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Judge gives guidance on application to Court of Appeal for interim relief

Lord Justice Hickinbottom has given guidance on making applications to the Court of Appeal for interim relief, in a housing case he declined to conclude because it had become academic.

The case of Nolson, R (on the application of) v Stevenage Borough Council [2020] EWCA Civ 379 concerned a dispute over intentional homelessness between a local resident, Vincent Nolson, and Stevenage Borough Council.

Mr Nolson’s case had since been resolved but Hickinbottom LJ noted: “This application raises an important issue of practice in relation to applications to the court, notably applications for interim relief.”

While he refused to reopen the appeal he said such applications should “generally indicate whether [the applicant] wishes to be heard orally or whether he is content for the application to be dealt with on the papers alone.

“Whilst in itself that will not prevent a later application under CPR rule 3.3(5) (even by the applicant himself), it will give the other parties an opportunity to consent to the application being dealt with on the papers alone, which would prevent such a further application.”

The judge also said that where the court refuses an application on the papers, the order should be endorsed with a statement of the right to make an application to have the order set aside, varied or stayed under CPR rule 3.3(5), unless both parties had consented to a paper determination, when the order would be final.

Any application for an adverse decision made on the papers to be reconsidered at an oral hearing should clearly state that it is made under CPR rule 3.3(5).

Hickinbottom LJ said the facts behind the litigation between Mr Nolson and Stevenage were “lengthy and complex” but turned on whether he had become intentionally homeless.

Stevenage considered he had and Mr Nolson applied to the Administrative Court for an urgent oral hearing to reconsider a decision to refuse him interim relief on this. Anthony Metzer QC, sitting as a deputy High Court judge, concluded that the court did not have jurisdiction to consider a renewal of the application for interim relief.

Mr Nolson sought to appeal and Hickinbottom LJ refused permission, after which he applied for a review of that refusal under CPR rule 52.30.

The judge said Mr Nolson’s appeal pursuant to section 204 of the Housing Act 1996 was heard in November 2019 and the decision that he was intentionally homeless was quashed after which he accepted accommodation from Stevenage.

He said the only remaining ground of appeal was that Mr Metzer had been wrong to refuse jurisdiction on the oral renewal of the application for interim relief.

“It is clear that the deputy judge did have jurisdiction under CPR 3.3(5)…and he was wrong to refuse jurisdiction,” Hickinbottom LJ said.

“Had the appeal been anything more than empty, that may have been a good ground upon which permission to appeal (and, now, the application to reinstate the appeal) might have been granted. However, it is common ground that the appeal is now entirely academic.”

Mark Smulian

Fraser Public Sector 600

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