Cocks (Respondent)
v.
• Thanet District Council (Appellants)
(on appeal from the Queen’s Bench Division of the
High Court of Justice)
JUDGMENT
Die Jovis 25° Novembris 1982
Having heard Counsel as well on Wednesday the 6th as
on Thursday the 7th days of October last upon the Petition
and Appeal of Thanet District Council, P.O. Box 9, Cecil
Street, Margate, Kent praying that the matter of the Order
set forth in the Schedule thereto, namely an Order of the
Queen’s Bench Division of Her Majesty’s High Court of
Justice of the 18th day of May 1982 might be reviewed
before Her Majesty the Queen in Her Court of Parliament
and that the said Order might be reversed, varied or
altered or that the Petitioners might have such other
relief in the premises as to Her Majesty the Queen in Her
Court of Parliament might seem meet (which said Appeal was
heard ex parte as to the Respondent William Charles Cocks,
he not having lodged a Case in answer to the said Appeal
though ordered so to do) ; and due consideration had this
day of what was offered for the Appellants:
It is Ordered and Adjudged, by the Lords Spiritual
and Temporal in the Court of Parliament of Her Majesty the
Queen assembled. That the said Order of the Queen’s Bench
Division of Her Majesty’s High Court of Justice of the
18th day of May 1982 complained of in the said Appeal be,
and the same is hereby, Set Aside except so far as regards
the words “and it is further adjudged that the Plaintiff’s
Costs be taxed in accordance with the Second Schedule to
the Legal Aid Act 1974”; And that it be, and the same is
hereby. Declared that the Respondent is not entitled to
continue the proceedings brought in the Thanet County
Court Plaint No. 8200265 otherwise than by an application
for judicial review; And it is further Ordered, That the
Cause be, and the same is hereby, remitted back to the
Queen’s Bench Division of the High Court of Justice to do
therein as shall be just and consistent with – this
Judgment.
Cler: Parliamentor:
HOUSE OF LORDS
COCKS
(RESPONDENT)
v.
THANET DISTRICT COUNCIL
(APPELLANTS)
(ON APPEAL FROM THE QUEEN’S BENCH DIVISION OF
THE HIGH COURT OF JUSTICE
Lord Diplock
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Brightman
Lord Diplock
my lords.
I have had the advantage of reading in draft the speech of my noble and
learned friend, Lord Bridge of Harwich. I agree with it and would allow
the appeal and concur in the order which he proposes.
Lord Fraser of Tullybelton
my lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Bridge of Harwich. I agree with it, and
with the order proposed by him.
Lord Keith of Kinkel
my lords,
I have had the benefit of reading in draft the speech to be delivered by
my noble and learned friend. Lord Bridge of Harwich. For the reasons
which he gives I would allow the appeal and concur in the order which he
proposes.
Lord Bridge of Harwich
my lords,
The Housing (Homeless Persons) Act, 1977 has been, and will no doubt
continue to be. a fruitful source of litigation. The rights of an applicant
for accommodation under the Act, and the corresponding duties of the
housing authority, depend upon three questions with respect to the applicant:
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-
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Is he homeless or threatened with homelessness?
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If yes, has he a priority need?
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If yes, did he become homeless intentionally?
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The primary duties of the housing authority are fourfold:
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-
If the housing authority have reason to believe that the applicant
may be homeless or threatened with homelessness, they must make
such inquiries as are necessary to satisfy themselves of the answers to
the three questions indicated above (” the duty to inquire “): section
3(1) and (2). -
If they have reason to believe that he may be homeless and have
a priority need, they must accommodate him pending the outcome
of their inquiries (” the temporary housing duty “): section 3(4).
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2
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If they are satisfied that questions (1) and (2) should be answered
affirmatively, but are not so satisfied as to question (3), they must provide
permanent accommodation for the applicant (” the full housing
duty “): section 4(5). -
If they are satisfied that all three questions should be answered
affirmatively, they must provide him with interim accommodation and
with advice and assistance (” the limited housing duty “): section 4(2)
and (3).
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-
Normally there will be no room for dispute as to whether or not an appli-
cant is (a) homeless or threatened with homelessness or (b) has a priority need.
But the question whether or not a person became homeless intentionally
may frequently give rise to difficulties, as is shown by the many reported
cases on the subject, including two in your Lordships’ House: Din (Taj)
v. Wandsworth London Borough Council [1981] 3 WLR 918; Reg. v.
Hillingdon London Borough Council, Ex pane Islam (Tafazzul) [1981]
3 W.L.R. 942. Moreover, it is the resolution of this question, when disputed,
which is of crucial importance both to the applicant and to the housing
authority because of the great practical differences in effect for both parties
between the full housing duty and the limited housing duty. The rights
claimed by the respondent to the present appeal probably turn in the end
on the question of intentional homelessness. But the issue for your
Lordships’ decision on this occasion is concerned, not with the substance
of that question, but with the procedure by which that and other questions
under the Act ought properly to be resolved.
The respondent instituted these proceedings in the Thanet County Court
on 29th January 1982. By his particulars of claim he pleads, in effect, that
since 21st December 1981 he and his family have been homeless (although
accommodated at the home of a friend) and in priority need and that his
frequent applications to the appellant housing authority for accommodation
since that date have been refused. The pleading makes no reference to any
decision of the appellants notified to the respondent pursuant to section 8
of the Act, but asserts, baldly and boldly, that the appellants owe to the
respondent and are in breach of both the temporary and the full housing
duty. The prayer for relief claims, inter alia, a declaration to that effect,
consequential mandatory injunctions and damages. I mention in passing
that the appellants might well have applied to strike out the pleading as it
stands as disclosing no cause of action, but this would probably only have
led to an amendment of the pleading to identify and particularise the
precise issues which the respondent seeks to litigate. Sensibly, no doubt,
the parties sought and obtained a consent order from Master Elton which
(a) transferred the proceedings to the Queen’s Bench Division of the High
Court and (b) ordered trial of a preliminary issue as to whether the
proceedings were properly brought by action or could only be brought by
application for judicial review. That issue was heard before Milmo J.
on 30th April 1982, when Mr. Scrivener Q.C., for the appellants, conceded
that the learned judge was bound by the decision of the Court of Appeal
in De Falco v. Crawley Borough Council [1980] 1 Q.B. 460 to decide the
issue in favour of the respondent. The learned judge granted an appropriate
certificate under section 12 of the Administration of Justice Act 1969 for
appeal direct to your Lordships’ House and in due course leave to appeal
was granted.
The procedural issue on which the appeal turns will naturally fall for
decision in the light of the principles expounded in the speech of my noble
and learned friend, Lord Diplock in the case of O’Reilly v. Mackman in
which judgment has just been delivered. But before attempting to apply
those principles, it is necessary to analyse the functions of housing authorities
under the Act of 1977. These functions fall into two wholly distinct
categories.
On the one hand, the housing authority axe charged with decision-
making functions. It is for the housing authority to decide whether they
have reason to believe the matters which will give rise to the duty of inquiry
or to the temporary housing duty. It is for the housing authority, once
the duty of inquiry has arisen, to make the appropriate inquiries and to
decide whether they are satisfied, or not satisfied as the case may be, of the
matters which will give rise to the limited housing duty or the full housing
duty. These are essentially public law functions. The power of decision
being committed by the statute exclusively to the housing authority, their
exercise of the power can only be challenged before the courts on the
strictly limited grounds (i) that their decision was vitiated by bias or
procedural unfairness; (ii) that they have reached a conclusion of fact which
can be impugned on the principles set out in the speech of Lord Radcliffe
in Edwards v. Bairstow [1956] AC 14; or (iii) that, in so far as they have
exercised a discretion (as they may require to do in considering questions
of reasonableness under section 17(1)(2) and (4)), the exercise can be
impugned on the principles set out in the judgment of Lord Greene M.R.
in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation
[1948] 1 KB 223. All this is trite law and the contrary has, so far as I
know, never been argued in any case which has come before the courts
under the Act of 1977.
On the other hand, the housing authority are charged with executive
functions. Once a decision has been reached by the housing authority
which gives rise to the temporary, the limited or the full housing duty,
rights and obligations are immediately created in the field of private law.
Each of the duties referred to, once established, is capable of being enforced
by injunction and the breach of it will give rise to a liability in damages.
But it is inherent in the scheme of the Act that an appropriate public law
decision of the housing authority is a condition precedent to the establish-
ment of the private law duty.
When the Court of Appeal, of which I was a member, decided De Falco’s
case (supra), we did not, of course, have the benefit of Lord Diplock’s
analysis of the consequences of the introduction in 1977 by the amended
Order 53 of the Rules of the Supreme Court of the new public law procedure
by way of an application for judicial review. That apart, I believe our
decision was influenced by a failure to appreciate the significance of the
dichotomy of functions to which I have drawn attention in the two fore-
going paragraphs and a consequent misunderstanding of the true effect of
the earlier Court of Appeal decision in Thornton v. Kirklees Metropolitan
Borough Council [1979| 1 Q.B. 626. The view expressed in De Falco
(supra) by Lord Denning M.R. at p.476 and by myself at p.480, that an
applicant for accommodation under the Act of 1977 who wishes to challenge
the housing authority’s decision that he was intentionally homeless can do
so either by action or by application for judicial review, I can now see to
have been based on false reasoning. I am the more ready to say so since
Lord Denning has also subsequently resiled from his previous opinion:
see Lambert v. Baling London Borough Council [1982] 1 W.L.R. 550
at p.557.
Thornton v. Kirklees Metropolitan Borough Council (supra) was an
appeal from a decision to strike out the plaintiff’s particulars of claim in
the county court on the ground that they disclosed no reasonable cause
of action. The sole issue canvassed on the appeal was whether a breach
of the duty under section 3(4) of the Act (what I have called the temporary
housing duty) gave a cause of action in damages against the housing
authority, which was essential to found jurisdiction in the county court.
The Court of Appeal held that it did. On such an application to strike
out, the court necessarily assumed the truth of the facts pleaded and these
were taken sufficiently to allege both the existence and the breach of a
duty owed to the plaintiff under section 3(4). On these assumptions the
decision was, in my respectful view, correct. But the decision is authority
for no more extensive proposition than that once the existence of a duty
resting on a housing authority under the Act of 1977 to provide accommoda-
tion, whether temporary or permanent, has been established, an action
for damages for breach of that private law duty lies. It is to be noted that
in that case the housing authority did not object to the proceedings in the
county court as an abuse of process. If they had done so, they would
have been entitled, for the reasons which I am about to develop, to have
the action struck out on that ground.
After reference to Thornton (supra), in De Falco (supra) 1 said, at p.480:
” If an ordinary action lies in respect of an alleged breach of duty,
” it must follow, it seems to me, that in such an action the plaintiff
” as well as claiming damages or an injunction as his remedy for the
” breach of duty can claim any declaration necessary to establish that
” there was a relevant breach of duty, and, in particular, a declaration
” that a local authority’s decision adverse to him under the Act was
” not validly made.”
In the light of the dichotomy between a housing authority’s public and
private law functions, this is a non-sequitur. The fallacy is in the implicit
assumption that the court has the power not only to review the housing
authority’s public law decision but also to substitute its own decision to
the contrary effect in order to establish the necessary condition precedent
to the housing authority’s private law liability.
I have already indicated my agreement with the views of my noble and
learned friend, Lord Diplock, as expressed in O’Reilly’s case, and I grate-
fully adopt all his reasons for the conclusion that:
” It would … as a general rule be contrary to public policy and
” as such an abuse of the process .of the court, to permit a person
” seeking to establish that a decision of a public authority infringed
” rights to which he was entitled to protection under public law to
” proceed by way of an ordinary action and by this means to evade
” the provisions of Order 53 for the protection of such authorities.”
Does the same general rule apply, where the decision of the public authority
which the litigant wishes to overturn is not one alleged to infringe any
existing right but a decision which, being adverse to him, prevents him
establishing a necessary condition precedent to the statutory private law
right which he seeks to enforce? Any relevant decision of a housing
authority under the Act of 1977 which an applicant for accommodation
wants to challenge will be of that character. I have no doubt that the same
general rule should apply to such a case. The safeguards built into the
Order 53 procedure which protect from harassment public authorities on
whom Parliament has imposed a duty to make public law decisions and the
inherent advantages of that procedure over proceedings begun by writ or
originating summons for the purposes of investigating whether such decisions
are open to challenge are of no less importance in relation to this type of
decision than to the type of decision your Lordships have just been consider-
ing in O’Reilly’s case. I have in mind, in particular, the need to obtain
leave to apply on the basis of sworn evidence which makes frank disclosure
of all relevant facts known to the applicant; the court’s discretionary
control of both discovery and cross-examination; the capacity of the court
to act with the utmost speed when necessary; and the avoidance of the
temptation for the court to substitute its own decision of fact for that of
the housing authority. Undue delay in seeking a remedy on the part of
an aggrieved applicant for accommodation under the Act of 1977 is perhaps
not often likely to present a problem, but since this appeal, unlike O’Reilly’s
case, arises from proceedings commenced after the coming into operation
of the Supreme Court Act 1981, it is an appropriate occasion to observe
both that section 31 of that Act removes any doubt there may have been
as to the vires of the 1977 amendment of Order 53 and also that section
31(6), by expressly recognising that delay in seeking the public law remedies
obtainable by application for judicial review may be detrimental to good
administration, lends added weight to the consideration that the court, in
the control of its own process, is fully justified in confining litigants to the
use of procedural machinery which affords protection against such
detrimental delay.
5
Even though nullification of a public law decision can, if necessary, be
achieved by declaration as an alternative to an order of certiorari, certiorari
to quash remains the primary and most appropriate remedy. Now that
all public law remedies are available to be sought by the unified and
simplified procedure of an application for judicial review, there can be
no valid reason, where the quashing of a decision is the sole remedy sought,
why it should be sought otherwise than by certiorari. But an unsuccessful
applicant for accommodation under the Act of 1977, confronted by an
adverse decision of the housing authority as to, say, the question of his
intentional homelessness, may strictly need not only an order of certiorari
to quash the adverse decision but also an order of mandamus to the housing
authority to determine the question afresh according to law. I have said
that the court has no power to substitute its own decision for that of the
housing authority. That is strictly correct, though no doubt in practice
there will be cases where the court’s decision will effectively determine the
issue, as for instance where on undisputed primary facts the court holds
that no reasonable housing authority, correctly directing itself in law,
could be satisfied that the applicant became homeless intentionally. But
it will be otherwise where the housing authority’s decision is successfully
impugned on other grounds, as for instance that the applicant was not
fairly heard or that irrelevant factors have been taken into account. In
such cases certiorari to quash and mandamus to re-determine will, in strict-
ness, be the appropriate remedies and the only appropriate remedies.
It follows from these considerations that proceedings in which an
unsuccessful applicant for accommodation under the Act of 1977 sets out
to challenge the decision of the housing authority against him will afford
another application of Lord Diplock’s general rule and will amount to an
abuse of the process of the court if instituted otherwise than by an applica-
tion for judicial review under Order 53.
In view of some technical but significant differences in the approach
to the question raised in this appeal between the law of England and the
law of Scotland, which is to be considered in the next judgment of your
Lordships’ House to be delivered, and in order to dispel any possible doubt,
I think it appropriate to emphasise that the conclusion reached in this
appeal arises from the English court’s inherent jurisdiction to control its
own process to prevent abuse, and has nothing to do with any limitation
on the jurisdiction of the county court. As Lord Diplock has observed
in O’Reilly’s case, the validity of a public law decision may come into
question collaterally in an ordinary action. In such a case the issue would
have to be decided by the High Court or the county court trying the action,
as the case might be.
My Lords, I would allow this appeal, set aside the order of the learned
judge and determine the preliminary issue by declaring that the respondent
is not entitled to continue these proceedings or to seek any of the relief he
claims otherwise than by an application for judicial review.
Lord Brightman
my lords,
I also would allow this appeal for the reasons given by my noble and
learned friend, Lord Bridge of Harwich.
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