Clarke v London Borough Of Enfield

Quashing a public-law decision ordinarily removes the decision as a whole, including its findings, and requires reconsideration on all its merits. A party cannot preserve a favourable finding from the quashed decision to establish issue estoppel.

A consent order must be implemented according to its clear terms. An implied term cannot contradict an order requiring a de novo rehearing. Estoppel by representation also requires reliance causing detriment. A tribunal’s decision is not Wednesbury unreasonable merely because another conclusion was possible, or because it did not mention every argument, where its reasons address the material circumstances and are rational.

The appellant claimed housing benefit for rent said to be payable to her brother. She had initially denied that he was a close relative. The first review board found a legal liability to pay rent but held that the tenancy had been created to take advantage of the housing benefit scheme. Its decision was quashed by consent, and the application was remitted to a newly constituted board.

The fresh board reconsidered liability under regulation 6 and the contrivance issue under regulation 7(1)(b). It found no genuine liability to pay rent. The Administrative Court dismissed the appellant’s judicial review claim. The Court of Appeal considered whether the earlier finding survived quashing, whether the consent order limited the rehearing, and whether the fresh decision was Wednesbury unreasonable.

Ward LJ gave the leading judgment. The appeal and the renewed application for permission to appeal were dismissed. Keene LJ agreed and added brief reasoning; Sir Martin Nourse agreed with both judgments.

1. Quashing order and issue estoppel. Issue estoppel requires a clear finding by a previous court, tribunal or other adjudicative body, and the finding must remain subsisting. The first review board’s finding on liability had no continuing legal effect once its decision was quashed. The consent order quashed the decision as a whole, not merely one ground or part of the reasoning. It required the application to be reconsidered de novo, so the appellant could not retain selected findings from the earlier decision.
2. Estoppel by representation. The appellant obtained the relief sought, namely quashing and a rehearing, and suffered no detriment by relying on the memorandum of reasons. Nothing in the agreement or order represented that the fresh board would consider only the contrivance issue.
3. Consent order and implied term. The agreement underlying the order was an accord and satisfaction compromising pending litigation. Its clear terms, and the order made pursuant to them, required all issues to be reconsidered. An implied term could not contradict those terms while the order remained in force. Keene LJ additionally considered that the agreement was already efficacious, so no term could be implied merely to give it efficacy, applying the reasoning invoked from The Moorcock.
4. Wednesbury unreasonableness. The fresh board was entitled to consider the circumstances as a whole. Payment after housing benefit ceased, a rent book and exclusive possession indicated a tenancy, but did not compel that conclusion. The board gave thorough and reasonable reasons and was not required to mention every point raised. The Court could not substitute its own view merely because it might have reached a different conclusion.

Permission to appeal to the House of Lords on the estoppel point was refused. A public funding costs assessment was ordered for the appellant.

• Court of Appeal (Civil Division): On 9 May 2002, the appeal and renewed application for permission to appeal were dismissed. Permission to appeal to the House of Lords on the estoppel point was refused. [2002] EWCA Civ 1278.
• High Court of Justice, Administrative Court: On 18 September 2001, Mr Justice Harrison dismissed the application for judicial review and refused permission to appeal.