Elmbridge Borough Council v Sullivan

On a second appeal, permission should be granted only through the narrow gateway where the case raises an important point of principle or practice, or another compelling reason. That gateway may nevertheless be satisfied where enforcement rests on an underlying administrative decision which the applicant says was never notified to him and the issue has never been adjudicated. A person’s failure to use the apparently appropriate procedure does not necessarily justify refusing permission where that failure may have resulted from ignorance of the underlying decision or from litigating in person. The relationship between enforcement proceedings and a pending complaint to the European Court of Human Rights may itself raise an important point of principle, particularly where the complaint concerns notice of the decision forming the root of the enforcement claim.

Elmbridge Borough Council sought recovery of alleged housing-benefit overpayments of more than £40,000. It obtained an enforcement order under CPR 70.5 after Mr Sullivan neither sought review nor appealed the Council’s decision. His attempts to set aside the enforcement order and obtain judicial review failed.

While his complaint to the European Court of Human Rights remained pending, the Epsom County Court stayed execution. HHJ Davies allowed the Council’s appeal, finding that the stay failed adequately to address delay, court resources, the available domestic appeal route and the prospects of setting aside the enforcement order. Mr Sullivan applied for permission to bring a second appeal. The central issues were whether the second-appeal gateway was met and whether the unadjudicated question of notice of the underlying decision justified further consideration.

1. Permission granted. Although the merits of Mr Sullivan’s complaint to the European Court of Human Rights appeared weak, the application satisfied the second-appeal gateway in CPR 52.132.
2. The underlying dispute concerned an alleged housing-benefit overpayment and the Council’s decision letter. The enforcement order was made under CPR 70.5. Mr Sullivan had not used the statutory review or appeal procedure identified in the decision letter, and previous applications to set aside the enforcement order and for judicial review had failed.
3. Lord Justice Rix considered it important that the question whether Mr Sullivan had ever received notice of the underlying decision had never been adjudicated. If he had not received notice, his complaint went to the root of the claim, notwithstanding his failure to raise an Article 6 point before the domestic courts and his use of procedures directed against the enforcement order rather than the underlying decision.
4. The relationship between a stay of enforcement proceedings and a complaint to the European Court of Human Rights raised an important point of principle. Alternatively, the circumstances supplied a compelling reason for the courts to determine whether the underlying complaint could properly be examined under the legislation, rather than rejecting it solely because the applicant, acting in person, had used the wrong procedure.
5. The court directed that the appeal should be heard by three judges, one of whom might be a High Court judge, and that the hearing should take half a day. A transcript was to be provided at public expense.

• Court of Appeal (Civil Division): On 30 June 2005, Lord Justice Rix granted permission for a second appeal and directed a three-judge constitution.
• Portsmouth County Court: HHJ Davies allowed Elmbridge Borough Council’s appeal against the stay granted by District Judge Letts.
• Epsom County Court: District Judge Letts had stayed execution of the enforcement order pending the European Court of Human Rights proceedings.
• Earlier proceedings: Applications to set aside the enforcement order and for judicial review had been refused.