Plant, R (On the Application Of) v Somerset County Council & Anor

Relief from sanctions and an application to set aside an order require promptness, a good explanation for the default and a reasonable prospect of success, followed by consideration of all the circumstances under Denton. A public authority’s failure to participate promptly in judicial review proceedings may make later opposition unjust, particularly where it previously conceded the claim. Judicial review is normally a last resort, but an alternative remedy does not oust the High Court’s jurisdiction. Where a public authority seeks possession from a trespasser, the question is whether eviction is a proportionate means of achieving a legitimate aim. Vulnerability and Article 8 rights must be considered, but they do not create an unconditional right to remain. The discharge of a housing authority’s statutory duty may fundamentally alter the proportionality assessment.

The claimant, a vulnerable homeless man, occupied land owned by Somerset County Council as a trespasser. He sought judicial review of Somerset’s continuing attempt to obtain possession and a mandatory order requiring Taunton Deane Borough Council to discharge its homelessness duty by offering suitable accommodation.

Taunton Deane initially accepted the duty and stated that it would not contest the claim. Following an order requiring it to discharge the duty, it offered accommodation which it considered suitable. It later sought permission to contest the claim out of time and revocation of the order. The issues were whether those applications should be granted and whether Somerset’s continuing possession proceedings were disproportionate, irrational or incompatible with the claimant’s Convention and equality rights.

1. Taunton Deane’s applications. The applications for relief from sanctions, permission to participate and revocation or setting aside of the earlier mandatory order were refused. An application under CPR Part 39.3 had not been made promptly, there was no good explanation for the delay, and Taunton Deane had negligible prospects of success because it accepted that it owed the claimant a housing duty and had sought to discharge it. Its variation in legal advice did not justify its failure to participate.
2. The Denton principles applied. Although failure at the first two stages was not automatically fatal, the third stage required consideration of all the circumstances, including efficient and proportionate litigation and compliance with rules and orders. Those considerations favoured refusal. The alleged ambiguity caused by reference to section 195 rather than section 193 did not invalidate the order. Taunton Deane knew the duty it had accepted and could have sought clarification, amendment or an appeal.
3. Alternative remedy. The judicial review was not out of time because the decision to pursue possession was continuing where further evidence had become available. The existence of County Court proceedings did not oust the High Court’s jurisdiction. Although judicial review is ordinarily a last resort and parallel proceedings are undesirable, it was not appropriate to remit the matter after full argument had been heard in this unusual and already protracted case.
4. Article 8 and proportionality. The question was whether possession was a proportionate means of achieving Somerset’s legitimate aim. The claimant’s vulnerabilities, the risk of suicide and the fact that the land was his home were relevant. No separate exceptionality threshold applied. However, Article 8 did not give him an unconditional right to remain on land occupied as a trespasser, particularly where Somerset owned the land and intended to use it for housing purposes.
5. The discharge, or attempted discharge, of Taunton Deane’s housing duty fundamentally changed the position. The claimant could pursue the statutory review and appeal route, but Somerset owed him no housing duty. In the circumstances, continued possession proceedings were proportionate, were not irrational and did not breach the Human Rights Act 1998 or the Equality Act 2010. The judicial review claim was dismissed.