The only potential remedy where a judge has refused permission to appeal is judicial review but the granting of judicial review in such circumstances is wholly exceptional
In August 1999, Mr and Mrs Brill leased a house they owned to an American company, Lockson Holdings Inc. That company employed Mr Vucinic. The company fell into financial difficulties and it stopped paying the rent. It also stopped paying Mr Vucinic, who, as a result, was unemployed and dependent on state benefits. Mr and Mrs Brill agreed to allow Mr and Mrs Vucinic and their family to continue living in the premises. In September 2001, Mr and Mrs Brill granted a new lease of the premises to Mr and Mrs Vucinic. The rent was £3,687 per calendar month. However, Mr and Mrs Brill only ever received payments of the housing benefit that the local authority paid on behalf of Mr and Mrs Vucinic. The amount of that housing benefit was very considerably less than the contractual rent. As a result, Mr and Mrs Brill issued a claim for possession and for arrears of rent, relying on Housing Act 1988 Sch 2 Grounds 8, 10 and 11. In October 2015, Deputy District Judge Wootton made an order for possession and ordered Mr and Mrs Vucinic to pay £167,114 arrears of rent. Mr and Mrs Vucinic gave notice of appeal against that decision. Their application for permission was heard and refused by HHJ Hand QC in December 2015. He also refused an application for a stay of the warrant of possession. He concluded that, even on the most optimistic appraisal of Mr Vucinic’s submissions, he could have no defence based on an estoppel because any estoppel was ended by the issuing of the notice claiming possession. Nothing that Mr Vucinic had put before the court could amount to a defence, because Mr Vucinic had not demonstrated anything other than a very long suspension of the Brills’ rights under the tenancy agreement. They were always entitled to end that suspension. In January 2016, Mr and Mrs Vucinic applied for judicial review seeking to challenge HHJ Hand QC’s decision.
They argued that the documents that they put before the court indicated that they genuinely disputed the claim for possession on grounds which ought to have appeared to the deputy district judge to be substantial (CPR 55.8) and that she should therefore have given directions for a contested hearing at which the oral testimony of both parties could be considered by the court.
Holroyde J dismissed the application for judicial review. He noted that the only potential remedy where a judge has refused permission to appeal is judicial review: ‘It is, however, clear on authority that in circumstances such as these, the granting of judicial review will be wholly exceptional’ (para 30) (R (Strickson) v Preston CC [2007] EWCA Civ 1132). The insuperable difficulty faced by Mr and Mrs Vucinic was that their arguments were heard and considered by the deputy district judge who, on the basis of all the material then before the court, found in favour of Mr and Mrs Brill. In Holroyde J’s view, she was entitled to do so:
‘The passage of the years may well be unusual but it does not, in itself, mean that Mr and Mrs Brill had in any way abandoned their original agreement or agreed to vary it or agreed to replace it with a different agreement’ (para 38).
As regards HHJ Hand QC’s refusal of permission:
‘Having … identified the hypothetical possibilities, [he] concluded, and in my view correctly, that none of them had any real prospect of success. He was plainly entitled so to conclude. Indeed, in my view, it was the inevitable conclusion. … This case … does not come within or anywhere near within the Strickson test’ (paras 42 and 43).