London Borough of Sutton v Jade Betts

Permission to appeal may be granted despite an appeal being academic between the parties only in exceptional circumstances. The court should ordinarily be satisfied that the appeal raises a point of general importance, that the respondent consents or is fully indemnified against costs and is not otherwise prejudiced, and that both sides’ arguments will be fully and properly ventilated. General importance alone is insufficient. Where costs are the only live issue, the court should be especially cautious and require clear evidence that further expenditure is justified. Procedural context matters: decisions reached after permission and full argument, or with the parties’ agreement, may provide little guidance on a contested application made before permission. Refusing permission does not establish that the decision below was correct.

Ms Betts appealed under section 204 of the Housing Act 1996 against Sutton’s decision that its housing duty had ended because she had voluntarily ceased occupying accommodation it had procured. HHJ Genn allowed the appeal, finding that neither the original decision maker nor the reviewing officer had considered whether it was reasonable for Ms Betts to continue occupying the accommodation. A minded-to-find letter should have been issued under the Homelessness (Review Procedure) Regulations 2018.

Sutton sought permission for a second appeal. By then Ms Betts had found accommodation, objected to the appeal proceeding and had not been offered a costs indemnity. The central issue was whether the academic appeal should nevertheless proceed, particularly given the costs order below.

Permission to appeal refused. The substantive dispute had become academic because Ms Betts had found accommodation. The practical issue remaining between the parties concerned costs.

1. The grant of permission is discretionary. Rule 52.7 of the Civil Procedure Rules 1998 limits that discretion for a second appeal but does not remove it. Applying Hutcheson v Popdog Ltd [2011] EWCA Civ 1450, save in exceptional circumstances the court should be satisfied that the appeal raises a point of general importance, that the respondent agrees or is completely indemnified against costs and is not otherwise inappropriately prejudiced, and that both sides’ arguments will be fully and properly ventilated.
2. The first criterion was accepted because Elizabeth Laing LJ had considered three grounds arguable and had tentatively concluded that the second-appeal test was satisfied. The remaining criteria were not met. Ms Betts opposed the appeal, no costs indemnity had been offered, and it was unlikely that she would obtain legal aid for an academic appeal. The court was also unlikely to receive full argument from both sides.
3. Where costs are the only live issue, particular caution is required. The claimed costs were unassessed and, even if the appeal succeeded, Sutton would probably obtain no enforceable costs order. It would therefore incur probably irrecoverable costs merely to discharge the costs order below. That was disproportionate, consistently with Hamnett v Essex CC [2017] EWCA Civ 6.
4. R (on the application of L) v Devon County Council [2021] EWCA Civ 358, R (on the application of Brooks) v Islington LBC [2015] EWHC 2657 (Admin), R (on the application of SB) v Kensington and Chelsea RLBC [2023] EWCA Civ 924 and Haringey LBC v Simawi [2018] EWHC 290 (QB) were distinguishable because of their different procedural contexts, including prior permission, full argument, the parties’ agreement, or the greater precedential value of a High Court decision.
5. A Circuit judge’s County Court decision does not carry the same precedential value as a High Court judgment. The refusal of permission did not establish that HHJ Genn’s decision was correct. Permission to appeal was refused.

• Court of Appeal (Civil Division): Permission to appeal refused in [2024] EWCA Civ 1492.
• Central London County Court: On 6 March 2024 HHJ Genn allowed Ms Betts’ homelessness appeal under section 204 of the Housing Act 1996, finding deficiencies in the original decision and review.