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||Neutral Citation Number:  EWCA Civ 1514
||Case No: B5/2014/1341
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL & SHOREDITCH COUNTY COURT
HHJ JOHN MITCHELL/HHJ MAY QC
Claim No. 2EC00023
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE CHANCELLOR OF THE HIGH COURT
LORD JUSTICE PATTEN
LADY JUSTICE GLOSTER
Jan Luba QC and Ms Catherine O'Donnell (instructed by Shelter Legal Services) for the Appellants
Jon Holbrook (instructed by Devonshires) for the Respondent
Hearing dates : 28th October 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
THE CHANCELLOR (Sir Terence Etherton)
- The appellants, Sikiru Lawal ("Mr Lawal") and his daughter Joyce Lawal (known as "Jaicee"), wish to challenge (1) the order for possession of their home, 1 Ashbrook Road, London N19 3DF ("the Property"), made by Her Honour Judge May QC on 25 July 2013 in the Central London County Court, and (2) the order of His Honour Judge Mitchell on 24 March 2014 dismissing the application of the appellants to set aside the order for possession and preventing or suspending execution of the warrant for possession of the Property. Their challenge is on the ground that the order for possession and the warrant are disproportionate and so infringe their rights under Article 8 of the European Convention on Human Rights ("the Convention").
The background facts
- Mr. Lawal is currently aged 76 and of Nigerian origin. He came to the UK in 1961 and married in 1964. In 1974 Mr. and Mrs. Lawal were granted a joint tenancy of the Property by the Holloway Tenant Co-operative ("HTC"). The Property is on three floors and comprises four bedrooms, two living rooms, a kitchen, a bathroom with lavatory, and another lavatory. In due course the tenancy became a secure tenancy under the Housing Act 1985 ("the 1985 Act"). In 1998 HTC ceased to be a co-operative and became a registered non-charitable housing association. HTC remained the landlord of the Property until 4 August 2005 when it sold the freehold to the respondent Circle 33 Housing Trust ("Circle 33").
- Mr and Mrs Lawal's six children were raised in the Property. Between 1976 and about 1981 Mr. Lawal was away from London a good deal for his work with British Rail. From the time of his father's death in 1981 Mr. Lawal spent most of his time in Nigeria, with the intention of finding and exploiting business opportunities there. Mrs Lawal and the couple's children continued living in the Property. Mr. Lawal kept in touch with his wife and children by telephone calls each week and making brief visits to them in the UK. Whenever he returned to the UK Mr Lawal lived at the Property.
- Mrs Lawal died in 2002. In the years following her death Mr. Lawal spent even less time in the UK. Jaicee spent significant amounts of time at the Property while living elsewhere and then returned to live at the Property in 2010. She and Mr Lawal are the only persons now living there.
- Circle 33 served a notice to quit to Mr. Lawal on 25 May 2011, which expired on 26 June 2011. Although Mr. Lawal was occupying the Property at the time of the notice to quit, Circle 33 considered that he was not occupying it as his "only or principal home" for the purposes of sections 79(1) and 81 of the 1985 Act, and that he had therefore lost his status as a secure tenant.
The possession action
- On 4 January 2012 Circle 33 commenced the present proceedings in the Central London County Court against Mr. Lawal, Jaicee, her sister Samantha and the estate of Mrs Lawal. For various reasons which it is not necessary to state, by the time of the trial Samantha and the estate of Mrs. Lawal had ceased to be active parties.
- So far as relevant to this judgment, Circle 33 claimed possession on the following three alternative grounds in its amended particulars of claim: (1) the tenancy had been surrendered by Mr. Lawal; (2) the tenancy was not secure and was terminated by the notice to quit because Mr Lawal did not occupy the Property at the date of the notice to quit as his only or principal home and so failed to satisfy "the tenant condition" in sections 79(1) and 81 of the 1985 Act (viz. that he occupied the Property as his only or principal home); (3) possession should be ordered for breach of the terms of the tenancy.
- Mr Lawal and Jaicee served a joint defence. In it Jaicee acknowledged that she occupied as a licensee of her father and stated that she did not assert any independent rights of occupation. So far as relevant to this judgment, Mr Lawal (1) asserted that he had never surrendered his secure tenancy, (2) denied that the notice to quit was effective, (3) asserted that his secure tenancy subsisted because he had at all material times occupied the Property as his only home and, in particular, at the date of expiry of the notice to quit, and (4) denied breaches of his tenancy.
Judge May's decision
- The trial took place before Judge May on 23, 24 and 25 July 2013. The appellants, who gave oral evidence, represented themselves. Circle 33 was represented by counsel, Mr. Jon Holbrook, who also appeared before us. At the trial the principal focus was on the first two grounds of possession put forward by Circle 33: surrender and termination by notice to quit.
- Circle 33 argued that Mr. Lawal had surrendered his tenancy in January 2003 when, following Mrs. Lawal's death, Jaicee and Samantha signed an agreement to succeed to the tenancy. They subsequently behaved as tenants would, by paying the rent and applying to purchase the Property in March 2003, an application which was eventually not pursued. Judge May rejected the surrender allegation. She found that Mr. Lawal had remained the sole tenant of the Property throughout but that he had left the administration of the Property in the hands of his daughters while he was away in Nigeria.
- On the issue whether Mr. Lawal had been occupying the Property as his "only or principal home" within the meaning of section 81 of the 1985 Act, Judge May had regard particularly to the following matters: (1) Mr. Lawal's evidence that he went "home" to Nigeria to seek work in 1981 after his father's death and from then until 2002 was living and pursuing work opportunities in Nigeria, making brief visits back to see his family; (2) the statement in a letter dated 10 January 2003, apparently bearing Mr Lawal's signature, recording that he had been living up to then in Nigeria; (3) Mr Lawal's evidence that, after his wife's death, he had "increased" the amount of time he spent in Nigeria; (4) the fact that in the 70 months before the expiry of the notice to quit Mr. Lawal had spent just seven months in the UK, for no more than one and a half months at a time; and (5) Mr. Lawal's daughters had assumed responsibility for the Property for eight years prior to the notice to quit conducting themselves as the tenants, paying rent and applying to exercise a "right to buy" in their names. Judge May also found that Mr Lawal intended to return promptly to Nigeria after July 2011 but he then stayed in London only because the possession proceedings had been issued.
- Taking into account those matters and all the other evidence, Judge May concluded that the Property was not Mr Lawal's only or principal home in July 2011 and had not been for some considerable time before that. Mr Lawal had, therefore, ceased to satisfy the tenant condition in sections 79 and 81 of the 1985 Act and, accordingly, he had lost his status as a secure tenant. It followed that Circle 33 had validly terminated the tenancy by serving the notice to quit and was entitled to possession.
- In Jaicee's oral closing submissions for herself and her father, the appellants had for the first time advanced a defence under Article 8 of the Convention but Judge May did not make any reference to that defence in her judgment.
- At the end of the trial on 25 July 2013 Judge May ordered possession of the Property on or before 5 September 2013.
The appeal from Judge May's order
- On 16 August 2013 the appellants, still acting in person, filed a notice of appeal from Judge May's order, in which they sought permission to appeal on a number of grounds. The only ground relevant to this appeal was as follows:
"When Proportionality within the meaning of article 8 was put forward, Judge May QC failed to consider the ruling of the Supreme Court, in the case that under the European Convention on Human Rights a court must assess the 'proportionality' i.e. a tenant's circumstances before making a possession order. No mention was made about the fact that [an] order for possession would leave Mr. Lawal homeless, as though the onus was on him to prove [the Property] is his sole and principal home, no evidence was brought at all by the Claimant that he had another home in the UK or overseas".
- Permission was refused on the papers by Sir Stanley Burnton. The appellants requested that permission be reconsidered at an oral hearing. On 12 November 2013 Arden LJ heard the application. Jaicee appeared in person and on her father's behalf. Arden LJ dismissed the renewed application but made the following observations in respect of the Article 8 defence:
"16. I am bound to say that there must be a correlation between any right to respect for home and the judge's finding that the home at Ashbrook House was not a principal home. In favour of Article 8 is, of course, the point that Mr. Lawal has lived in the property for some 39 years and is now 76; in other words, a long-time connection with the property. But as against that, of course, it has to be said that the judge had found it was not his principal home and that is a point on which I cannot give permission to appeal.
17. However it is, in my judgment, a point that Mr. Lawal was entitled to have considered by the Court and if it was not considered by the Court on making the possession order it would, it seems to me, have been the judge's intention that it should have been dealt with before a warrant for possession was issued.
18. It appears a warrant for possession has been issued. I have had a brief look at the Rules while in court and … it seems to me … that the person in actual occupation of [the Property] should have received notice of proceedings to get a warrant for possession. …[I]t seems to me that there must be the possibility that there was some procedure then or now capable of being used in the county court for the purpose of having that claim adjudicated upon. …
19. If there is a procedural requirement, as I believe there was, in the Shoreditch County Court, then as I see it that requirement will be very closely connected with the notice of appeal which is before the court and it may be a matter which can be brought within it. What I propose to do is to grant a stay for 14 days to allow Mr. and Ms. Lawal to investigate whether or not there is a procedure within the Shoreditch County Court for them to raise the Article 8 point by way of asking for the warrant for possession to be rescinded or varied, or for further time to be given. Only if that procedure is not available would there be any question of any further consideration by this court which would have to be by way of letter to the court."
- Arden LJ's sealed order dated 13 November 2013 stated that: (1) the application for permission to appeal and a stay of execution was refused, and (2) a stay was granted for 14 days to enable the appellants to ascertain from the County Court whether they could apply in respect of their Article 8 claim and, if not, to file a further notice of appeal in respect of that refusal or (if so advised) to seek to reopen the appeal.
The appellants' November 2013 application and Judge Mitchell's decision
- On 22 November 2013 the appellants applied to set aside the possession order made by Judge May under CPR 3.1(7) and to prevent or suspend execution of the subsequent warrant of possession ("the November 2013 application"). They each made a further witness statement in support of that application. The application came before Judge Mitchell in the Clerkenwell and Shoreditch County Court on 12 February 2014. The appellants were represented by counsel, Catherine O'Donnell, who submitted that: (1) Judge May's order should be revoked or varied because she either failed to deal with the Article 8 point or refused to allow the defence to be introduced; (2) enforcing the warrant of possession would be a violation of the appellants' right to respect for their home under Article 8.
- In a reserved judgment handed down on 24 March 2014 Judge Mitchell dismissed the November 2013 application.
- He dismissed the application under CPR 3.7(1) to vary or revoke Judge May's possession order because there had been neither a material change in circumstances since that order was made nor any misstatement or omission in the material placed before Judge May and so any complaint about Judge May's order was properly confined to an appeal.
- On the issue of the stay or suspension of the warrant on Article 8 grounds, Judge Mitchell rejected Circle 33's argument that the application should be dismissed as an abuse of process because the Article 8 argument should have been raised at trial and for various other reasons. He did so because he felt bound by Arden LJ's observation on the application for permission to appeal Judge May's order that Judge May had probably intended that the Article 8 issue could be raised at the enforcement stage.
- Turning to the merits of the Article 8 argument, Judge Mitchell identified three issues: (1) was eviction disproportionate and unnecessary on the facts of the case; (2) what, if any, order, including suspension of the warrant, would be proportionate; and (3) did section 89 of the Housing Act 1980 ("the 1980 Act") prevent the court from postponing possession, whether by suspending the possession order or refusing execution of the warrant of possession?
- On the first of those issues, Judge Mitchell said that Circle 33 was under a charitable duty to provide housing to those in need and that it was likely to make its properties available to those for whom the local authorities owe a duty under the Housing Act 1996. He said that, if possession was to be refused under Article 8, the appellants would be under-occupying a property much needed by people who would qualify for it under the housing legislation.
- Judge Mitchell considered Jaicee fell "far short" of being able to show disproportionate interference with her Article 8 rights. He considered that her ill health was not of such a nature to qualify her as having a priority need for housing. He said that she may well not be able to afford to rent privately, but that would make her position no different from that of many young people in London.
- Judge Mitchell found Mr. Lawal's case under Article 8 was stronger. He accepted that Mr. Lawal was in ill health, required assistance with household tasks and was in receipt of attendance allowance. He said that it was arguable that Mr. Lawal's right to a home included his right to have Jaicee live with him as a full-time carer. He considered, however, that Mr. Lawal had not established that he would necessarily be homeless if evicted from the Property and that his extended family could not visit him if he moved to another property. Judge Mitchell placed particular emphasis on the fact that Mr. Lawal had spent only ten of the seventy months prior to the notice to quit at the Property and therefore that his then connections with the neighbourhood and the Property were of very short duration.
- Having set out the merits of each party's case under Article 8, Judge Mitchell turned to the second and third issues, which in his view had to be considered before deciding the proportionality issue.
- On the third issue, he remarked that:
"assuming that it is for [Circle 33] to prove that possession would not be disproportionate, [Mr. Lawal and Jaicee] can reasonably be expected to indicate which, if any, of these two alternatives [granting an extended period for possession or suspending the order for possession on the happening of an event] would be proportionate and to provide some detail, for example, of the length of the period or terms of the suspension"
- Judge Mitchell observed that Mr. Lawal's suggestions that he be provided with suitable accommodation or be permitted to remain at the Property indefinitely fell short of the detail expected of him. Judge Mitchell said that "suitable" accommodation had not been defined, other than by saying it would be a two-bedroom property, and that questions such as what type and duration of tenancy or licence, what amount of rent, and the extent of the landlord's obligations had remained unanswered.
- The third issue concerned the impact of section 89(1) of the 1980 Act, which reads:
"where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order."
- Judge Mitchell considered himself bound by the view expressed by the Supreme Court in LB Hounslow v Powell  UKSC 8,  2 AC 186 ("Powell"), that section 89(1) could not read down under section 3(1) of the Human Rights Act 1998 ("the HRA 1998") so as to provide a longer period of postponement than six weeks in a case where that would otherwise be required to give effect to the Article 8 right of an occupier. Six weeks since Judge May's possession order had by then expired.
- Further, Judge Mitchell said that he was unable, as a circuit judge sitting in the County Court, to make a declaration of incompatibility under section 4 of the HRA 1998.
- Consequently, Judge Mitchell dismissed the appellants' November 2013 application on all grounds and refused permission to appeal.
The appeal from Judge Mitchell
- The appellants filed a notice of appeal dated 9 April 2014 from Judge Mitchell's order. On 14 April 2014 Asplin J granted permission to appeal, transferred the appeal to the Court of Appeal pursuant to CPR 52.14 and suspended the warrant for possession pending determination of the appeal.
- The stated grounds of appeal are as follows:
(1) Judge Mitchell misdirected himself in finding that it was not possible for the county court to prevent or suspend execution of a warrant for possession on the grounds that execution would be a breach of the appellants' rights to respect for their home under Article 8.
(2) In so far as Judge Mitchell proceeded on the alternative basis that he had jurisdiction to consider such Article 8 rights his approach was flawed in that he:
(a) failed to take into account that Circle 33 was a housing trust (not a local housing authority) and adapt the approach taken by the Supreme Court in Manchester City Council v Pinnock accordingly;
(b) put the onus on the appellants to establish how long it would be proportionate to allow them to remain in the Property and on what terms. The correct question was whether evicting them immediately was proportionate as at the date of the hearing.
(3) In so far as the Judge proceeded on the alternative basis that he had jurisdiction to consider such Article 8 rights, his approach was flawed in that he took into account the following irrelevant considerations: (i) the fact that the possible location of any alternative accommodation Mr Lawal might accept and the statutory basis and terms of any occupation agreement were unknown; and (ii) the terms on which the Mr Lawal would remain in the Property if allowed to do so by the court were unknown and he might continue to occupy the Property on the same terms as previously.
- Circle 33 has filed a respondent's notice seeking permission to uphold the decision of Judge Mitchell on the additional ground that the appellants' November 2013 application was an abuse of process.
The application under CPR 52.17
- By an application notice dated 11 September 2014 the appellants applied for an order under CPR 52.17 re-opening the appeal from Judge May's order for possession so that the application for permission to appeal on the Article 8 ground might be reconsidered.
- That application was listed to come on for hearing at the same time and before the same Court of Appeal constitution as the appeal from Judge Mitchell's dismissal of the appellants' November 2013 application.
The appellants' submissions
- Mr Jan Luba QC, for the appellants, emphasised at the outset of his submissions that the appeal from Judge Mitchell's order was very much secondary in importance to the application to re-open the appeal from Judge May's order. As he explained, in his attractive and well-drafted submissions, it is only by re-opening the appeal to set aside Judge May's possession order that (1) the appellants can put themselves back into a position in which they would be able to argue, before the grant of a possession order, that no such order should be made because it would infringe the appellants' Article 8 rights, and (2) the appellants would in that way be able to overcome the time limitation on any stay or suspension of an order for possession by virtue of section 89(1) of the 1980 Act.
The application under CPR 52.17
- The application to re-open the appeal from Judge May's order is made pursuant to CPR 52.17. CPR 52.17(1) specifies three pre-conditions to the re-opening of an appeal. It provides as follows:
"52.17(1) The Court of Appeal or the High Court will not re-open a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy."
- CPR 52.17(2) provides that "appeal" in CPR 52.17(1) includes an application for permission to appeal. The appellants submit that all three conditions in CPR 52.17(1) are satisfied on the facts of the present case. The matters relied upon by them are as follows.
- It has never been in dispute that Jaicee raised the issue of proportionality under Article 8 in her oral closing submissions before Judge May. The point was not addressed at all in Judge May's formal judgment. The transcript of the proceedings before Judge May on Wednesday 24 July 2013, the second day of the trial before her, has only very recently been obtained by the appellants. It discloses that, when Jaicee asked Judge May to consider proportionality within the meaning of Article 8, Mr Holbrook objected. He said that the point had not been pleaded, no evidence had been given by either party to address it, and it was a completely new issue. He said that, if Judge May was to entertain submissions on Article 8, Circle 33 would have to apply for an adjournment and he would have to place before Judge May relevant authorities. Judge May is recorded as saying:
"the circumstances which I need to take into account in deciding whether [the Property] is [Mr Lawal's] only or principal home are very, very similar to the sorts of circumstances that I would be weighing up in order to decide any kind of Article 8 right to family life or proportionality in making the possession decision. So I cannot actually at the moment see the question as being separate. To the extent that I am being invited to consider them as separate then I agree with [Mr Holbrook] it raises a whole new arena that we are not entering into in this trial…. I do not think that Article 8 is going to assist me, its actually going to involve me deciding anything different than the key issues in this case."
- Among their grounds of appeal from Judge May's order the appellants, then acting as litigants in person, said that Judge May had failed to address properly the issue of proportionality under Article 8.
- Notwithstanding that clear indication from Judge May, Jaicee did go on to ask Judge May to take into consideration that Mr Lawal was a 76 year old retired man with little means of supporting himself in private accommodation and that, in the then economic crisis, it would put too much of a burden to finance a move. She went on to elaborate upon her own position and the family's connections with the Property.
- Sir Stanley Burnton refused permission to appeal on the papers on 7 November 2013 without any mention of the Article 8 ground of appeal. As mentioned above, the point was addressed by Arden LJ. She did not, of course, have the benefit of a transcript or any other contemporaneous record of the exchanges between Jaicee and Judge May on the Article 8 point. It is clear, however, that Arden LJ proceeded on the basis that Jaicee had raised the Article 8 point before Judge May and that Mr Holbrook had objected. Arden LJ accepted that the Article 8 point was one which Mr Lawal "was entitled to have considered by the Court and if it was not considered by the court on making the possession order it would… have been the Judge's intention that it should have been dealt with before a warrant for possession was issued".
- The appellants' case is that Arden LJ should, even on the limited information before her, have granted permission to appeal on the Article 8 point. Mr Luba submitted that the transcript of the proceedings before Judge May shows clearly that, not only should permission to appeal have been granted, but that an appeal on the Article 8 point would inevitably have been successful. He submitted that the transcript shows that Judge May made two important errors in her approach. The first mistake is said to be a point on timing, namely that Judge May failed to appreciate that the status of Mr Lawal as a secure tenant and so his satisfaction of the tenant condition in section 81 of the 1985 Act had to be ascertained as at the date of expiry of notice to quit whereas the requirement of proportionality under Article 8 was to be satisfied as at the date of the trial. Second, Mr Luba submitted that Judge May had failed to appreciate an important difference in the burden of proof in relation to satisfaction of the tenant condition, on the one hand, and satisfaction of the proportionality requirement under Article 8, on the other hand. Mr Luba said that, in relation to the question of Mr Lawal's occupation of the Property as his only or principal home, the evidential burden had shifted to Mr Lawal by virtue of his frequent and prolonged absences. Mr Luba said, by contrast, that the burden was on Circle 33 to satisfy the court that it was proportionate to evict Mr Lawal from the Property.
- Arden LJ, in the absence of any transcript of the proceedings before Judge May and in the absence of Circle 33 and of any legal representative for the appellants, took what appeared to be a pragmatic course. She considered that it was possible that there was some procedure which the appellants could still use in the county court to raise their Article 8 point at the enforcement stage of the order for possession, by asking for the warrant for possession to be rescinded or varied or for further time to be given. She therefore proposed to grant a stay for 14 days for the appellants to investigate whether there was a procedure in the Clerkenwell and Shoreditch County Court enabling the appellants to raise the Article 8 point in that way. She said:
"…. only if that procedure is not available would there be any question of any further consideration by this court which would have to be by way of a letter to the court".
- It is against that set of circumstances, and Judge Mitchell's dismissal of the appellants' November 2013 application, that Mr Luba submitted that the three conditions in CPR 52.17 are satisfied.
- As to 52.17(1)(a), Mr Luba submitted that it is necessary to re-open the appeal from Judge May's order in order to avoid the real injustice of the appellants being unable to advance their Article 8 argument, which (1) had been placed before Judge May but which she appears to have declined to hear on the basis of some fundamental misconceptions as to timing issues and burden of proof and (2) Judge Mitchell had no jurisdiction to entertain because of the six week time bar in section 89(1) of the 1980 Act.
- As regards CPR 52.17(1)(b), Mr Luba submitted that the circumstances are exceptional and make it appropriate to re-open the appeal due to a combination of unique circumstances. He emphasised that the appellants, acting as litigants in person, had raised the Article 8 point before Judge May, who had simply failed to deal with it in any substantive or proper way. Furthermore, Arden LJ had, in effect, sent the appellants away to pursue a remedy, which never in reality was ever going to lead to a solution to the failure of Judge May to address the Article 8 point. It was never going to provide a solution, he submitted, because the time limit of six weeks specified in section 89(1) of the 1980 Act had already expired long before the appellants could have made an application to prevent enforcement of the possession order. Powell was clear authority that it was not possible to read down the provisions of section 89(1) under section 3(1) of the HRA 1998 to enable the court to postpone beyond the statutory six weeks maximum the execution of an order for possession of a dwelling which was not let on a secure tenancy. Furthermore, no county court judge would be able to make a declaration of incompatibility under section 4 of the HRA 1998, a declaration which the Supreme Court had itself declined to make in Powell. Mr Luba also submitted that any application to a county court at the enforcement stage to set aside Judge May's order under CPR 3.1(7) was bound to fail since that would amount to an impermissible overturning of an order of one judge by another judge of the same level rather than by way of an appeal.
- As to CPR 52.17(1)(c), Mr Luba submitted that there had never been an effective remedy for the appellants otherwise than by way of an appeal to set aside the order of Judge May. For the reasons already given, the alternative route suggested by Arden LJ of an application to the county court at the enforcement stage was never going to provide an effective remedy. Mr Luba emphasised that, irrespective of the jurisdictional constraints imposed by section 89(1) of the 1980 Act, suspension or a stay of the warrant for possession was never going to be an adequate remedy since Mr Lawal was entitled, by virtue of his Article 8 rights, not merely to a temporary stay or suspension of the eviction process but to resist the making of any order for possession at all at the date of the trial before Judge May and the hearing by Judge Mitchell of the appellants' November 2013 application. In that connection he relied upon the following passage in the judgment of Lord Phillips in Powell at paragraph :
"103. In any situation where the judge dealing with an application for a possession order has power to refuse to make the order on the ground that it would infringe article 8, no question of incompatibility can arise in relation to section 89. That section merely increases the options open to the judge. He can (i) make an immediate order for possession; (ii) make an order the operation of which is postponed up to the limit permitted by section 89; (iii) refuse to make the order on the ground that it would infringe article 8. the clear limit on the judge's discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged."
- For the same reason, Mr Luba submitted that proceedings to judicially review any future decision of Circle 33 to continue the process of eviction, for example by applying for a fresh warrant for possession, would be inadequate to provide the remedy to which the appellants were and are entitled, namely the right to continue to remain in occupation of the Property without any order for possession in place at all.
The appeal from Judge Mitchell
- There is no appeal from the dismissal by Judge Mitchell of the appellants' application under CPR 3.1(7) to set aside Judge May's order for possession of the Property. As I have said, the appellants agree with, and indeed rely upon, that dismissal in support of their application under CPR 52.17.
- The first ground of appeal is that Judge Mitchell misdirected himself in finding that it was not possible for the county court to prevent or suspend execution of a warrant for possession on the ground that execution would be a breach of the rights of the appellants to respect for their home under Article 8. Mr Luba asked us to reject this ground of appeal and, accordingly, also to dismiss the appeal itself. Mr Luba said that Judge Mitchell was correct to conclude, in the light of section 89 of the 1980 Act, that he had no power to suspend or stay the order for possession because the six week period specified in section 89(1) had already expired and he had not power to extend it. Mr Luba said that, although not strictly binding because it was obiter, Judge Mitchell clearly had to follow the decision in Powell that, in the face of the clear language of section 89(1) , any reading down of the section to enable the court to postpone the execution of an order for possession of a dwelling which was not let on a secure tenancy for a longer period than the six weeks would go beyond what is permitted by section 3(1) of the HRA 1998: see Powell at para .
- Judge Mitchell correctly recognised that, as a circuit judge in the county court, he had no power to make a declaration of the incompatibility of section 89(1) with Article 8: HRA 1998 s.4(5). Mr Luba conceded that this court is also unable to make a declaration of incompatibility. As the court of appeal, it has jurisdiction to do so under the HRA 1998 s.4(5), but no notice has been served on the Crown in accordance with HRA 1998 s.5, CPR 19.4A, PD19A para 6 and Donoghue v Poplar Housing and Regeneration Community Association Limited  EWCA Civ 595,  QB 48, at .
- The Supreme Court declined to make a declaration of incompatibility in Powell because no evidence had been put forward in that case to show that in practice the maximum period of six weeks specified in section 89(1) is insufficient to meet the needs of cases of exceptional hardship. Mr Luba submitted that the present case is one where, by contrast, at the time of the hearing before Judge Mitchell and at the present time the period of six weeks was and is plainly insufficient to meet the Article 8 needs of Mr Lawal. Mr Luba submitted that, in those circumstances, although the appeal should be dismissed, permission should be given for the appellants to appeal to the Supreme Court to enable the appellants to make an application there for a declaration of incompatibility.
- Mr Luba submitted that, since Judge Mitchell was bound to dismiss the appellants' November 2013 application on the ground that section 89(1) of the 1980 Act deprived him of any jurisdiction to say or suspend the warrant for possession, Judge Mitchell's analysis and decision on the substantive merits of the appellants' Article 8 argument were strictly obiter and academic. The appellants nevertheless advance further grounds of appeal on the basis of the following matters which are said to be errors in principle in the reasoning and analysis of Judge Mitchell on the Article 8 proportionality issue.
- The first of those further grounds of appeal is that Judge Mitchell failed to take into account that Circle 33 was a housing trust and not a local housing authority.
- In Pinnock the Supreme Court held that, where the person seeking possession is a local authority, the proportionality of making an order for possession will be supported both by the fact that it would serve to vindicate the authority's ownership rights and also, at least normally, by the fact that it would enable the local authority to comply with its duties in relation to the distribution and management of its housing stock including, for example, the fair allocation of its housing, the re-development of the site, the refurbishing of substandard accommodation, the need to move people who are in accommodation that exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing: Pinnock at . It held that the fact that a local authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a very strong factor in support of the proportionality of making an order for possession: Pinnock at  and . Accordingly, in the great majority of cases involving a local authority landlord where a residential occupier has no contractual or statutory protection, the onus is on the defendant to satisfy the court that an order evicting the defendant is not a proportionate means of achieving a legitimate aim, and the threshold for raising an arguable case on proportionality is a high one: Powell at .
- The appellants contend that Judge Mitchell wrongly applied those principles to Circle 33 even though it is not a local authority. Judge Mitchell made various assumptions as to the duties and practices of Circle 33 in relation to the allocation of their properties and as to Mr Lawal's likelihood of obtaining alternative accommodation, if evicted from the Property. Mr Luba submitted that, in the absence of any evidence adduced by Circle 33 on those matters, Judge Mitchell was not entitled to make the assumptions he did.
- Mr Luba's case was that, Circle 33 not being a local authority, it bore the burden of establishing the proportionality of evicting Mr Lawal from the Property. He submitted that, in the absence of evidence as to such matters as the demands on its housing stock, its allocation policy, the respective priority needs of the appellants and others and the availability or otherwise of suitable alternative accommodation for the appellants, Judge Mitchell could not properly have concluded that Circle 33 had discharged the burden of establishing proportionality under Article 8.
- The appellants' second ground of complaint about Judge Mitchell's analysis of the Article 8 proportionality requirement is that he wrongly put the onus on the appellants to establish how long it would be proportionate to allow them to remain in the Property and on what terms. The appellants' case on this point is that the correct question which Judge Mitchell ought to have addressed was whether it was proportionate to evict the appellants in the circumstances that existed at the date of the hearing. They submit that, in the light of Mr Lawal's physical and mental health and the absence of any evidence of suitable alternative accommodation for him at the time of the hearing, it was not proportionate for there to be any order for possession or enforcement of any order for possession and that would continue to be the situation unless and until circumstances changed so as to make eviction proportionate. In any event, Mr Luba observed, it was clear that expiry of the six week period in section 89(1) of the 1980 Act made any speculation as to the length of time that the appellants ought properly to be allowed to remain at the Property entirely irrelevant.
- The next criticism of the appellants about Judge Mitchell's Article 8 proportionality analysis is that he took into account irrelevant considerations, namely (1) the fact that the possible location of any alternative accommodation Mr Lawal might accept and the statutory basis and terms of any occupation agreement were unknown because the appellants had entirely failed to address those matters in their evidence (other than a concession that the alternative accommodation would be a two bedroom property), and (2) if Mr Lawal was allowed to remain in occupation of the Property, that would be as a licensee on the same terms as before even though he had no right to occupy.
- Mr Luba submitted that the first of those matters was irrelevant because the correct approach under Article 8 is to focus on the occupier's home rather than on any particular alternative home which might be available for the occupier if evicted. He referred to the judgment of Lord Neuberger MR in West Kent Housing Association Limited v Haycraft  EWCA Civ 276,  HLR 23, with which the other members of the Court of Appeal agreed. He referred, in particular, to the following observation of Lord Neuberger at para :
"However, on the facts of this case, he may well have to be re-housed with his wife and child anyway. Further, and more generally, this is, in my view, not a significant factor so far as the art.8 proportionality argument is concerned. First, Article 8 is primarily concerned with respect for his particular home, as opposed to a general right to be provided with a home."
- As to the second of the matters said by the appellants to be an irrelevant consideration, Mr Luba submitted that Judge Mitchell was incorrect to say that, if Mr Lawal were permitted to remain in occupation of the Property, he would be a licensee. He submitted that Mr Lawal would be a tolerated trespasser but that would present no legal or practical difficulty since he would continue to be liable to pay Circle 33 compensation for use and occupation of the Property. He submitted that the point was, in any event, entirely irrelevant to the question of the proportionality of evicting Mr Lawal at the date of the hearing before Judge Mitchell.
The application to re-open the appeal from Judge May
- Neither Mr Luba nor Mr Holbrook referred us to any authority on CPR 52.17. The following principles relevant to its application to this appeal appear from Re Uddin (A Child)  EWCA Civ 52,  1 WLR 2398, and Guy v Barclays Bank plc  EWCA Civ 1396,  1 WLR 681. First, the same approach applies whether the application is to re-open a refusal of permission to appeal or to re-open a final judgment reached after full argument. Second, CPR 52.17(1) sets out the essential pre-requisites for invoking the jurisdiction to re-open an appeal or a refusal of permission to appeal. More generally, it is to be interpreted and applied in accordance with the principles laid down in Taylor v Lawrence  EWCA Civ 90,  QB 528. Accordingly, third, the jurisdiction under CPR 52.17 can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined. The paradigm case is where the litigation process has been corrupted, such as by fraud or bias or where the judge read the wrong papers. Those are not, however, the only instances for the application of CPR 52.17. The broad principle is that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation. Fourth, it also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality.
- The history of the litigation process in the present case is, in some respects, exceptional. On the oral renewal of the application for permission to appeal Judge May's judgment, Arden LJ said that the appellants were entitled to have their Article 8 defence considered by the Court. I agree with her. The appellants having advanced the Article 8 argument before Judge May and she having given no reason in her judgment for refusing to deal with it, I can see the force of the appellants' submission that they were entitled to permission to appeal on the point.
- Arden LJ was in a difficult position. She was not shown any transcript of the proceedings before Judge May. The appellants were representing themselves before her. No one appeared for Circle 33. She decided to take the pragmatic course of suggesting to the appellants that they explore the possibility of raising the Article 8 point at the stage of enforcement of the possession order if that were possible. What she did not appreciate was that section 89(1) of the 1980 Act deprived the county court of any jurisdiction to stay or suspend the possession order because more than six weeks had passed since the possession order was made. It is now common ground between the parties that there was no power under CPR 3.1(7) for a county court to set aside Judge May's possession order. In those circumstances, but unknown to Arden LJ, the county court had no power to entertain the appellants' Article 8 defence at the enforcement stage.
- Arden LJ envisaged that, should that prove to be the case, the appellants would be able to return to the Court of Appeal to re-open the application for permission to appeal. She made no reference, however, to the exceptional and restricted circumstances for invoking CPR 52.17. It seems highly likely that, had she been conscious of the difficulties of re-opening the application for permission to appeal pursuant to CPR 52.17 and that the county court had no power to entertain the appellants' Article 8 defence at the enforcement stage, she would have granted permission to appeal on the Article 8 point.
- Unusual as those facts are, the appellants' reasons for re-opening the application for permission to appeal Judge May's possession order amount, on one view, to no more than a criticism that Arden's LJ's decision to refuse permission to appeal was wrong. That is not enough to invoke the Taylor v Lawrence jurisdiction.
- In any event, I consider that the pre-conditions specified in CPR 52.17(1) are not satisfied in the present case. The injustice which Arden LJ identified was a situation in which there was no consideration by the court of the merits of the appellants' Article 8 argument before the appellants were evicted from the Property. In the event, however, the appellants' Article 8 argument has been considered on its merits by Judge Mitchell and dismissed.
- Before turning to the various criticisms advanced by Mr Luba, it is important to note that Mr Lawal and Jaicee both made further witness statements in support of their November 2013 application. Neither they nor Circle 33 sought to adduce oral evidence or to cross-examine any witness. Judge Mitchell neither refused any request for permission to adduce further evidence nor ordered the exclusion of any evidence.
- Turning to the appellants' criticisms of Judge Mitchell's judgment, I do not accept Mr Luba's submission that Judge Mitchell wrongly failed to make a distinction between a local authority and Circle 33 in applying the analysis in Pinnock and Powell that, in the case of possession proceedings by a local authority, (1) the evidential burden lies in the first instance on the defendant to satisfy the court that an order for evicting the defendant is not a proportionate means of achieving a legitimate aim, and (2) the threshold raising an arguable case on proportionality is a high one. The need to make a distinction between local authorities and Circle 33 was not an argument that was advanced by the appellants at the hearing before Judge Mitchell.
- Circle 33 is a social landlord. It is a non-profit organisation whose object is to provide low cost housing for people of modest means who might not be able to afford to rent in the private sector. It is a public authority for the purposes of the Human Rights Act 1998. The claimant in Pinnock was a local housing authority but the Supreme Court stated expressly in Pinnock (at para. ) that its judgment applied equally to other social landlords to the extent that they are public authorities under the HRA 1998. That point was also made clear in paragraph  of its judgment. In Powell Lord Hope, with whom the other Justices agreed, stated (at ) that both local authorities and other social landlords hold their housing stock for the benefit of the whole community, and that great weight must be given to their decisions as to how that stock should best be administered, decisions which the court is not equipped to make.
- In R(Weaver) v London & Quadrant Housing Trust  EWCA Civ 587,  1 WLR 363, the Court of Appeal dismissed an appeal from the Divisional Court of the Queen's Bench Division, which had held that the management and allocation of housing stock by the registered social landlord (including decisions concerning the termination of a tenancy) were functions of a public nature, with the effect that it was to be regarded as a public authority in that respect for the purpose of judicial review. Elias LJ stated as follows at paragraph :
"RSLs also have an important role in assisting local authorities to carry out their statutory housing policies. This is not simply a matter of choice but is the subject of legislation. A local authority must allocate houses in accordance with certain priorities. They are required by law to make an allocation scheme, and RSLs are the only body which they are statutorily obliged to consult before adopting a scheme. Section 170 of the 1996 Act requires RSLs to co-operate with local authorities if requested "to such extent as is reasonable in the circumstances" by offering accommodation to those with priority under the local authority's allocation scheme. Typically this co-operation is achieved by nomination agreements made between the authority and the RSL. In this way the RSL is deeply involved in assisting the local authorities in their obligations towards the homeless. Over half (some 54%) of RSL lettings in England are made to local authority nominees. A further 10% are made through allocations made pursuant to a common scheme in which the RSL and local authority are partners."
- In Haycraft the Court of Appeal made no distinction between the position of the claimant housing association and a local authority in the application of the Pinnock and Powell principles.
- Mr Luba submitted that there is a wide range of social landlords and it would be wrong to assume that no distinction can be made between them in relation to the principles laid down in Pinnock and Powell. He did not, however, elaborate on that point and did not suggest how they should be categorised for this purpose and, in particular, why Circle 33 was to be treated as falling within a category different from the general body of social landlords mentioned in Pinnock, Powell, and Weaver. While I have no doubt that it would be helpful and best practice for a social landlord such as Circle 33 to provide brief details of the matters on which Mr Luba submitted evidence should have been adduced in the present case relating to Circle 33's housing functions and policies, I do not accept that Judge Mitchell was wrong in the present case to follow the statements in Pinnock and Powell that the same principles as to Article 8 proportionality apply to both local authorities and other social landlords.
- Further, I agree with Mr Holbrook that, even in the absence of direct evidence, Judge Mitchell was entitled to take judicial notice that there is a great need for social housing in inner London and that Circle 33 is likely to make its properties available to those for whom the local housing authorities owe a duty under the Housing Act 1996.
- Judge Mitchell was, therefore, correct to start with the strong presumption that granting possession of the Property to Circle 33 would not be pursuant to an illegitimate aim or disproportionate for the purposes of Article 8.
- It is to be noted that, in addition to that strong presumption, there is evidence, to which Judge Mitchell referred in his judgment, that the four-bedroom, two-living room Property is in excess of the needs of the two appellants.
- Judge Mitchell was entitled to find, having regard to those matters and all the evidence, that an order for possession of the Property and the eviction of the appellants were for a legitimate aim and a proportionate means of achieving it.
- The evidential burden was, therefore, on the appellants to show that their eviction would be disproportionate. Judge Mitchell was plainly right to conclude that they did not discharge that evidential burden. The criticisms made by the appellants of his judgment – that he put the onus on them to establish how long it would be proportionate to allow them to remain the Property and on what terms, and that he took into account irrelevant considerations – are all beside the point since he was right to say the onus was on them and he was right to point out the kind of matters which they might have been expected to say and do in order to discharge that onus. Moreover, he was entitled to conclude that, if eviction went ahead, Mr Lawal would not necessarily be homeless. Even if that was wrong, that was not necessarily a significant factor. As Lord Neuberger MR observed in Haycroft at , the focus under Article 8 is primarily on respect for the occupier's particular home rather than a general right to be provided with a home. Moreover, as Mr Holbrook emphasised, considerations of the appellants' right to be re-housed, if evicted, runs into the territory of housing management and priority between competing claims to be housed, which is not a matter on which the court is usually properly equipped to express a view: Powell at .
- Judge Mitchell's incorrect description of the status of the appellants as licensees should they be allowed to remain in occupation of the Property was of no significance. What was more important, in that context, was Judge Mitchell's express recognition that, whatever the correct description of their legal status and obligations in that eventuality, they would be under-occupying a much needed resource.
- It follows that the conditions in CPR 52.17(1) are not satisfied. A real injustice will not occur if the application for permission to appeal from Judge May's judgment is not re-opened. A full and proper evaluation of whether eviction from the Property would infringe the appellants' Article 8 rights was carried out by Judge Mitchell in March 2014 when the appellants had full legal representation, and with the benefit of the appellants' further evidence, and he found that eviction would not infringe the appellants' Article 8 rights.
- Mr Luba submitted that Judge Mitchell was not carrying out the same exercise as Judge May should have carried out since he was looking at the position under Article 8 at the enforcement stage. The position could only, however, have been less favourable to the appellants in July 2013 when the appellants were unrepresented and Judge May made the order for possession since Mr Lawal had then been in occupation of the Property for even less time. In other words, the inevitable conclusion from Judge Mitchell's judgment is that, had Judge May not peremptorily refused to hear or dismissed the appellants' Article 8 argument, and had she gone on to hear it in full, she would have dismissed it.
- Furthermore, it is relevant that the appellants were not compelled to pursue their November 2013 application. Nothing that Arden LJ said required them to do so. She encouraged them to make enquiries as to whether there was a procedural mechanism which would enable them effectively to raise their Article 8 defence at the enforcement stage. By January 2014 the appellants had secured legal representation, including counsel, but they did not then abandon the November 2013 application and seek to re-open the application for permission to appeal from Judge May on the ground that CPR 3.1(7) was inapplicable and section 89 of the 1980 Act closed the door on any effective remedy. On the contrary, the November 2013 application was fought on the basis that 3.1(7) was applicable and the appellants proceeded to argue in full before Judge Mitchell their Article 8 rights and to adduce further evidence in support of them. There is no injustice within CPR 52.17(1)(a) if they are precluded from re-arguing the same issue on the appeal from Judge May. I would therefore refuse the appellants' application under CPR 52.17.
- Even if I were wrong to refuse the appellants' application under CPR 52.17 to re-open the application for permission to appeal Judge May's order for possession, I would nevertheless refuse permission to appeal. As I have said, the inevitable conclusion to be drawn from Judge Mitchell's judgment is that, had Judge May heard the full arguments on the appellants' Article 8 defence, she would have dismissed it. Mr Holbrook told us that, if permission to appeal were granted, Circle 33 would wish to file a respondent's notice setting out additional grounds to support Judge May's decision not to uphold such a defence. Any appeal would, therefore, simply involve a replay of the arguments deployed before Judge Mitchell on the evidence before Judge May and in the light of the findings of fact in her judgment. There is no real prospect that an appeal would have a different outcome to that reached on the Article 8 point by Judge Mitchell.
The appeal from Judge Mitchell
- It also follows from what has been said above that the appeal from Judge Mitchell's order must be dismissed. There are no grounds for criticising his dismissal of the appellants' 2013 November application.
- It is not necessary in the circumstances to consider otherwise than very briefly two further arguments advanced by Circle 33 on the appeal from Judge Mitchell's judgment. The first, which is the subject of Circle 33 respondent's notice, is that Judge Mitchell ought to have dismissed the appellants' November 2013 application as an abuse of process because (1) the Article 8 argument could and should have been raised at the trial before Judge May; (2) the application amounts to a collateral attack on the rulings of Judge May and of Arden LJ; (3) it was not appropriate to determine the Article 8 argument within the confines of an application; (4) the appellants had not paid Circle 33's trial costs of £15,751 as ordered by Judge May on 25 July 2013; and (5) the raising of the Article 8 argument at the stage of execution of the order for possession was contrary to the Overriding Objective in CPR 1.1.
- I would reject all those points. The only one of them on which it may be helpful to comment relates to the timing of an Article 8 defence in a claim for possession of residential property. As was made clear in the judgment of Briggs LJ in R (JL) v Secretary of State for Defence  EWCA Civ 449,  PTSR 1014, with which the other members of the Court of Appeal agreed, save in exceptional circumstances an Article 8 defence ought to be raised during the possession proceedings and in particular at the trial. To raise an Article 8 argument at the enforcement stage, when it could and should have been raised earlier, will almost always be an abuse of process. In the present case, there were exceptional circumstances, namely that (1) an Article 8 argument was in fact advanced by the appellants in their closing submissions at the trial but Judge May either declined to hear it or peremptorily dismissed it but in either case she gave no reasons for doing so in her formal judgment, and (2) Arden LJ, on the application for permission to appeal, took the view that rather than granting permission to appeal it would be better for the appellants, then acting in person, to pursue their Article 8 point at the enforcement stage. With hindsight, and with the benefit that Arden LJ did not have of legal argument and the transcript of what took place before Judge May, there is a compelling case that it would have been better if permission to appeal had been granted.
- The other argument advanced by Mr Holbrook, which I ought briefly to mention, is that in light of the reasoning of the European Court of Human Rights ("the ECrtHR") in JL v The United Kingdom (30.9.2014) (Application No. 66387/10) there is no scope at all for the application of Article 8 in the present case. The argument is that, by stipulating the tenant condition in section 81 of the 1985 Act, Parliament has already struck the Article 8 balancing exercise that requires respect for an occupier's home and there is no basis for the court to make separate enquiries into Article 8 issues if the court finds that the occupier has failed to satisfy that condition. I would reject that argument.
- Section 81 of the 1985 Act was not under consideration in JL v UK, but Circle 33 relies upon paragraph  of the decision of the ECrtHR, which is as follows:
43. In eviction cases vis-à-vis a public authority the Court has repeatedly emphasised that the loss of one's home is the most extreme form of interference with the right to respect for the home and, as such, any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end (see, for example, McCann v. the United Kingdom, no. 19009/04, § 50, ECHR 2008 and Kay and Others v. the United Kingdom, no. 37341/06, § 68, 21 September 2010). However, it has also recognised, albeit in the context of Article 1 of Protocol No. 1 to the Convention, that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature's judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation (see Mellacher and Others v. Austria, judgment of 19 December 1989, Series A no. 169, p. 27, § 45, Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V, § 49). Consequently, insofar as the Court has found violations of Article 8 in housing cases, it has principally done so in cases where there has been a lack of procedural safeguards (see, for example, McCann and Kay, cited above, in which the domestic courts were not permitted to consider proportionality in deciding whether or not to make an order for possession).
- Contrary to the submission of Circle 33, that passage in the ECrtHR's judgment supports rather than contradicts the relevance of Article 8 in a case such as the present. That is quite simply because, Article 8 aside, considerations of proportionality are irrelevant in a case where a public body seeks to evict an occupier of residential premises who was formerly a secure tenant but, at the time the tenancy is terminated by notice to quit, does not satisfy the tenant condition. Accordingly, in such a case, only an Article 8 defence enables the occupier to raise the issue of proportionality before the court.
- For the reasons set out above, I would dismiss the appellants' application under CPR 52.17 and I would dismiss the appeal from Judge Mitchell's order.
Lord Justice Patten
- I agree
Lady Justice Gloster
- I also agree.
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