and the time having passed for relying on it as an absolute ground for possession under the Housing Act 1985 could be relevant for relief. However, the claim was not academic at the time of commencement of proceedings and the time of the grant of permission, and therefore, the Claimant should not be declined permission on such a ground (paragraphs [22]-[28] of the judgment).

Second, the Court considered whether the Claimant had an adequate alternative remedy because judicial review is a remedy of last resort. The Court concluded that “procedural impropriety, including impropriety and unfairness arising from the refusal of an adjournment can warrant redress by way of judicial review even if a party has an alternative remedy by way of an appeal” (paragraphs [29]-[32] of the judgment).

In respect of whether an appeal to the Crown Court would be an adequate remedy, the Court examined the recent decision of Fordham J in Chief Constable of Humberside Police v Kelly Morgan [2024] EWHC 2859 (Admin) and whether the Crown Court has a suspensory power in the context of appeals under the Anti-social Behaviour, Crime and Policing Act 2014. The Court considered that it was not necessary to reach a conclusion on this point because not only the dictum of Fordham J in this respect was obiter but also because the decision admittedly recognised the supervisory jurisdiction of the High Court even so (paragraphs [33]-[38] of the judgment).

Finally, the Court addressed fairness and rationality, holding that the refusal to grant the adjournment rendered the proceedings unfair and irrational (paragraphs [39]-[47]):

A party at risk of losing her home was forced to act without a lawyer in proceedings brought at short notice where she had done all she could to obtain legal representation; where her inability to obtain such representation was in part a consequence of the court’s own arrangements; and where the court had available to it steps to minimise the risks which might flow from the delay which would be caused by an adjournment (paragraph [46]).

This outcome is important because it reiterates the High Court’s supervisory jurisdiction in the context of procedural impropriety and unfairness; and it emphasises that “[t]he need for fairness in procedure is an important requirement in addition to and separate from the objective of getting the right outcome” not only because “fair procedures are more likely to result in an objectively right determination” but also to “pay respect to the rights of those subject to legal processes” and as “a requirement of the rule of law” (paragraph [45]).

The judgment is available here.

Ramby de Mello and Susana Ferrín of No5 Barristers’ Chambers, alongside Errol Robinson, represented the successful Claimant, instructed by McGrath & Co.