EUROPEAN COMMISSION OF HUMAN RIGHTS
Council of Europe
Strasbourg, France


APPLICATION


Under Article 25 of the European Convention on Human Rights and Rules 43 and 44 of the Rules of Procedure of the Commission

IMPORTANT
This application is a formal legal document and may affect your rights and obligations

I THE PARTIES

a. The applicant William St Julian Arabin
Nationality British
Profession Third Circuit Judge at the Old Bailey
Date and place of birth July 4th 1776
Domicile Great Britain
At present at
Telephone No:

b. The High Contracting Party
Great Britain

The Respondents 1.
Representative
Address
2. The London Rent Assessment Committee
Representative The Treasury Solicitor
Address Queen Anne’s Chambers, 28 Broadway, London S.W.1H 9JS


This Appeal is from a decision of the High Court of Justice, Queen’s Bench Division, Divisional Court and from a decision of the Court of Appeal

II STATEMENT OF FACTS

THE DECISIONS AGAINST WHICH APPLICATION UNDER ARTICLES 6 & 50 ARE MADE

Appeal is made to the European Court of Justice from an exercise of discretion of Mr Justice Hidden dated 30th June 1995 in the Queen's Bench Divisional Court sitting as an appellate procedure from a decision of the London Rent Assessment Committee dated 1st September 1993. In exercising his discretion the judge stated that he was not going to rule on the law which he had directed the parties to argue. In addition he stated that he was denying leave to appeal to the Court of Appeal from his decision. Appeal is also made to this court from a decision of the Court of Appeal dated 1st November 1995 denying leave to appeal from the decision of the Divisional Court..

THE FACTS and THE BACKGROUND TO THE APPEAL TO THE DIVISIONAL COURT

This matter originally concerned an assessment of rent made by the London Rent Assessment Committee and the effect of a tenant’s full repairing covenant on the rent level on a flat known as Flat 36, Blackacre, London.

Historically it had been specifically stated on bi-annual occasions on which rent had been assessed on this property that the rent level would be adjusted downwards to take into account the repairing covenant in the lease which put full liability on the tenant to pay for all repairs to the flat.

The Rent Assessment Committee assessed the rent on two flats at the same time. The two flats are identical in size and layout. The other flat (flat 5) was subject to a statutary provision set out in the Housing Act which put liability to pay for repairs on the landlord. The Committee stated that they were assessing as if there were a liability on the landlord to perform repairs to flat 36 as well. This was on the basis of an alleged oral statement by a landlord’s representative that if repairs were needed, the landlord would perform them to Flat 36 according to the terms of a statute which it was conceded did not apply to Flat 36. There was no evidence that there had ever been any such admission by the landlord’s representative at the Committee hearing (although it was referred to by the Committee, no record of it exists) and it was not suggested at any time that had there been any such admission it would have been enforceable by the tenant.. Indeed, even the landlord’s record of the Committee hearing stated that the statement that the landlord would do the repairs had been implied by the Committee in relation to flat 36, her evidence to the Committee being that she had told the Committee that liability for the repairs were on the tenant.. Any such statement, even if it had been made and even if it were in some way enforceable, could not bind any subsequent purchaser who would take with the benefit of the repairing covenant as well as the increased rent..
Evidence and figures were presented to the Commmittee by the applicant which showed that there had been no actual increase in market rents over the period of assessment in similar freely rented flats. The evidence before the Committee was that because of a slump in the property market, over the period on question the capital value of the flat had actually diminished by around 50%.

The Rent Assessment Committee increased the rent on Flat 36 from £5850 per annum to £7800 per annum.

Despite the similarity of the flats and the fact that the repairing covenant put liability on the landlord in respect of flat 5, the Committee actually assessed the rent on flat 5 at a level £200 lower than flat 36.

This appeal from the Rent Assessment Committee took around two years to come to the top of the list and be heard before the Divisional Court and a few days prior to the hearing date in the Divisional Court, the next bi-annual application to assess the rent was heard. At that next hearing, the Rent Officer noted the mistake by the Committee, asked the landlord’s representative if there was in fact a liability on the landlord to perform repairs and when she said that there was not, stated that he would in effect act to correct that mistake and revise the old rent and his current assessment downwards to reflect the tenant’s repairing covenant.

THE DIVISIONAL COURT HEARINGS

The matter was heard before Mr Justice Hidden, initially on an application to adjourn;

1. The Application for Adjournment of the Divisional Court Hearing

On 3rd June 1995, one week prior to the date set for the hearing of the appeal in the Divisional Court, a motion was brought by the applicant to the Divisional Court to adjourn, taking the matter out of the lists pending possible settlement.
At the time of the motion it seemed that a settlement was the most appropriate course as the landlords had taken a decision to sell the building and had stated an intention to sell it to a qualifying majority of the tenants, including the applicant. In addition the further rent assessment hearing had just taken place at which the Rent Officer had stated that if there were a liability on the tenant to perform repairs, he acknowledged that the Committee had made a mistake in taking this covenant into account against the tenant and that he would act to correct the mistake/misapprehension of the Committee and would be ordering both the old rent and the new rent to be adjusted downwards accordingly.

A further reason for the adjournment was that the applicant, could not be present at court on the days for which the matter was listed.

The applicant had been dealing directly with the managing director of the landlord company in the purchase of the building and the solicitors for the landlord company appeared unaware of either the decision to sell the building or the dealings between the applicant and the landlord’s managing director. Unbeknown to the applicant, the landlord appears to have been trying to use the promise to sell the building to the applicant as a ploy to induce a settlement in the Divisional Court appeal from the Committee and have the applicant pay his costs of the appeal. In fact, the landlord took no steps whatsoever to enter into any negotiations of any type with the applicant or any other tenant and shortly thereafter sold the building to a third party.

In furtherance of the application for the adjournment, the applicant had written a letter to the solicitors for the landlords and for the Committee mentioning the facts and matters which were raised at the hearing of the motion to adjourn: That in the event that the Committee’s mistake or misapprehension on the rent be corrected by the Rent Officer there may not ultimately be any issue as to rent, and that if the landlord did in fact sell the building to the applicant, the appeal ought to be discontinued. As the applicant was not at any stage accepting that the appeal was wrongly taken or was wrong in law, (indeed, it was at all times the position of the applicant that the appeal was a good one and was entirely correct on the law) it was proposed that there should be no waste of Court time and no order as to costs. The solicitors for the landlord and the Committee had responded refusing to settle the matter and refusing to consent to the adjournment..

Mr Justice Hidden denied the application for the adjournment, directing that the applicant instruct legal representatives, (stating that if the applicant needed to be out of the country, he could do so by fax if necessary).

After the solicitors for the landlord and the Committee had refused to settle as mentioned, no further mention was made of the settlement, nor of the reasons behind the settlement. No mention was made at any later stage of the proposed purchase of the building on the ground that it was completely irrelevant to the applicant’s rights, to the arguments being presented, to the facts, to the decision and to the law governing the decision the Divisional Court had to make on the Rent Assessment Committee action.

2. The Hearing of the Appeal from the Rent Assessment Committee

Hidden J directed that the parties argue the case for two days, directed that the parties file skeleton arguments and heard all arguments on the law presented by both sides. During that hearing, he even adjourned for a week pending the filing of further extensive affidavits and transcripts on the facts and the law concerning the repairing covenant point (referred to by the courts as the Section 11 point).

Although the only argument made by the applicant and the only argument heard by the Court concerned the S.11 repairing covenant argument, after the filing of those affidavits, it became clear that the applicant’s case was even stronger than had been thought and that in effect, there were no real contrary arguments being set out either in skeleton or in detail by the respondents.

The applicant submitted that the decision of the Committee to take any landlord’s repairing ‘obligation’ into account in assessing the rent on flat 36 was wrong at law and was mistaken on the facts because the Committee had applied a wrong interpretation of their powers to fix a rent based on a tenant's full repairing covenant which they construed as a landlord's full repairing covenant. The further affidavits which Hidden J directed be filed during the course of the proceedings in furtherance of the repairing covenant argument actually showed that there was some question as to whether the landlord’s representative had in fact made the ‘concession’ at the hearing. It was the applicant’s argument that although such unenforceable concessions are often made by landlord’s representatives, no concession had ever been made in respect of flat 36 and the statement that there had been any landlord’s concession on the repairs issue had been a simple misapprehension on the part of the Committee. It was further submitted to both the Divisional Court (and to the Court of Appeal) that a rent level fixed with a full repairing covenant on the tenant should be lower than a rent fixed with a repairing covenant on the landlord. Authorities were cited to the court to support that proposition. Lastly it was submitted by the applicant that the lack of clarity in the Committee’s statements on the S.11 point mandated that the Divisional Court allow the appeal and remit the matter back to the Committee for re-assessment. This point referred to the contradictory statements made by the Committee that they “had regard to this circumstance in determining the fair rent” but that at the same time, in reference to the repairing covenant they said “We except, of course, any work incumbent on the landlords to carry our under S.11 of the Housing Act 1985, (the obligations being accepted by them, notwithstanding the strict legal position)”

In his judgment (and without permitting either party to argue the point in any way), the judge stated that he was exercising his discretion not to rule on the law and was going to find against the applicant because the applicant should have settled the case (on which, it is submitted, the applicant was entirely correct on the law) and paid everyone’s costs at the date of the initial application. The judge said he was doing this because any amounts at issue would be very small as the applicant had mentioned at that earlier stage that the Rent Officer had said that he would correct the Committee’s mistake so there should not be any further dispute as to figures.

Hidden J then denied the applicant leave to appeal to the Court of Appeal.

THE APPEAL TO THE COURT OF APPEAL

Appeal was taken by application to the Court of Appeal for leave. The initial appeal for leave is made on paper to a single judge who denied leave.

In the denial, the single judge of the Court of Appeal ruled that it was quite impossible to fault the exercise of discretion of Hidden J. No mention was made of the governing law as set out in the applicant’s skeleton argument to the Court of Appeal.

Further appeal was taken to the full Court of Appeal. Skeleton arguments were lodged which were considered by the Court and argument was heard on the application.

The full Court said that they would not rule on the law set out in the skeleton arguments as they would only rule on the exercise of Mr Justice Hidden’s discretion. The full Court of Appeal intimated that it seemed that the tenant was probably correct in alleging that the rent had in fact been fixed by the Committee at the wrong level and that the rent as fixed may have been too high because the Committee had taken the repairing covenant into account against the tenant. The Court ruled that even though it seemed that the applicant was probably correct on the law, the applicant was somehow bound by the letter proposing settlement. The Court of Appeal described the letter as being the “key” and that in view of the facts and matters stated in that letter, amounts at issue (excepting costs) were small and the applicant was somehow not entitled to have the matter adjudicated by either the Divisional Court or the Court of Appeal.






III. STATEMENT OF ALLEGED VIOLATIONS OF THE CONVENTION AND OF RELEVANT ARGUMENTS

Article 6 (1) of the Convention for the of Human Rights and Fundamental Freedoms states:

“In the determination of his civil rights and obligations,`everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

Article 50 states that the function of the European Court of Human Rights is to decide whether a decision or measure taken by a legal authority of a contracting state is completely or partially in conflict with the obligations arising in the convention.


This appeal arises as a result of a systemic failure in the legal process which can operate to deny any element of justice to a litigator in the U.K. which results in that litigator being denied his fundamental right to have his case heard by the english courts. The problem concerns judges who listen to points made by parties to litigation and then give judgments on matters which were not argued and which did not form the basis of either parties’ case without giving those parties any opportunity to respond to the points which are going to govern the judgments. In the event of a judge basing his finding on facts known to him which are not argued, there is no procedure in the UK courts for the introduction of relevant argument after judgment, even in a situation in which the judge was completely wrong on the point he was making such as happened in this case in which he thought that the amounts in question had been rendered de minimis by the Rent Officer’s adjustment as well as sale of the building neither of which had in fact happened. There is no procedure in England whereby a party can bring a motion to re-argue any matter or introduce new evidence after judgment.

In so doing the courts have breached elementary rules of natural justice; in particular the audi alteram partem rule (underlying Article 6) which states that parties must be given a fair opportunity to put their case to the courts.


THE APPLICANT HAS BEEN DENIED A FAIR HEARING UNDER ARTICLES 6 AND 50 IN THAT



He has been denied a hearing on the law

In so far as the Divisional Court refused to rule (and the Court of Appeal denied leave to appeal) on the law governing the application, he has been denied a fair hearing on the law

The Court of Appeal was wrong in law and in fact in ruling that the applicant should not have taken an appeal from the Committee as the figures at issue were not all that great. The Court of Appeal seems to have assumed that in view of the proposed settlement, all figures would eventually be worked out in the purchase negotiations and that in that event, there was no argument on the figures which the Courts needed to resolve. They were wrong on that point because firstly, the sale had not taken place; Secondly even had the sale taken place, there is no way of arranging any such correction to any figures in a situation in which the applicant buys the building not on his own behalf but as part of a qualifying majority of tenants in the building. Thirdly, there is no way of putting any obligation on the landlord to negotiate this point to his own detriment especially after the courts have refused to rule on the law and find in the applicant’s favour and direct that the rent has been fixed at the wrong level. This is just the kind of adjudication which a party to litigation under Articles 6 and 50 is entitled to expect. And which has been denied in this case. Fourthly even if a purchase of the building were negotiated, the rent would still have been fixed at the wrong level from the date of the assessment up until the date of transfer of the building to the applicant. As any such transfer negotiations could well be lengthy, a greatly overstated rent would be being paid from the date of the Committee’s wrong assessment up until that transfer had take place. Far from being de minimis, under those circumstances the rent overpaid could be (and is) very great indeed. Alternatively, if the judge exercised his discretion not to hear case on the basis that the figures were not all that great because the Rent Officer had stated that he would act to correct the Committee’s mistake, the judge was wrong on that point because the Rent Officer is not empowered to act and did not act to correct any such mistake and the Court of Appeal was wrong in denying leave to appeal on the showing by the applicant at the hearing that no such correction had been made.

He has been bound by the terms of a letter which he wrote when the circumstances were completely different, which he was not allowed to explain, argue or revise, which he never put in issue at the hearing, which became irrelevant after the landlord sold the building to a third party, which cannot operate to bind the applicant in any way and did not operate to discontinue the appeal in any way, on which the respondents refused to negotiate and on which the requested adjournment was not granted. In denying the adjournment, it is submitted that Hidden J was in whole or in part, ruling that he would not take into account the decision to sell the building and was not concerned with waiting until the Rent Officer’s further assessment was issued to see if it in effect rendered the appeal academic and/or the amounts in issue de minimis. But it is monstrous that the judge could refuse to accept the letter as a reason to adjourn the case even for a few days but accept that the same letter should (two weeks later) operate to prevent the whole case being argued on the law after he had himself directed that the case be so argued.

The judge was, simply put, wrong on the point which he made as the basis for his decision not to rule on the law. Hidden J thought that the amounts had become de minimis because the Rent Officer had corrected the mistake and applicant had bought the building. He had no basis whatsoever for thinking this, as the point was not mentioned in the argument on which he was to rule, the Rent Officer had not and legally could not correct anything the Committee had done and the building had in fact been sold to a third party. His failure to give the parties an opportunity to explain the (it is submitted, irrelevant) reasons why the case did not settle as hoped ought properly to have formed the basis for the Court of Appeal’s finding in favour of the applicant on the law

The Court of Appeal denied the applicant a fair hearing by refusing to hear a case in which it admitted that the applicant was probably correct on the law.

The Court of Appeal was wrong in refusing to hear a case in which it admitted that the applicant was probably correct on the law in a situation in which the denial of leave to appeal operates as enforcement of a costs order against the applicant to the tune of tens of thousands of pounds.

The Court of Appeal was wrong in refusing to hear a case on the ground that the point was no longer in issue when it was never disputed that the applicant remained at all material times a statutory tenant whose rent had been fixed at a level which was wrong at law and which will continue to be fixed at a wrong level. As such the erroneous part of the rent will form the basis for all further rent assessments and will therefore be magnified in each subsequent rent assessment by the Rent Officer.

The Court of Appeal was wrong and acted contrary to the principals of law underlying Articles 6 and 50 in refusing to hear a case on the basis that they thought that the only point at issue might be the question of costs in which the bulk of the costs had been incurred because Hidden J. denied the application for the adjournment and direction that the applicant instruct counsel, file skeleton arguments and argue the case stated in the skeleton arguments. on the law which he then wrongly failed or refused to consider.

In so far as the Court of Appeal denied the application for leave to appeal against the judge’s exercise of discretion because they said that the only question for resolution was the question of costs, they were wrong in law for the reasons mentioned herein and in a situation in which the applicant was correct on the law.

The Court of Appeal was wrong in refusing to grant leave to hear a case because the amount in consideration was relatively small. The matter was before the courts because the respondents had refused to correct the error or negotiate the matter on which the applicant was correct on the law. In so far as the applicant was making application to correct the error of the Committee, the applicant had every right under Article 6 to have the matter adjudicated and put right by a body properly acting as an appellate body to correct errors of law or fact which had been made by the Committee.

The Court of Appeal was wrong in law in finding that there is any de minimis argument which can be raised against an applicant who is correct on the law in a situation in which the proper procedure is to appeal to the Divisional Court and then the Court of Appeal. There are limited occasions for appeal from a finding of the Committee. One of those proper occasions is that the Committee was wrong in law. Practically the only reason for an application to the Rent Assessment Committee is for the Committee to fix a rent level and the only reason why any appeal would be taken from such a determination would be that the committee took some factor into account wrongly and therefore fixed the rent at a level other than the proper level. As the rent levels are all within a certain band for similar properties, a statement by a higher court that a judge has a discretion to prevent an appeal from a Committee decision or that an error of the tribunal is de minimis operates in effect to prevent almost any appeal from a Rent Assessment Committee and is blatantly contrary to the provisions of Article 6.

In this case however, the error of law was such that the error in determining the rent level was probably the largest error which the Committee could have made, and was one on which numerous other rent levels for similar properties (both in the building and in the locality) and all later rent assessments will be based. It is therefore outrageous to find that any such level is de minimis. If the court feels that it is an improper procedure to take up the time of the Divisional Court or the Court of Appeal with what they consider smaller matters, the proper course is for legislation to be passed which directs that the avenue of appeal should be to a different court or body. It is blatantly contrary to the intention and to the specific wording of Article 6 of the Convention for any court to state that the proper designated court will not adjudicate the matter. Especially after that court has specifically directed an appellant to expend very large sums of money in instructing counsel to argue the points of law. More especially when that appellant is correct on the law and is entitled to have judgment on the point of law with costs.
THE COMMISSION OUGHT TO INTERVENE UNDER ARTICLE 50 IN THAT:

It is crucial that the European Court of Justice hear this case for three further general reasons: It is the function of this court under Article 50 to act in cases where a decision or measure taken by a legal authority of a contracting state is completely or partially in conflict with the obligations arising in the convention. Residents of contracting states ought to be able to rely on the courts and in the final event on this court to enforce those rights and obligations.

The qualifying majority of the tenants does not include all the statutory tenants in the building most of whom would have continued as statutory tenants even had the applicant bought the building as part of a qualifying majority. Rents are assessed bi-annually so in the time period since this rent was assessed, all the other rents in the building have been re-assessed upwards on the basis of the rent assessed in this case. Quite apart from all other cases in England in which landlords make similar unenforceable oral promises to perform repairs, the applicant and all other tenants in this building will have been placing their trust in the courts to issue a decision in this case in order that they can use it as a test case to apply to have their rent assessments adjusted properly and in accordance with the law. Under the precedent system those tenants should have been able to rely on the result of this application to the Divisional Court and should not have had to make their own individual identical applications to have the court adjudicate their own identical leases. Because of the two year delay in the hearing of this case, in relying on the english courts to make the just determination, those other tenants have been in effect denied their opportunity to make such an application.

In denying the appeal and leave to appeal, the Courts have given the impression that Rent Officers and Rent Assessment Committees can fix rents without regard to repairing covenants. There is very little case law on the subject and in most cases which have gone to appeal from findings of the Rent Assessment Committee, the courts have characterised errors as matters within the personal knowledge of the Committee members and have stated that they will not intervene to correct those errors made by the Committee. Alternatively the english courts characterise matters which give rise to injustice in applications to the Rent Assessment Committees as questions of fact and therefore non-appealable. It was strongly submitted in this case that if there is an obligation on a tenant to perform repairs, this should result in a major adjustment of rent downwards as such an obligation may well result in the tenant having to incur significant costs on a property. In the alternative it is fairly common for landlords to attempt to influence Rent Assessment Committees by suggesting that they will be performing repairs to a property when in fact the liability for those repairs rests wholly with the tenant. This would leave a tenant in the position of being obliged by the lease to carry out expensive capital repairs to a property while the landlord can manage to have the rent fixed as if the obligation was on the landlord to perform those repairs.

The judgment in this case will in effect often direct tenants to perform repairs of a capital nature, the benefit for which accrues to the landlord in the capital value of his building. Whether or not there was in this case any oral concession made by the landlords on the repairs issue, it is crucial that a direction be given by the courts that such concessions (which are often given by landlords at Rent Officer or Rent Assessment Committee hearings in order to increase rent) are unenforceable all over England and should be ignored by Rent Officers and the Rent Assessment Committees. If there is going to be any obligation on tenants of rental property to perform repairs of a capital nature to buildings belonging to their landlords, there should be a fair opportunity given to rental tenants to negotiate rent based on such obligations. It is wholly inequitable that landlords should be able to put enforceable obligations on tenants to perform such repairs and then tell an assessment body that the rent should be raised because the landlord will do repairs In abnegating from responsibility to rule on the matter and in denying justice contrary to Article 6 in this case, the Divisional Court and the Court of Appeal has sent exactly the opposite message to those responsible for assessing rent.


IV STATEMENT RELATIVE TO ARTICLE 26 OF THE CONVENTION

The applicant has been denied justice at each and every stage of these proceedings as set out herein. The procedures before the Divisional Court was an appeal from the decision