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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Edward v Royal Borough of Greenwich  EWHC 1112 (Admin) (17 May 2017)
Cite as:  EWHC 1112 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| KINGSLEY EDWARD
|- and -
|ROYAL BOROUGH OF GREENWICH
Yaaser Vanderman (instructed by Ashfords LLP) for the Respondent
Hearing date: 27 April 2017
Crown Copyright ©
Mrs Justice Lang :
(1) A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court, a Divisional Court or the Court of Appeal, may be made only
(a) with the permission of the court dealing with the proceedings in which the false statement or disclosure statement was made; or
(b) by the Attorney General.
(2) Where permission is required under paragraph (1)(a), rule 81.14 applies as if the reference in that rule to a Part 8 claim form were a reference to a Part 23 application notice and the references to the claim form were references to the Part 23 application notice.
(3) (6) .."
"5.2 Where the permission of the court is sought under rule 81.18(1)(a) or 81.18(3)(a) so that rule 81.14 is applied by rule 81.18(2) or 81.18(4), the affidavit evidence in support of the application must
(1) identify the statement said to be false;
(a) why it is false; and
(b) why the maker knew the statement to be false at the time it was made; and
(3) explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.
5.7 The rules do not change the law of contempt or introduce new categories of contempt. A person applying to commence such proceedings should consider whether the incident complained of does amount to contempt of court and whether such proceedings would further the overriding objective in Part 1.
9. In all cases the Convention rights of those involved should particularly be borne in mind. It should be noted that the standard of proof, having regard to the possibility that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt."
"23. The approach to be adopted on applications for permission has been considered in a number of authorities. The principles that emerge are the following:
(i) In order for an allegation of contempt to succeed it must be shown that " in addition to knowing that what you are saying is false, you had to have known that what you are saying was likely to interfere with the course of justice " see Edward Nield v. Loveday  EWHC 2324 (Admin);
(ii) The burden of proof is on the party alleging the contempt who must prove each element identified above beyond reasonable doubt - see Edward Nield v. Loveday (ante);
(iii) A statement made by someone who effectively does not care whether it is true or false is liable as if that person knew what was being said was false see Berry Piling Systems Limited v. Sheer Projects Limited  EWHC 347 (TCC), Paragraph 28 but carelessness will not be sufficient see Berry Piling Systems Limited v. Sheer Projects Limited (ante), Paragraph 30(c);
(iv) Permission should not be granted unless a strong prima facie case has been shown against the alleged contemnor see Malgar Limited v. RE Leach (Engineering) Limited  EWHC 843 (Ch), Kirk v. Walton  EWHC 1780 (QB), Cox J at paragraph 29 and Berry Piling Systems Limited v. Sheer Projects Limited (ante) at Paragraph 30(a);
(v) Before permission is given the court should be satisfied that
(a) the public interest requires the committal proceedings to be brought;
(b) The proposed committal proceedings are proportionate; and
(c) The proposed committal proceedings are in accordance with the overriding objective
- see Kirk v. Walton (ante) at paragraph 29;
(vi) In assessing proportionality, regard is to be had to the strength of the case against the respondents, the value of the claim in respect of which the allegedly false statement was made, the likely costs that will be incurred by each side in pursuing the contempt proceedings and the amount of court time likely to be involved in case managing and then hearing the application but bearing in mind the overriding objective see - Berry Piling Systems Limited v. Sheer Projects Limited (ante) at Paragraph 30(d);
(vii) In assessing whether the pubic interest requires that permission be granted, regard should be had to the strength of the evidence tending to show that the statement was false and known at the time to be false, the circumstances in which it came to be made, its significance, the use to which it was actually put and the maker's understanding of the likely effect of the statement bearing in mind that the public interest lies in bringing home to the profession and through the profession to witnesses the dangers of knowingly making false statements see KJM Superbikes Limited v. Hinton  EWCA Civ 1280, Moore-Bick LJ at Paragraphs 16 and 23; and
(viii) In determining a permission application, care should be taken to avoid prejudicing the outcome of the application if permission is to be given by avoiding saying more about the merits of the complaint than is necessary to resolve the permission application see KJM Superbikes Limited v. Hinton (ante) at Paragraph 20."
"16. Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker's state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.
17. In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it. In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J. in paragraph 16 of his judgment in Sony v Ball that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.
18. Paragraph 28.3 of the Practice Direction supplementing Part 32 directs the applicant to consider whether proceedings for contempt would further the overriding objective and that is a matter which the court itself should plainly have in mind. It is important not to allow satellite litigation of this kind to disrupt the progress of the substantive proceedings and it may not be possible to assess the strength of the complaint until those proceedings have concluded. This danger was well described by David Richards J. in Daltel Europe Ltd v Makki as follows:
"Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well-founded. If parties thought that they could gain an advantage by singling out these statements and making them the subject of a committal application, the usual process of litigation would be seriously disrupted. In general the proper time for determining the truth or falsity of these statements is at trial, when all the relevant issues of fact are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application under CPR Part 32.14.""
The alleged false and/or misleading statements
"37. It is denied that, in suspending then excluding the Claimant from the housing register on the basis of his past convictions, Greenwich thereby breached a legitimate expectation warranting substantive relief. In particular:
i. The representation was not "clear": R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  AC 453, §60 (Lord Hoffmann). It referred to "your past conviction" .. suggesting that the representor was unaware that the Claimant had two past convictions. This highlights the confusion in the allocation team about the Claimant's criminal history;
ii. Even if the legitimate expectation arose, the public interest was sufficient to override the interest in keeping the promise in that:
(1) The reason why the email of 23 August 2016 was superseded was because, although the facts of the Claimant's convictions were available to the allocations team, their seriousness had not been fully absorbed. In particular, Ms Coral Sewell was unaware of the full nature of the 2009 conviction. This was an oversight that Greenwich sought to correct in its Suspension and Exclusion Decisions. This oversight can be explained, in part, because of the barrage of emails, calls, challenges and complaints made by the Claimant during the relevant period;
(2) There was no detrimental reliance by the Claimant. Where an assurance is given to only one person and there is no irrationality in adopting the new approach, the lack of detrimental reliance is fatal: Oxfam v HMRC  EWHC 3078,  STC 686 (Ch), §50 (Sales J);
(3) The public interest in excluding from the register those who have committed serious criminal offence in the past is substantial.
38. In relation to §34(iv) above:
i. There was no duty to give reasons for the Suspension Decision; fairness did not require this: R v Secretary of State for the Home Department ex p Doody  1 AC 531 (HL), 560 (Lord Mustill). First, Greenwich made the Suspension Decision in an administrative, rather than judicial, capacity: Stefan v General Medical Council  1 WLR 1293 (PC), 1301-1302. Second, the Suspension Decision, as stated in the letter of 23 September 2016, was an interim decision pending further enquiries and a final decision with reasons. Third, the reasons for the Suspension Decision the allocation team's realisation that the Claimant's criminal past was more serious than had been thought and the Claimant's past rent arrears were not such as to require disclosure at that stage. It was not an issue which the Claimant could have any meaningful input into;
ii. In any event, the Claimant did not suffer prejudice. By his emails of 2 and 3 October 2016 (pp16-20 of the Bundle), the Claimant appears to have been aware of the reasons for the Suspension and was able to respond;
iii. Alternatively, any duty to give reasons was satisfied by the email, dated 12 October 2016 (p34 of the Bundle), in which Ms Sewell confirmed the reasons to the Claimant. She stated, "your past offence(s) and housing related debt are the issues under consideration and you will be notified of the outcome of this review shortly";
iv. Further or alternatively, the Suspension Decision was superseded by the Exclusion Decision, on 18 October 2016 (pp41-43 of the Bundle), and the reasons given with that letter;
v. In any event, the Court must refuse permission as it is highly likely that the outcome for the Claimant would not have been substantially different if reasons had been given in the letter of 23 September 2016 (p30 of the Bundle): s31 (3C) of the Senior Courts Act 1981.
39. In his Additional Grounds (p15B of the Bundle), the Claimant argues that Greenwich had no power to revisit and reverse the decision of 14 September 2016 to enter the Claimant onto the housing register. This is incorrect:
i. In making the decision on 14 September 2016, Greenwich suffered from an oversight in failing to appreciate the particulars and seriousness of the Claimant's past convictions. This oversight amounted to a fundamental mistake of fact: Porteous v West Dorset DC  HLR 30 (CA), §9 (Mantell LJ);
ii. Alternatively, even if this oversight cannot amount to a fundamental mistake of fact, s12(1) of the Interpretation Act 1978 states: "When an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time as occasion requires". Given that no contrary intention appears in the 1996 Act or the Scheme, Greenwich ought to be able to revisit decisions such as those made on 14 September 2016; and,
iii. Further and/or alternatively, this case can be distinguished from the homelessness cases (such as Porteous v West Dorset DC  HLR 30 (CA)). Compared to Part VII of the 1996 Act, Part VI leaves much greater discretion to housing authorities in allocating housing: ss159(7) and 166A of the 1996 Act. This is an acknowledgement that the housing authority have the expertise and knowledge to allocate the housing stock in its area. Where such discretion exists, as opposed to findings of fact, public authorities are entitled to revisit decisions, such as those of 14 September 2016: Rootkin v Kent CC  WLR 1186 (CA), 1195 (Lawton LJ)." (emphasis added)
" the council has decided to exclude your details from the housing register for the following reasons: due to you not meeting the five year residency criteria and your past offences. The Council will exclude from the register applicants who have been guilty of unacceptable behaviour which makes them unsuitable to be a tenant. Unacceptable behaviour is any criminal or anti-social behaviour, or any significant breach of tenancy conditions such as serious rent arrears."
"Part 7 [Homelessness application]
Further enquiries required:
On loss of last settled accommodation including any possession proceedings for rent arrears.
The offending history including imprisonment prior to loss of accommodation.
Part 6 [Housing register]
Information from the Part 7 enquiries show the extent of the offending history, namely two convictions (not one) for drug related offences and new information relating to possession proceedings for rent arrears to a private landlord.
Continue homelessness enquiries
Agree to suspend the Housing Application pending consideration of all the information available through enquiries and taking into account the terms of the Allocation Policy."
The Panel notes that on 16 January 2009 you were convicted for the offence of evading a prohibition on the import of a Class A drug and you were imprisoned for 7½ years. After your release from prison you were again convicted on 10 September 2014 for the offence of possessing a controlled drug with intent to supply, for which you were sentenced to seven years in prison with the final four years suspended. Both offences are very serious and that is reflected in the sentences you received. Both offences put others at risk from Class A/controlled drugs and all the harmful and negative issues associated with such drugs.
You say in your submission of 29 May 2016 that your 'conviction resulted from an incident that occurred outside the UK, and it was not related to anti-social behaviour or behaviour that directly placed other people at risk: hence I consider it inappropriate to deem me an unsuitable council tenant- on the basis of unacceptable behaviour.'
The Panel did not accept your submission and concluded that drug related offence have a serious impact on society. The offences involve the importation of a Class A drug and the latter with an intention to supply drugs. Had you been successful in the importation, people would inevitably have been put at risk. Notwithstanding, that you did not succeed in your endeavour, it is clear that your general conduct is sufficient to put others at risk particularly as you have shown no remorse. The Panel noted that you were on licence when you committed the second offence. You continue not to accept the seriousness of your conduct and imprisonment for the first offence, clearly this did not deter you from committing the second offence. The Council faces significant problems with drugs misuse in its area. The Council has a duty to the residents of the borough to manage the its allocation of accommodation and its housing estates in a way that ensures that it safeguards its residents and does not exacerbate or contribute to the on-going problems.
The Panel has taken into consideration the information you supplied regarding your risk to the community and note that your risk was reduced from medium to low following the completion of a work book given to you to complete whilst in prison. I note that the work book took three days to complete and was completed to a very high standard. The Panel has however taken into account the Council's responsibilities as a social landlord, the nature, frequency and seriousness of your criminal offences (for which you are still under licence), and concluded that you are a risk to others. This is more so given that you have not yet demonstrated a meaningful period since your release from prison in April 2016 without committing a serious offence.
2. Judgement for £1570
On the 21 May 2014 at Glasgow Sheriff Court, the solicitors for the landlords were granted decree for eviction, payment of the claimed arrears on £1570 and expenses. You are therefore subject to an order for breach of tenancy namely failure to pay you rent resulting in substantial arrears.
The Panel has also taken account of your assessed medical condition of PTSD and have concluded that that in itself or when combined with other factors does not prevent the Council from excluding you from the Housing Register.
The Council is mindful of its duties towards persons with protected characteristics under the Equality Act 2010 and having due regard to your disability, namely PTSD, has concluded that this is a proportionate decision. It is a legitimate aim to seek to safeguard the interests of other borough residents in the light of your serious offending behaviour and other matters sited above by excluding you from the housing register.
These matters can be reviewed in 12 months but if you are unhappy with this decision, you have the right to request a review. The request for a review must be made in writing within 21 days of the date of this letter."
"17. The defendants in this case have made a number of decisions relating to whether the claimant ought to be on the housing register. On 23 August 2016 the claimant was written to by the defendant saying that his past conviction will not be taken into account when that decision was made. In fact he has not one conviction but two; each of them relating to dealing in drugs and for both of which he received lengthy custodial sentences.
18. I accept that the defendant authority were in possession of information as to both of those convictions before they wrote that letter on 23 August. Having written that letter, however, on 23 September the defendant authority suspended the claimant from its housing register, to which he had been admitted a few days before on 14 September, and then finally on 18 October of this year they excluded the claimant from their housing register altogether, that being the final decision.
19. The claimant seeks to bring judicial review of those last two decisions: firstly the suspension decision and then the exclusion decision. The most significant point that he brings for consideration is whether the letter of 23 August saying that his past conviction will not be taken into account means that the decisions that were made to suspend and then to exclude him which expressly did take into account his previous convictions are challengeable. His assertion in reality is that there was a legitimate expectation set up by the council on 23 August which meant that they could not act in the way they purported to do thereafter.
20. As far as the claim of legitimate expectation is concerned, it is arguable whether that was a clear representation or not as it referred to conviction, whereas in fact there were two significant convictions. But when one looks at whether there is a public law remedy for a legitimate expectation when it arises, one must look at the way in which the claimant acted in reliance upon that expectation. There was nothing that he did in this case that was in reliance upon it and indeed it is difficult, if not impossible, to think of anything that he could have done in reliance upon the expectation that he claims was created by the letter of 23 August.
21. There is a line of authority, the case in particular to which I have been referred being Oxfam v Her Majesty's Revenue and Customs  EWHC 3078, in which it is said that not relying on a purported expectation is fatal to any claim of this sort.
22. In this case, given all the other factors, including the timescale and the lack of reliance and the lack of any way in which he could have relied upon what was in that letter, I do not find that there is anything within the decisions that is challengeable on that basis.
23. Other points have been taken which are on their face of less merit. Firstly, the claim is made that the claimant was not informed of the reasons why he was suspended from the register initially. That suspension decision has in any event now been superseded but it is clear from the correspondence in this case that he was well aware of the issues that were being investigated by the defendant and that there is no procedural unfairness in the way in which they acted.
24. It is also submitted on the part of the claimant that the defendant has unlawfully deviated from the scheme set in place in order to determine whether one should be on the housing register or not. A number of points are made, including the fact that his past criminal offences do not amount to antisocial behaviour or unacceptable behaviour.
25. In fact, his criminal offences are catered for as one of the reasons for removal from the scheme within the text of the scheme itself. His assertion that past criminal offences which took place more than 2 years ago cannot be considered is factually inaccurate.
26. The authority have also relied on past rent arrears. He has past rent arrears. He seeks to explain them through his medical condition, but the medical condition does not mean that these are arrears that cannot be considered.
27. In any event, even if one removed the rent arrears from the calculation in this case completely, it seems to me I should apply section 31(3)(c) of the Supreme Court Act 1981 to say that the previous convictions on their own would undoubtedly provide a good basis for refusing his application to be on the register.
28. He further submits that the local authority has acted in breach of the Human Rights Act and in violation of the Equality Act.
29. I need say no more than I see no basis upon which that assertion can be made with any hope of success.
30. There are, therefore, in my judgment, no grounds for allowing this case to go forward for judicial review and I refuse the application."
" the judge was correct to hold, for the reasons he gave, that the Respondent acted lawfully in excluding the Appellant from the housing register. I should record that a number of arguments on this appeal were entirely misconceived: for example, the arguments concerning the absence of an express reference to section 184 or specific background facts, the supposed failure to give reasons, res judicata and estoppel.
Accordingly, under CPR 52.3(4A)(a), these applications are refused as totally without merit and I order that the appellant may not request the decision to be reconsidered at a hearing."
"5. The original exclusion from the housing register, on 27 April, was made on the bases that the Claimant did not meet the five-year residency criterion and his past criminal offences. The appeal in relation to this decision was refused on 29 June 2016.
6. Realising that homelessness was a valid reason for exemption from the five-year residency criterion, Greenwich withdrew its original decision on 3 August 2016 for review. As part of undertaking this review Ms Coral Sewel sent an email to the Claimant, on 23 August 2016, in which it was stated that:
"Please be aware that the review will be restricted to the above as it has also been decided that your past conviction will not be taken into account in considering your eligibility to join the housing register".
7. A new decision was issued on 14 September 2016, agreeing that the Claimant could join the housing register at Band 2 .
8. By this stage, over the course of several weeks the Claimant had been phoning Greenwich on many occasions as well as sending many emails. These would be copied by the Claimant to many members of staff, including the Assistant Director of Housing. The Claimant was making various challenges in relation to both his homelessness application as well as his housing register application. He was also making complaints about how the process was being handled. These included allegations by the Claimant that members of the Greenwich team were racist and discriminating against him. As well as upsetting members of the staff this came to the attention of the Assistant Director of Housing. In this climate, it was decided a meeting would be held.
9. On 21 September 2016, this meeting took place between the homeless service team, the allocations team, the Assistant Director of Housing and the legal team. During this meeting, the extent of the Claimant's offending history was discussed as well as his past rent arrears. Although prior to this she did have access to this information, it was only at this stage that Ms Coral Sewell fully appreciated the seriousness of the Claimant's previous convictions. She had only found out about the past rent arrears the previous day. This led to the letter of 23 September 2016 suspending the Claimant from the housing register."