National Assembly for Wales v Smith

Where a grant-recovery decision is preceded by a clear statement inviting the recipient to identify relevant matters, the decision-maker need not make further inquiries if the recipient makes no representations and fails to report the triggering disposal. A legitimate expectation that representations will be considered depends on representations being made. A challenge alleging failure to consider material factors requires evidence supporting that inference. Clear recovery conditions are not displaced by a later reference to amalgamating grant phases for payment calculations, absent a credible basis for that construction. Pursuing recovery after later contact was not irrational where finality and the recipient’s earlier silence were material. Permission for a second appeal was refused.

The defendant obtained several grants for work on a historically significant property. The grant conditions allowed recovery of all or part of the grants if the property was sold within specified periods. After deciding to sell, the defendant notified the conservation authority of his intention but failed to notify it when the sale occurred.

Default judgment was entered after proceedings for recovery of part of the grants. A Deputy District Judge refused to set aside that judgment, and Thomas J dismissed the defendant’s appeal on 12 March 2001. The defendant sought permission for a second appeal, arguing that he should have received a further opportunity to make representations, that relevant matters had not been considered, and that a later reference to amalgamating grant phases had removed the recovery conditions. The central issue was whether those arguments gave the proposed appeal a real prospect of success or raised an important point of principle or practice.

1. Disposition. The application for permission to bring a second appeal was dismissed. The proposed appeal had no realistic prospect of success and raised no important point of principle or practice.
2. Representations. The letter of 11 March 1998 explained the recovery position fully and fairly. It was for the defendant to keep the authority informed and to make any representations he wished, bearing in mind the stated basis on which repayment would be calculated. Since he did not notify the authority of the sale or make representations, there was no obligation to do more than had been done to seek them.
3. Legitimate expectation and delay. The defendant could expect representations to be considered if he made them. That expectation did not require the authority to consider matters first raised after proceedings had begun. The authority had a proper basis for insisting on finality, given the lapse of time and the defendant’s earlier failure to engage with the recovery process.
4. Relevant considerations and rationality. The correspondence provided no proper basis for inferring that the authority had ignored the defendant’s financial hardship, the work undertaken, or the attempted public access arrangements. Nor was there any basis for saying that pursuing the recovery claim after contact had been made was irrational.
5. Grant conditions. The argument that the 1992 reference to amalgamating the costs and grant offers removed the recovery conditions was wholly without merit. The conditions had been clearly set out, and the material could not reasonably be understood as cancelling them.

• Court of Appeal (Civil Division): On 18 June 2001 the application for permission to bring a second appeal was dismissed.
• Chester County Court: Thomas J dismissed the appeal from the refusal to set aside judgment in default on 12 March 2001.
• Wrexham District Registry: Deputy District Judge Stephens refused the application to set aside judgment in default on 13 July 2000.