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Devon Chambers in the Supreme Court 
September 2014
Jo Martin and Russell James
According to folk lore you can wait a long time for a bus to show up and then two or three turn up at once. As with buses - for Devon Chambers - so with cases to be heard at the Supreme Court. In the 25 year plus history of Devon Chambers, whilst there have been plenty of appearances in the Court of Appeal, no member of chambers has appeared in either the Supreme Court or its ancestor the House of Lords.

Until now.

Now Chambers has two cases due to be heard in the Supreme Court in the next eight months.
The cases couldn't be more different. One delves into a specific issue relating to criminal confiscation; the other to a broader issue to the approach of the courts to a disability discrimination defence to residential possession proceedings. Their route to the Supreme Court was similarly very different - highlighting the procedural variations between civil and criminal cases as they progress to the highest court in the land.
 
The Confiscation Case
Having been convicted in Truro Crown Court of multiple charges of Handling Stolen Goods, Jack Harvey was made subject to a £1.2 million confiscation order in April 2012 under the Proceeds of Crime Act (POCA). He appealed to the Court of Appeal (Criminal Division). As is required in criminal cases, a lengthy advice on appeal was drafted containing four grounds which was lodged, within 28 days, in May 2012 for consideration by the single judge.
Leave was finally granted on all four grounds in December 2012 and in May 2013 there was a hearing before the full court (Lord Justice Jackson, Mr Justice Wyn Williams and The Recorder of Preston). The Court unanimously dismissed the three substantive grounds of appeal but allowed one ancillary one (reducing the time to be served in default of payment) R-v-Jack Harvey [2013] EWCA Crim 1104.
One substantive ground of appeal however raised a novel area of law in short the issue was "whether, in assessing the amount of benefit obtained by a company for the purpose of confiscation, any VAT accounted for and/or paid to HMRC should be subtracted from the turnover figure prior to any fianl calculation of the benefit figure." The Court of Appeal considered themselves bound by an earlier Court of Appeal case (R-v-Del Basso and Goodwin [2010] EWCA Crim 1119) which had interpreted  POCA as saying that any expenses related to the obtaining of the proceeds of crime should not be deducted  when considering the "benefit" figure. The Court however commented that they were unsure if Del Basso would be so decided in light of the relatively recent Supreme Court judgement of R v Waya (Appellant) [2012] UKSC 51.
Following the Court of Appeal's judgment in July 2013 the decision was made to seek to appeal to the Supreme Court. In criminal cases (unlike civil cases) in order to appeal to the Supreme Court, there are two obstacles to be overcome. Firstly, the Court of Appeal must certify that there is a 'point of general public importance'. If the Court does not so certify, no appeal is possible to the Supreme Court and instead the only avenue of appeal is the European Court of Human Rights. Secondly leave must be granted to appeal to the Supreme Court - either by the Court of Appeal or by the Supreme Court itself. Both applications again need to be made within 28 days.
An application was made to the Court of Appeal for a certificate and for leave in July 2013. On the 22nd October 2013 the Court of Appeal certified the question set out in bold above. However, they refused leave to appeal. This was apparently completely normal.
As a result, again within a 28 day timeframe, an application was lodged with the Supreme Court. Fortunately the Supreme Court website www.supremecourt.uk sets out all of the forms to be used and the procedures peculiar to the Supreme Court. The Supreme Court Office are also very happy to help the uninitiated. The various practice directions set out how any documents should be formatted (at least 12 font) and bound (comb bound) and the number of copies to be lodged (at least 8 on each occasion).
The application for leave was duly lodged in November 2013 and, despite the CPS opposing the application, on the 9th April 2014, having been considered by Lords Mance, Carnwath and Toulson leave to appeal was granted.
Following leave being granted there then follows a strict timetable per Practice Directions 5 and 6. The first crucial document which had to be served within 112 days of leave being granted was an 'Agreed Statement of Facts and Issues' which has to be agreed between the defence (Applicant) and Crown (Respondent). All ither timescales (service of skeleton arguments and bundles of cases) are worked backwards from the hearing date - which for this case is the 25th March 2015.
So, in this case - despite tight timescales on the lawyers - some 3 years after the confiscation order was made, there will, finally, be a hearing in the Supreme Court.

And what of the defendant, Jack Harvey.

He has now served his sentence and been released from prison. Enforcement proceedings have been, after considerable tooing and froing, put on hold. But, the bad news is, that interest (at a rate of 6%) continues to be applied to that part of the confiscation order that is still unpaid. He may, if successful have over £250,000 taken off his confiscation order, but with the interest continuing to run, it may prove to be a pyrrhic victory.
Jack Harvey has been legally aided throughout because his assets remain restrained pending the satisfaction of the confiscation order (albeit he chose to pay privately - with the help of friends - for a QC at the Court of Appeal; that QC is now also on the legal certificate for the Supreme Court) 

                                                                                               Jo Martin      
The Housing Case
The Facts

Mr Akerman-Livingstone suffers with severe prolonged duress stress disorder and has a protected characteristic, namely, a disability for the purposes of the Equality Act 2010. In August 2010 Mr Akerman-Livingstone was granted a tenancy of a property in Glastonbury by Aster Communities Limited who were assisting Mendip District Council to fulfill their homelessness obligations. When the council considered that they had discharged their obligations to Mr Akerman-Livingstone, Aster served Mr Akerman-Livingstone with notice to quit this property.
When Aster issued possession proceedings Mr Akerman-Livingstone raised a defence which amongst other things asserted that to evict him would amount to discrimination on grounds of his disability, contrary to Sections 15 and 35 of the Equality Act 2010.

The Route to the Supreme Court

On 7th June 2013 Aster's claim for possession came before HHJ Denyer QC sitting at the Bristol County Court to determine on a summary basis whether or not Mr Akerman-Livingstone's defence should proceed to trial. HHJ Denyer QC adopted the same approach when considering this defence as applies to human rights defences under Article 8 of the European Convention on Human Rights and decided that Mr Akerman-Livingstone's defence was not seriously arguable and therefore made a possession order.
HHJ Denyer QC granted Mr Akerman-Livingstone permission to appeal against his decision the same day, and an appeal was heard by Cranston J in October 2013. Cranston J dismissed this appeal.
Mr Akerman-Livingstone sought and obtained permission to appeal from the Court of Appeal and the appeal was heard on 12th June 2014 when Mr Akerman-Livingstone was represetned by Shelter Legal Services, Russell James of Devon Chambers and Jan Luba QC. On 30th July 2014 the Court of Appeal gave judgement ([2014] EWCA Civ 1081) dismissing Mr Akerman-Livingstone's appeal. The court of Appeal concluded that the same approach applies to the proportionality assessment under s15 of the Equality Act 2010 as applies when considering Article 8. The Court of Appeal further held that the countervailing interest if the social landlord as a very strong one, which in most cases would outweigh the needs of the tenant. The Court of Appeal therefore concluded that the judge was right to dismiss the defence summarily.
Acting with urgency, the day after the Court of Appeal handed down the judgment the Supreme Court granted permission to appeal and stayed execution of the possession order in the meantime.

Observation

The Last time our highest court (then the House of Lords) considered a case concerned with disability discrimination defences to possession proceedings was in Lewisham LBC v Malcolm [2008] 1AC 1399. Following this Parliament enacted the Equality Act 2010. With the Equality Act 2010 one of the objectives was to harmonise discrimination law, and Parliament specifically chose to provide a defence to eviction based on discrimination. It is difficult to reconcile the Court of Appeal's approach with these.
The Supreme Court will hear this expedited appeal in December this year and the implications willl be far reaching. It will be the first time the Supreme Court has had to deal with the Equality Act 2010 in a housing context and it is likely to consider whether the approach of the Court of Appeal that discrimination defences will only be available in rare cases is correct, or alternatively whether the view of Baroness Hale in Malcolm under the predecessor legislation when she said that she would expect discrimination defences to be made out quite often, should prevail. Either way this appeal is likely to be of huge importance to anyone practising in Housing of Discrimination Law, and in particular to anyone seeking to pursue a discrimination defence to possession proceedings.

                                                                                              Russell James
Conclusion
Criminal or civil, focused or far reaching, the routes to the Supreme Court can be very different, but once a case reaches this pinnacle a universal and unified procedure applies under the Supreme Court Rules. The two cases will make legal as well as Devon Chambers history and both serve to demonstrate the important role of Legal Aid in our justice system. The journeys continue and no doubt at their conclusion further newsletters will follow.

Jo and Russell are both thrilled to be going to the Supreme Court. It will be fascinating for them and for Devon Chambers. We hope more buses come along soon.
Russell James
Russelljames@devonchambers.co.uk
Russell specialises in Property Litigation, Housing and Homelessness and Civil and Commercial Litigation. 

Our Civil Team:
Stuart Frampton | Russell James | Garth Richardson |  Edward Bailey
Scott Horner | Jennifer Tear
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