Akinsanmi, R (on the application of) v London Borough of Lambeth

At the permission stage, the Court of Appeal may adjourn an application where new evidence raises a potentially material procedural defect and the evidence requires clarification. The adjournment does not determine permission or the merits. Later misleading publicity will not ordinarily affect the legality of an earlier public decision without a demonstrated legal connection. Conflicting evidence about whether a council resolution was actually voted upon may justify further investigation where the resolution initiated a statutory approval process.

The claimant challenged Lambeth London Borough Council’s proposed transfer of housing stock on the Clapham Park Estate to Clapham Park Homes Limited. Henriques J refused permission for judicial review on the papers. Bean J later refused permission, concluding that the grounds raised in correspondence lacked merit.

On the claimant’s application for permission to appeal, the Court of Appeal considered new evidence concerning the council meeting of 22 February 2006. One witness said that the relevant agenda item was not announced, discussed or voted upon, while the formal minutes appeared to record a resolution. The Secretary of State had subsequently consented to the transfer. The central issue was whether the apparent failure to vote required clarification before permission could be determined.

1. Application adjourned. The Court of Appeal adjourned the application for permission to appeal so that further information could be obtained about what occurred at the council meeting. Permission to appeal was neither granted nor refused.
2. Lord Justice Laws considered Bean J’s reasoning on the grounds advanced in the claimant’s solicitors’ letter to be entirely correct. On the material previously before the court, he could identify no legal error in the council’s decision or in the Secretary of State’s subsequent decision.
3. Complaints upheld by the Advertising Standards Authority concerning later posters issued by Clapham Park Homes could not, on the evidence then available, affect the legality of the earlier decisions of the council or the Secretary of State.
4. New witness evidence created a significant disparity. Mr Whelan stated that a guillotine procedure had been reached before agenda item 7.2 and that the item was not announced, discussed or voted upon. Ms Stone gave similar evidence. The formal minutes, however, appeared to state that the resolution had been made. The disparity was unusual and troublesome, and required investigation.
5. The court identified, without deciding, a possible argument that if no vote had taken place, the defect could affect the procedure for applying for the Secretary of State’s consent under section 106A and Schedule 3A of the Housing Act 1985, and ultimately the grant of consent. The court also noted formidable procedural and formal difficulties, including uncertainty whether the Secretary of State’s decision fell within the existing judicial review proceedings.
6. The adjournment was not an indication that permission would necessarily be granted, even if the alleged absence of a vote were established. The application was to be restored promptly, with the council providing information capable of resolving the conflict between the witness statements and the minutes.

• Court of Appeal (Civil Division), [2006] EWCA Civ 1429: adjourned the application for permission to appeal and directed that it be restored after further information was obtained.
• High Court, Administrative Court: Bean J refused permission for judicial review on 23 June 2006.
• High Court, Administrative Court: Henriques J had previously refused permission on the papers.