back to housing law    back to home

        Who is Jesus Sanjuan Garcia? (1998) [1]

In 1979 Lord Devlin published a series of essays on the role of the judge.  He stressed the dependence of judges on counsel for information about the law.  "In the English system judges feed off the Bar.  The Bar supplies the material which enables the judge to decide a question of law . . .  A specialist judge may read the more important [law reports] in his own line, but he would do it for his own interest and, if any case came before him in which new developments were relevant, he would expect counsel to present them to him.  There is no time in his schedule allotted to legal research and, if in connection with any case the judge had to do a lot of it, counsel would not have done his job properly." (Patrick Devlin, The Judge, Oxford University Press, 1979, pp 46-7) 

Lord Devlin also said that the case, in so far it involves the judge "begins and ends with the trial.  Before the judge goes into court he will have only the pleadings which contain a bare statement of the issues of the case.  He has them, I suppose, because they are the only documents which the parties have filed with the court.  If he is curious to know what the case is about he will look at them, but he is not expected to have studied them: indeed unless some question arises about whether or not a point is within the pleadings, they are not likely to be referred to.  The judge will obtain his first knowledge of the case from the opening statement of counsel for the plaintiff." (page 55)

From a judicial viewpoint, there is much that is attractive about that golden age, when there were fewer litigants in person, when the cost of litigation was not seen to be a problem and access to justice was not at the top of the agenda.  But are not all golden ages to some extent illusory?  Now, as in so many other areas of society, judges are expected to provide an improved service, but with fewer resources.  Ordinary people are far more aware of their rights but the cost of employing lawyers has driven many litigants to dispense with their services.  Professor John Baldwin has said that "large chunks of the business of the county courts are now being disposed of without the participation of lawyers" (Monitoring the Rise of the Small Claims Limit, LCD, December 1997, page 5).  In many district judges' lists, the litigant in person is the norm not the exception.  Professor Baldwin found that over two-thirds of litigants in cases referred to arbitration under CCR ord 19 r3 were unrepresented and that over one-third of litigants in open court trials with a value of less than £3,000 appeared without lawyers (page 77).  Litigants in person are also appearing in increasing numbers in the High Court.  Since the increase in the limit for automatic reference to arbitration, so called "small claims" where unrepresented companies are litigating moderately complex commercial disputes have become just as common as those where unrepresented consumers are suing over defective goods or services.  Not unreasonably, litigants in person expect judges to know the law in the areas which affect their cases.  

At the same time, listing managers work towards a more "productive use of judicial time".  The limits on the length of fast track trials may well prevent advocates from reading out long passages from law reports, but on the other hand cost capping may make it harder for them to prepare the skeleton arguments to which even judges in the county court are becoming accustomed.  How will the fast track time limits be observed in cases where the value of the claim does not warrant transfer to the multi-track, but where there are moderately complex legal issues requiring submissions on the law?  The increasingly interventionist role envisaged in Access to Justice is also likely to require, if not a greater knowledge of law on the part of judges, at least more speedy access to it.

At the same time the quantity and complexity of legislation and the number of reported cases seem to grow each year.  In 1996 Parliament passed 62 Public Acts comprising 2,752 sections and  235 schedules.  It approved 3,278 statutory instruments.  The Current Law Yearbook includes summaries of over 3,500 cases reported or noted in 1996.  The result is that it becomes increasingly difficult to have more than a general knowledge of the law in all but a few specific areas.   The response of many practitioners has been to specialise and to turn away work in areas in which they do not consider themselves experts.  That though is not something which, apart from the occasional well publicised exception, judges can do.

Housing law is just one example. The five volumes of The Encyclopedia of Housing Law (statutes, regulations and government circulars with annotations) take up twenty-two inches on the bookshelf and weigh almost thirty pounds.  The four volumes of Woodfall take up over eighteen inches.  The Housing Act 1996 which, in a piecemeal fashion, tinkered with most areas of housing law comprises 233 sections and nineteen schedules.  Most, but not all, have been brought into force by eleven separate commencement orders.  Since the Act received the Royal Assent, Parliament has approved at least thirty-five statutory instruments which have added to and, in theory, clarified its provisions.   The 1999 White Book will contain a housing law section with sixteen other major statutes which directly affect housing law, including the Rent Act 1977 (156 sections and 25 schedules), the Housing Act 1985 (625 sections and 24 schedules) and the Housing Act 1988 (141 sections and 18 schedules).

The number of reported cases is prodigious.  The table of cases in Andrew Arden and Caroline Hunter's excellent book Homelessness and Allocations (Legal Action Group) lists over 370 cases decided by the higher courts which are relevant to what are now the 59 sections of Parts VI and VII of the 1996 Act. The reporters have been just as prolific in other areas of housing law.  The case law is occasionally found in the mainstream law reports, but more frequently in specialist law reports such as the Estates Gazette, the Housing Law Reports, the Property and Compensation Reports and Knight's Local Government Reports.  Few county court libraries have more than one of these.

The complexity of housing law is reflected in the issues which  face county court judges every day - e.g. statutory appeals in homelessness cases (Housing Act 1996 s204) now heard in the county court rather than the Divisional Court.  Does the county court have power to grant interlocutory injunctions to compel local authorities to provide accommodation pending appeal?  The general view is "yes" although an appeal from Central London County Court is pending (Halonen v City of Westminster ).  If the county court does have jurisdiction, what is the test to be applied?  Compare R v Kensington and Chelsea RBC ex p Hammell [1989] QB 518, CA, R v Cardiff CC ex p Barry (1989) 22 HLR 261, R v Camden LBC ex p Mohammed (1997) Times June 20, QBD.  Can district judges exercise the interlocutory jurisdiction or the full appeal jurisdiction?    Probably in relation to the former (CCR Ord 21 r5(1)(a)), possibly in relation to the latter (Ord 21 r5(1)(b), but what is the value of such a claim? Would a statement on the originating application that the value of the claim is less than £5,000 automatically give the district judge jurisdiction?)  The common sense view however is that full appeals are clearly circuit judge work.

In possession proceedings, does mandatory Ground 8 in Housing Act 1988 Sched 2 apply where the arrears are solely due to housing benefit problems?  Yes, see Marath v MacGillivray (1996) 28 HLR 484, CA.  In such circumstances can the court adjourn for a short period so that those problems can be sorted out?  Probably, by analogy with Birmingham Citizen Permanent BS v Caunt  [1962] ChD; R v Circuit Judge ex p Wathen (1976) 33 P&CR 423, DC and the recent House of Lords decision in Bristol CC v Lovell [1998] 1 All ER 775, but see Housing Act 1988 s9(1).  If a local authority claims back housing benefit paid directly to a landlord, does the amount recouped count as arrears of rent for possession proceedings? Consider the Housing Benefit (General) Regulations 1987 SI No.1971 para 93 (as amended several times), R v Haringey LBC ex p Ayub (1992) 25 HLR 566, at p576, DC, Thamesmead Town v Mighty (1997) July 8, Woolwich County Court and Church Commissioners v Akindele (1998) January 8, Shoreditch County Court - both noted in March 1998 Legal Action.  Does a landlord's notice requiring possession from an assured shorthold tenant served pursuant to Housing Act 1988 s21 after the expiryof a fixed term have to expire "on the last day of a period of the tenancy"?  Almost certainly, yes - see s21(4), but cf Ujima HA v Richardson [1995] CLW 46/95, Shoreditch County Court.

The problem is not a shortage of answers.  It is rather that there are too many answers, too many learned articles, too many text books, too many reported cases, insufficient time to read them and, dare one admit it, too few brain cells to retain what has been read.  It is the equivalent of expecting a football commentator to be able to name and describe not just every footballer who has played for each club in the four main football divisions this season, but also in each of the seasons since the War.

Is there a solution?  The call for reform of housing law was made by Lord Woolf in Access to Justice where he said " . . . the main source of difficulty is the complexity of the substantive law itself. . . . The Department of the Environment should look at this as a matter of urgency.  The Law Commission should be invited to carry out a review of housing law with a view to consolidating the various statutory and other provisions in a clear and straightforward form." (Final Report, pages 198-9)

There is no doubt that a legal system is failing if it cannot provide definitive answers to simple questions and if routine cases require lengthy legal submissions.  Naively I dream of a future when all current housing statutes have been repealed and the common law rules of landlord and tenant have been swept away and replaced by a simple code setting out the law of renting of residential premises which will comprise just two types of occupation, one with and one without security of tenure, each with simple and straightforward rules governing possession proceedings.  The code would be drafted in simple, plain English and any landlord or tenant would be able to ascertain after a few minutes reading whether or not the occupant would be entitled to stay in the premises.  The savings in judicial time and legal costs would be colossal.  It is though probably just as unrealistic to look forward to future golden ages as it is illusory to hark back to former ones.

The JSB already plays a crucial role in the courses and materials which it provides for judges, but there is one relatively straight forward step which we as judges, through the JSB, could take to help alleviate the problem - for judges with specialised knowledge to make that knowledge available to other judges in an easily accessible form.  That is the thinking behind the Housing Law IT Pilot, provisionally called Amicus Curiae, which has been developed by a small group of judges and barristers under the auspices of the JSB.  The computing skills have been provided by barristers Roger Horne and Laurie West-Knights, District Judges Monty Trent and Bill Vincent and HHJ Sean Overend.  Help has also been provided by HHJ Paul Collins and Andrea Dowsett of the JSB and Don Raistrick of the Library Service.]  The pilot contains statutes, statutory instruments, JSB materials (such as Christopher Sumner's papers on housing law) and the text of the Green Book section on residential tenancies.  It also contains summaries of some 1,400 housing cases arranged alphabetically according to subject matter and the level of court in which they were decided.   These are all cross referenced by hyper-text links - the computing equivalent of doors which allow the reader to pass from one case summary into another, or from a case summary into a full law report, or from a case summary into a relevant statute.  The flexibility of electronic communication via modems and telephone lines means that it is possible for Amicus to be updated continually and, once all judges have been provided with computers as part of a judicial intranet (a private internet), to have immediate access, just by typing a few key strokes on their own computer in court, chambers or at home.

[Note: this project did not make its way beyond the initial pilot, but was a precursor to the many excellent ways in which the JSB now delivers distance learning for judges - see its website] 

Housing law is just an example.  Is there any reason why, in time, the JSB should not oversee similar projects in all major areas of law with specialist legal information being provided by judges for judges in an easily digestible form?  IT is not a panacea for all ills, but Information Technology is a tool which, if applied in the right way, with sufficient resources and training, could be used to make the lives of all judges easier and to improve the service which we provide to the public.

And who is Jesus Sanjuan Garcia?  A Spanish footballer who played a few matches while on loan to Wolverhampton Wanderers and scored on his debut in a Coca Cola Cup match at Craven Cottage one Tuesday night in September 1997.  No doubt the public would forgive a football commentator who could not answer such a question.  Probably the public would not criticise a judge who failed to identify a football player, provided that he was not too well known.  But would the public today respect a judge who did not have the Homelessness (Suitability of Accommodation Order 1996 or the decision of Henry J (as he then was) in R v Brent LBC ex p Omar (1991) 23 HLR 446 at his or her fingertips?

back to housing law    back to home

[1] Published in JSB Journal in 1998