Tummond, R (on the application of) v Reading County Court & Anor

Judicial review of a County Court refusal of permission to appeal is available only in exceptional circumstances. A mere error of law in the Circuit Judge’s assessment of the proposed appeal is not a procedural irregularity and does not justify review. The exceptional category is confined principally to jurisdictional error in the narrow sense or procedural irregularity amounting to denial of a fair hearing.

Under the Housing Act 2004, a tenancy deposit may be held in accordance with an authorised scheme before its formal protection is completed, where the landlord is contractually bound to protect and deal with it under that scheme. Section 215 sanctions arise only upon non-compliance with the statutory requirements, including failure to comply within the applicable 30-day period.

The claimant sought judicial review of HHJ Oliver’s refusal on 12 November 2013 to grant permission to appeal against a possession order made by District Judge Devlin. The possession proceedings concerned a section 21 notice served shortly after the claimant entered an assured shorthold tenancy. The claimant argued that the notice was ineffective because his deposit had not yet been formally protected and prescribed information had not yet been supplied.

The deposit was protected, and the prescribed information supplied, within the statutory 30-day period. The central issues were whether the refusal of permission fell within the exceptional circumstances permitting judicial review and, alternatively, whether the County Court had erred in construing sections 213 and 215 of the Housing Act 2004.

1. Judicial review threshold. The application was dismissed. Section 54(4) of the Access to Justice Act 1999 and the relevant practice direction reflect Parliament’s intention that a refusal of permission to appeal should ordinarily be final. Under R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738, the Administrative Court may intervene only in very rare cases involving jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity amounting to denial of a fair hearing.
2. Error of law and fairness. A mere error of law is substantive, not procedural. The claimant’s argument had been considered and rejected with intelligible reasons. The fact that the decision might have been wrong, even on an important point of law, could not bring the case within the exceptional category identified in R (Sivasubramaniam) v Wandsworth County Court and Gregory v Turner [2003] EWCA Civ 183. The issue was short, oral submissions had been made through counsel, and there had been a fair hearing.
3. Deposit protection. On the alternative merits, the landlord was contractually obliged from receipt of the deposit to protect it under an authorised scheme and to deal with it in accordance with that scheme. That contractual obligation meant the deposit was being held in accordance with an authorised scheme within section 215(1)(a), although formal protection occurred later.
4. Statutory time limits. Sections 213(3) and 213(6) allowed 30 days for protection of the deposit and provision of prescribed information. Section 215(2) was engaged only if those requirements were not complied with within that period. There had been no such non-compliance. The refusal of permission was therefore not shown to contain an error of law.

The claimant sought to appeal HHJ Oliver’s refusal of permission to appeal, but the Court of Appeal explained that no appeal lay and that the appropriate remedy was judicial review. Permission to bring the judicial review claim was granted by Lang J. The High Court dismissed the claim.