Hargreaves, R (on the application of) v London Borough of Hackney

A public authority’s exercise of its powers may be challenged for conspicuous unfairness, including breach of legitimate expectation or abuse of power. However, repeated extensions, assistance, warnings and other practical accommodation may demonstrate conspicuous forbearance rather than unfairness. Where the factual basis of a public law challenge is unarguable, it is unnecessary to determine wider jurisdictional questions. Judicial review is also a discretionary remedy and is ordinarily inappropriate as an indirect challenge to a county court possession decision, save in exceptional cases such as absence of jurisdiction or unfairness fundamentally negating the proceedings.

The claimant occupied premises used by a Christian centre and school after the expiry of a lease. The defendant local authority repeatedly extended the time for possession, assisted in seeking alternative premises and eventually issued possession proceedings.

The claimant accepted that he had no private law right to remain but alleged public law unfairness, breach of legitimate expectation and abuse of power. Possession proceedings in the county court resulted in an order for possession, and the claimant also challenged the county court judge’s treatment of the public law arguments. The central issues were whether the authority’s conduct was arguably conspicuously unfair and whether judicial review was an appropriate means of challenging the possession proceedings.

1. Renewed permission refused. The defendant had repeatedly extended the possession date, assisted the search for alternative premises and issued proceedings only after warnings. The claimant had long known that redevelopment would require the property to be vacated. Those facts showed conspicuous forbearance, not conspicuous unfairness. No arguable public law error was disclosed.
2. Legitimate expectation forms part of the broader public law requirement of fairness. The relevant threshold in an arguable judicial review claim was conspicuous unfairness, as illustrated by R v Inland Revenue Commissioners ex parte Unilever Plc [1996] STC 681 and Rashid v Secretary of State for the Home Department [2005] Imm App R 608; [2005] EWCA Civ 744. The materially different facts in Rashid did not assist the claimant.
3. The remaining public law complaints, including abuse of power and alleged policy breaches, were variants of the unfairness argument and likewise had no arguable factual foundation.
4. The court declined to determine finally whether the county court had jurisdiction to entertain the public law arguments. Since they were raised as defences, the county court judge at least had a discretion to consider them. Judicial review of a county court possession decision would ordinarily be inappropriate where the proper route was an application for permission to appeal. It would be available only exceptionally, for example where there was no jurisdiction or such unfairness as to negate the proceedings. No such unfairness was arguable here.
5. Permission to amend the grounds to criticise the county court judge was granted, but the amended ground was rejected as academic and unarguable. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

The judgment itself records that:

• Clerkenwell and Shoreditch County Court: HHJ Mitchell heard evidence, rejected the public law allegations and made an order for possession on 31 August 2007.
• High Court (Administrative Court): the renewed application for permission to apply for judicial review, including the challenge to the county court judge’s approach, was refused or rejected as unarguable.