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High Court criticises Magistrates Court for failure to state a case in closure order dispute

Leeds District Magistrates Court erred by deeming an application frivolous and refusing to state a case for the opinion of the High Court, a judge has ruled.

In Rayne, R (On the Application Of) v Leeds District Magistrates Court [2021] EWHC 1964 (Admin) HHJ Gosnell refused to grant relief to the claimant, however, because the issue of his security of tenure “has become academic due to the passage of time. The claimant no longer has any practical need for a final remedy”.

“Had this not been the case however it is clear that I would have granted relief.”

The claimant is a tenant of a home in Leeds owned by the council.

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He suffers from paranoid schizophrenia and has been twice detained under the Mental Health Act 1983.

Neighbours complained of extensive anti-social behaviour and in June 2019 Leeds served both an abatement notice under section 80 of the Environmental Protection Act 1990 and a notice seeking possession.

The council then applied for a partial closure order which would permit access to the property by only the claimant and a small list of friends and family.

He took legal advice and a hearing took place in January 2020 and adjourned until 12 February 2020.

The claimant’s solicitors applied for legal aid funding as an exceptional case. This was refused and the solicitors sought a review asking on 12 February 2020 for a further adjournment so this review could be completed.

Magistrates refused the application for an adjournment and the solicitors withdrew from the case. They were notified later that morning that the review was successful and legal aid funding was granted. By this time however the court had granted the application for a partial premises closure order for a period of three months, it appeared with the claimant's consent, HHJ Gosnell said.

The following month the claimant asked the magistrates to state a case for the opinion of the High Court.

The magistrates refused that too, on the grounds that the application was frivolous as being “futile, misconceived, hopeless or academic”.

HHJ Gosnell noted that the claimant remained in the property as a secure tenant, the closure order had long expired [it was not renewed after three months] and the proceedings were now academic as a consequence of the application of the rather complicated statutory provisions. He therefore refused relief on that ground alone.

However, in case of a successful appeal, he dealt briefly with the substantive grounds of challenge.

The judge said the ground of claim was that the magistrates had been wrong to conclude that the application to state a case was frivolous.

The claimant’s counsel argued that magistrates were aware the Legal Aid Agency (LAA) had undertaken to reach their decision on the review the same morning the case was to be heard and so the only sensible decision available was to adjourn briefly for that to be completed and for the claimant to have legal representation if entitled to it.

It was also argued for the claimant that the LAA’s decision after the review to grant him aid showed it believed he required legal aid to safeguard his rights under Article 6 (1) and Article 8 ECHR, and that the magistrates’ suggestion that the need to make progress should be balanced against his Article 6 rights represented a mistake in law.

HHJ Gosnell said: “The trial had already been listed one day outside the 14 day limit for adjournments under the Anti-Social Behaviour, Crime and Policing Act 2014.

“The appeal against refusal of legal aid was due to be determined later that day. A short adjournment to see whether this vulnerable litigant could have the benefit of legal representation would clearly have been reasonable.”

He said it should have been “fairly obvious” to magistrates “that an illiterate claimant only recently released from hospital having suffered from paranoid schizophrenia could not properly and effectively represent himself in this trial involving complex housing law rights to access to his home”.

The magistrates’ conclusion that the claimant had had a reasonable opportunity to obtain legal aid funding “was not a conclusion that any bench, properly directed, could have reached on the facts of this case”.

HHJ Gosnell concluded: “This leads me to the inevitable conclusion that the [magistrates were] wrong in law to categorise the request to state a case as "frivolous". It cannot be said that it was “futile, misconceived, hopeless or academic”.

Mark Smulian

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