London Borough of Haringey v Simawi

The court has a narrow discretion to determine a public-law issue which has become academic between the parties. The discretion must be exercised cautiously, but there is no inflexible requirement that every specified condition be satisfied. Relevant considerations include the issue’s general importance, the existence or likelihood of other cases, whether the arguments will be fully ventilated, prejudice and costs, and the overriding objective. A court may direct determination where resolving the issue would secure substantial economies of scale, assist poorly resourced litigants, and avoid repeated litigation. A decision directed expressly to resolving the issue would not be obiter merely because the immediate dispute later ends.

The claim began as possession proceedings concerning a secure tenancy. The defendant resisted possession, arguing that the statutory bar on a second succession under the Housing Act 1985 was incompatible with Articles 8 and 14 of Schedule 1 to the Human Rights Act 1998.

The proceedings were transferred to the High Court and the Secretary of State was joined. The parties agreed that the incompatibility issue would become academic if a new secure tenancy were offered and accepted. The question before Nicklin J was whether the court should nevertheless direct determination of the issue if that occurred before the substantive hearing.

1. The court had a discretion to determine an issue which might become academic between the parties. The discretion was narrow and had to be exercised with caution, but the authorities did not establish an inflexible rule.

2. The relevant considerations included whether the issue was of general importance, whether similar cases existed or were anticipated, whether both sides would be fully and properly represented, and whether the objecting party would suffer inappropriate prejudice. The fact that a party did not consent and was not indemnified for costs was not determinative and did not confer an effective veto.

3. The statutory succession issue was of real and general importance. It was likely to arise in other possession cases, particularly because many affected tenants might lack legal representation or public funding. Legislative amendments did not materially reduce the present importance of resolving the issue because the relevant amendments were not yet in force and old secure tenancies remained governed by the existing provisions.

4. R (Gangera) v Hounslow LBC had not determined the precise discrimination argument advanced in the present proceedings. It had considered a different comparison and had not addressed Housing Act 1985 section 88(2). It was therefore not a complete answer to the proposed issue, although its ultimate relevance would be for the court determining the merits.

5. The arguments would be properly ventilated. The likely costs burden on the local authority was limited and justified by the prospect of avoiding repeated litigation and conserving court resources. Applying the overriding objective on a wider, analogous scale, the benefits of determining the issue clearly outweighed the costs.

6. The court therefore exercised its discretion to direct that the issue be determined even if it subsequently became academic. Directions were given for the substantive hearing listed for 2 October 2018.