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Cite as: [2008] EWCA Civ 228

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Neutral Citation Number: [2008] EWCA Civ 228
Case No: B5/2007/2847(A)


Royal Courts of Justice
Strand, London, WC2A 2LL
12th March 2008

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Crown Copyright ©

    Lord Justice Mummery:

  1. This is a renewed application for permission to appeal. The application is made by Mr Sebastian Kornhauser in person.
  2. The decision which he wishes to appeal is that of Morgan J in the Chancery Division on 27 November 2007, when he dismissed an application by Mr Kornhauser against the Notting Hill Housing Trust in relation to a declaration which he sought that land was held in trust at 96 Harwood Road, Fulham Broadway, London SW6, and he wanted a declaration that he had interests in that property by virtue of the trusts.
  3. The dismissal of the application led Mr Kornhauser to apply to this court for permission to appeal. On 8 February I considered the application on the papers and refused permission on the ground that the proposed appeal had no real prospect of success. As he is entitled to do, Mr Kornhauser renews the application orally today.
  4. Since I made the order refusing permission there have been various events which shed more light on the dispute between Mr Kornhauser and the Notting Hill Housing Trust. On 11 February 2008, that is just three days after I had refused permission, the Notting Hill Housing Trust issued possession proceedings against Mr Kornhauser. They seek possession of 96b Harwood Road, London SW6, and according to the claim form the hearing has been fixed in the West London County Court on 17 March 2008, that is, next Monday. According to the claim form, Mr Kornhauser is in arrears with his rent to a total of £2,761.83. They say that he has not paid rent on a regular basis since March 2006. In those circumstances a mandatory possession order is sought against him on ground 8. It is alleged in the claim, among other things, that housing benefit received by or due to Mr Kornhauser has not been passed on to the Trust.
  5. Following the issue of those proceedings Mr Kornhauser issued an application notice in this court on 6 March 2008. His claim in the application notice is for an injunction restraining the Trust from entering his flat at 96 Harwood Road, and in the supporting evidence he gives details of an incident that is alleged to have occurred on 29 February 2008. The incident involved a changing of locks on the main entrance door because, the Trust said, a flat within the building had become vacant and they needed to change the locks to the front door for security reasons. The correspondence which is included in the papers refers to the suggestion of the Trust that they supply new keys to Mr Kornhauser in advance of the change of locks on the front door.
  6. Now in relation to the application today Mr Kornhauser has made a number of detailed arguments in the written submissions, and he has also made points in his oral submissions. It seems to me that his main point today is that it would be unlawful for the Trust to evict him from his flat, on the ground that the Trust manages premises and they are therefore bound by the provisions of the Disability Discrimination Act 1995, in particular Sections 22 and the following sections, which make it unlawful for a person managing premises to discriminate against a disabled person. Mr Kornhauser is registered disabled. He has been in occupation of his flat at 96 Harwood Road under a tenancy agreement with the Trust since November 1995. He claims that he is an assured tenant under that agreement, and his case, in brief, is that he, being a disabled person, is protected by the provisions of the 1995 Act against the Trust seeking to enforce their rights for a mandatory order for possession under ground 8 of the Housing Act 1988.
  7. Now on that point I have drawn Mr Kornhauser's attention to the decision of this court in Lewisham London Borough Council v Malcolm (Disability Rights Commission intervening) [2007] EWCA Civ 763. It came out in the most recent issue of the Weekly Law Reports Part 8, [2008] 2 WLR 369, and that case goes into the circumstances in which it might be unlawful discrimination for a landlord to seek possession against a tenant, in that case on the grounds of breach of a covenant against sub-letting. I have also mentioned to Mr Kornhauser that there has been a more recent case in this court in which judgment is shortly to be handed down which discusses the impact of the Lewisham v Malcolm case on the rights of the landlord, who is seeking to recover arrears of rent against a tenant suffering from a disability. I informed Mr Kornhauser that the Lewisham case has been listed for hearing in the House of Lords on 28 April, permission having been given by the House of Lords for the appeal. It appears that there is a question of general public importance involved as to what is the impact of the 1995 Act on the rights of landlords against disabled tenants who are not fulfilling obligations under the tenancy agreement. I have advised Mr Kornhauser that he might seek help in getting advice, assistance and representation through the Royal Courts of Justice Citizen's Advice Bureau, who have direct contact with the Free Representation Unit, the Bar Pro Bono Unit and the Solicitors Pro Bono Group, who are able to offer expert advice in cases that may be arguable to people who do not have representation.
  8. In this case the point that is raised by Mr Kornhauser is, in my view, not one for this court on an appeal from Morgan J's decision on the application of Mr Kornhauser that he had an equitable interest in the house. The point under the Disability Discrimination Act is one that ought to be raised in the proceedings for possession against him, and that is the claim that is being heard in the London County Court next Monday. Mr Kornhauser should go, with or without representation, to the court next Monday and advance to the district judge who is hearing the application his arguments under the Disability Discrimination Act; and he can draw the attention of the district judge to the Lewisham v Malcolm case if he is not already aware of it, which I suspect he is. It will be then for the district judge to decide whether the points raised by Mr Kornhauser are a defence to a possession claim based on the arrears of rent of over £2,700.
  9. I would not grant permission to appeal against the order of Morgan J on the Disability Discrimination Act point; it was not relevant to the claim that was before him, which was to an equitable interest.
  10. Turning next to that claim, the argument of Mr Kornhauser is that he has a beneficial interest under a trust in respect of the property, because the Notting Hill Housing Trust is a trust and he is entitled to occupation of property which is owned by the Trust. He has many criticisms of the Trust about the treatment of their tenants. He makes allegations of harassment, unfitness of accommodation and so on. In my judgment, however, there is no prospect of succeeding against the ruling of Morgan J that he should make no order on the claim for a beneficial interest. The claim is misconceived in law. The fact that the landlords are a trust does not give any beneficial rights in the property itself to people who have tenancy agreements from the Trust. The Trust is a charitable one, and the objects of the Trust are purposes which are charitable in law. It is not a trust for individual human beneficiaries. There is no question that the judge was right to dismiss the application made on the trust ground.
  11. Then Mr Kornhauser has points under the Convention and the Human Rights Act, saying he is entitled to protection of Article 8 and possibly Article 3 of the Convention, to which effect should be given in legal proceedings. Again, those are points which can be raised by Mr Kornhauser in the possession hearing next Monday. It is not for me to express any view in this court as to whether they are good points or bad points; they are simply not points that are relevant to the jurisdiction of this court. This court, as I explained to Mr Kornhauser, hears appeals from decisions of other courts; it does not make original decisions itself and it can only interfere with the decisions of other courts if they are wrong, and there is nothing wrong with Morgan J's judgment that Mr Kornhauser has no beneficial interest in the property of which he has a tenancy agreement.
  12. Mr Kornhauser raised many other points in the written submissions in addition to the equitable interest point and the Disability Discrimination Act point and the Human Rights Act point. As I understood it, he claims that he has rights of adverse possession because he has lived in the property for more than twelve years. That claim is misconceived. Rights can only be obtained by adverse possession by people who are in possession without the consent of the landlord or the landowner. In this case Mr Kornhauser has been in possession of the flat at 96 Harwood Road by virtue of a tenancy agreement, of November 1995. A person who is a tenant is not in adverse possession of the premises against the landlord, he is in possession because the landlord has agreed that he should be a tenant. So there is nothing in that point. As to allegations of unlawful harassment, threats of eviction, bad inadequate housing, of unsuitable housing, allegations of undue influence, arguments based on alleged carbon monoxide poisoning of occupants of property owned by the Trust, of abuse by employees of the Trust, I know of no reason why those are relevant to any application to this court. Again, I express no view about whether these allegations are true or not; I have not heard any evidence about them. If Mr Kornhauser wishes to raise these points in order to resist a possession order for arrears of rent, then the point at which he should raise them is at the hearing before the district judge in the West London County Court next Monday.
  13. Summing up, there is nothing in this case which could possibly support an appeal to this court from Morgan J's order. That is the only matter before the court. Morgan J was right to order on 27 November that Mr Kornhauser has no beneficial interest in the property. As to his tenant rights, as I have explained, those are matters which can be argued before the district judge in the West London County Court. They were not argued before Morgan J; they were not relevant to the claim before him.
  14. I am grateful to Mr Kornhauser for the assistance he has given. He produced an extremely helpful diagram which illustrated the relationship which he says exists between the scheduled provisions of the Housing Act 1988 and the mandatory grounds on which landlords are entitled to possession, and provisions in Section 22 and part 3 of the Disability Discrimination Act relating to protection of disabled people from unlawful discrimination by eviction. He also produced a letter from Baroness Hale of Richmond explaining to him that the Hague Convention on the law applicable to trusts and their recognition had been brought into effect and was incorporated into the United Kingdom law by the Recognition of Trusts Act 1987.
  15. For the reasons I have given, the law of trusts is not relevant to the dispute between Mr Kornhauser and the Notting Hill Trust.
  16. And finally, I have read the application for an injunction and the supporting evidence. For the reasons I have given, this court has no jurisdiction to entertain this application for an injunction. If the application is to be made at all it should be made in the court which is hearing the possession proceedings next Monday.
  17. I am going to give these back to Mr Kornhauser. I know Mr Kornhauser will be disappointed to learn therefore that in my judgment there is no real prospect of him succeeding in an appeal to this court from the order of Morgan J. That is the only point on which I have jurisdiction to hear his case. I therefore refuse the application.
  18. Order: Application refused

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