Paul Batt, R (on the application of) v The County Court at Central London

Mr Justice MacDonald: INTRODUCTION

1. The Claimant, Mr Paul Batt, challenges the lawfulness of the decision of His Honour Judge Gerald (hereafter “the Circuit judge”), sitting at the County Court at Central London on 4 September 2024, to refuse permission to appeal in respect to four out of five of grounds of appeal against an order of District judge Brooks (hereafter “the District judge”) made on 9 July 2024. That order imposed mandatory injunctions on Mr Batt as tenant in proceedings brought by his then landlord, Roberta Freeman, requiring him to remove all his items from a loft and prohibiting him for the duration of the tenancy from storing any items in that loft.

2. Mr Batt relies on two grounds of challenge by way of judicial review with respect to the decision to refuse permission to appeal. Namely: i) In dealing with the case on the 4 September 2024, His Honour Judge Gerald acted in complete abrogation of the judicial requirements in considering whether or not to grant permission to appeal on the first four grounds raised. There was a failure to adjudicate on matters upon which the Court had a duty to address. ii) There was a denial of the Claimant’s right to a fair hearing.

3. Mr Batt is represented by Mr Edward J Fitzpatrick of counsel, as he was at the permission hearing before HHJ Gerald. The Defendant County Court acknowledged service of the claim on 5 December 2024. In its acknowledgement of service, the Defendant confirmed that it intends to remain neutral and not participate in proceedings unless otherwise directed by the Administrative Court. No such directions have been given. Mr Batt’s former landlord, Ms Freeman, has not participated in the judicial review. BACKGROUND

4. On 1 December 1984, Mr Batt was granted a tenancy of part of Flat D at 102 Breakspear’s Road, Brockley, SE4 1UD (hereafter “the property”). The property comprises a three-bedroom flat on the first floor of a large, double fronted, Victorian semi-detached house. Mr Batt was granted his tenancy by way of an oral agreement with the father of Ms Freeman, Pierfranco Nella. There was no written agreement and Mr Batt paid his rent in cash. The original tenancy was a protected tenancy under the Rent Act 1977 and is now a regulated tenancy. At the time the property was first let to Mr Batt, it consisted of a first floor bedroom with shared use of a kitchen and a bathroom with toilet.

5. Mr Batt is an artist who requires storage for his artists’ materials. Accordingly, Mr Batt asked Pierfranco Nella about the possibility of renting the loft area of the property. Pierfranco Nella agreed that Mr Batt could rent the loft, provided that Mr Batt cleared the loft and refurbished it. Pierfranco Nella passed away on 24 April 1985 and his brother, Giovanni Nella, took over as landlord and collected the rent, which continued to be paid in cash. Mr Batt cleared and refurbished the loft and began renting it on or about 6 June 1986. The original rent had been £75 per calendar month and this was increased to £80 per calendar month. Mr Batt has one receipt for the rent of £80, dated 6 June 1985.

6. Thereafter, Mr Batt stored his artists’ materials and equipment in the loft and had exclusive use of the loft. In or around 1992, the landlord’s interest was assigned to Ms Freeman. When the rent was registered on 22 November 2021, the property was described as including “1 Loft space”. The Rent Register indicates that an asterisk denotes shared facilities. There is no asterisk against the entry “1 Loft space” in the Rent Register of the property.

7. In 2022, Ms Freeman raised issues with Mr Batt concerning hoarding and fire safety, which Mr Batt disputed. On 5 December 2022, Ms Freeman applied under Part 8 of the CPR for a mandatory injunction. The Part 8 Claim Form placed reliance on the Rent Register dated 22 November 2021. The relief claimed by Ms Freeman was pleaded as follows: “4. The Claimant seeks a mandatory access injunction by virtue of s.11(6) of the Landlord and Tenant Act 1985 , where it is an implied term of the Tenancy that the Claimant may at reasonable times of the day and on giving 24 hours’ notice in writing to the Defendant, to enter the Property for the purposes of viewing its condition and state of repair.

5. The Claimant’s legal basis for applying to the Court for an injunction order is reliant on the provisions of the Rent Act 1977 in so far that every protected or statutory tenancy will be subject to an implied term that the tenant shall afford to the landlord access to the dwelling-house and all reasonable facilities, for executing therein any repairs which the landlord is entitled to execute in accordance with section 148 of protected tenancies.

6. By virtue of section 8 of the Landlord and Tenant Act 1985 , it is an implied term that the Property should be fit for human habitation during the tenancy. This statutory provision applies only in Wales.

7. The Claimant is legally obliged to ensure that her Property is safe and all necessary precautions are in place to protect from the risk of fire, and/or of fire spreading as set out in the Regulatory Reform (Fire Safety) Order 2005.”

8. On 23 December 2022, District judge considered the application and granted an interim order directing the appointment of a fire assessor and a chartered building surveyor and requiring Mr Batt to: “1. Permit the assessors / surveyors appointed by the parties to access the Flat D, 102 Breakspear’s Road, Brockley, SE4 1UD (“the Property”) and all communal areas (which for the avoidance of doubt includes the attic but without determining whether the attic falls within the Property or communal areas) to carry inspections of the Property upon being given 7 days notice.

2. Permit the Claimant and/or her agents and/or contractors access to the Property and all communal areas (which for the avoidance of doubt includes the attic but without determining whether the attic falls within the Property or communal areas) to carry out works identified by the surveyors as being required.”

9. Pursuant to the interim order dated 23 December 2022, Jamie Ballam of the Institute of Fire Safety Managers inspected the property and provided an assessment dated 15 February 2023. The plan of the property contained in the Fire Risk Assessment does not include the loft, although the communal parts of the building are described in the assessment as spanning “ground to first floor only”. As I have noted, the Rent Register indicates that an asterisk denotes shared facilities and there is no asterisk against the entry “1 Loft space” in the Rent Register. In the report of the chartered building surveyor dated 14 February 2023, the property was described as “a three bedroom flat arranged across the first floor or a large, double fronted, Victorian semi-detached townhouse...From the flat, there was access to the loft space via a hatch on the landing. At the time of inspection, the loft was being used as storage space by the tenants.”

10. Mr Ballam noted “a high fire loading without all occupied rooms in [the property] and the roof space”. Having identified that the loft space was not designed for storage of combustible materials, and that there was no fire detection within the loft space, the ‘Action Plan’ contained in the Fire Risk Assessment provided for these issues to be remedied. With respect to the materials in the loft, the ‘Action Plan’ stated inter alia : “The roof space is not designed for storage of combustible material as there is no partitioning to preserve the fire integrity of the means of escape on the floor below. The area must be kept clear of any storage at all times or partitioning and flooring installed to replicate the lines of fire compartmentalisation with the communal areas.”

11. A further hearing in respect of Ms Freeman’s Part 8 claim took place on 19 April 2023 before the District judge. On that date, an injunction was granted requiring Mr Batt to allow access to all communal areas for the purpose of inspecting the condition of the property and carrying out works identified by the fire assessor and the chartered building surveyor. With respect to the question of Mr Batt’s artists’ materials stored in the loft, the District judge directed as follows: “6. The matter is adjourned until the first open date after 4 weeks. Full directions attached, to be listed for 2 hours before District Judge Brooks. The issues to be considered at the next hearing are limited to the following: (a) Whether the Defendant should be required to remove his belongings from the attic / loft areas of the Property and whether the Defendant should be forbidden from storing his belongings in the attic / loft areas. (b) Costs”

12. The directions referred to in the order of 19 April 2023 as having been “attached” are either not available or were not drawn. The questions of whether the court had jurisdiction to require Mr Batt to remove his belongings from the attic / loft areas and whether the loft formed part of Mr Batt’s demise were not listed by the order of 19 April 2023 as issues to be determined at the next hearing listed on 19 July 2023. Within this context, it is apparent from the Skeleton Argument of counsel on behalf of Ms Freeman for the hearing on 19 July 2023 that the case for injunctive relief Mr Batt was required to answer at the hearing had changed since 19 April 2023. That Skeleton Argument was given to Mr Batt, acting in person assisted by his brother acting as a McKenzie Friend, on the morning of the hearing.

13. The Skeleton Argument of counsel on behalf of Ms Freeman given to Mr Batt contended that, irrespective of whether the loft space formed part of Mr Batt’s demise (which Ms Freeman contended it did not and Mr Batt contended it did), as a matter of law the court had power to grant relief in respect of belongings in the loft under the terms of s.9 A of the Landlord and Tenant Act 1985 as introduced by the Homes (Fitness for Human Habitation) Act 2018 (hereafter “ the 1985 Act ”) in light of the assessment that Mr Batt’s belongings constituted a fire hazard. There had been no reliance on s.9 A of the 1985 Act by Ms Freeman in the proceedings prior to this point.

14. With respect to the reliance on s.9 A of the 1985 Act as the proper platform for relief, no application had been made prior to the hearing on 19 July 2023 to amend the Part 8 Claim Form. However, it is apparent from the order made on 19 July 2023 that the District judge did accede at the hearing to an application to amend the Claim Form, the order of 19 July 2023 recording: “And Upon the Claimant making an application to amend the claim to rely on section 9 A of the Landlord and Tenant Act 1985 (“ the 1985 Act ”) in respect of the loft issue and section 11(6) of the 1985 Act in respect of the viewing issue.” And ordering: “9. The Claimant’s unopposed application for permission to amend the claim is granted. The requirement of re-service is dispensed with.”

15. This court has available to it, as did the Circuit judge when dealing with the application for permission to appeal, a transcript of the hearing before the District judge. At the outset of the hearing the District judge identified that the Part 8 Claim did not plead the revised case advanced on behalf of Ms Freeman that, as a matter of law, the court had power to grant relief in respect of belongings in the loft under the terms of s.9 A of the 1985 Act in light of the assessment that Mr Batt’s belongings constituted a fire hazard. In seeking to explain the consequences of this to Mr Batt as a litigant in person, the District judge stated as follows: “...if I deal with it in that way, then there is certainly an argument about whether 9A applies or not. I would hear from both of you and then make a decision on that, because [counsel for Ms Freeman] has set it out very carefully. He says, ‘This is how I get to the position. I get from here to here, and this is how I do it.’ 9A only goes through the other regulations, and says, ‘This is a hazard. It is an implied obligation on the landlord. Therefore, we need the stuff removed.’ That is what he says. But you are quite right, if it does not apply, then all of that disappears, and I do not know which, whether it applies at the moment.”

16. Having explained the position to Mr Batt, the District judge then indicated that he was going to give Ms Freeman permission to amend her claim. Thereafter, the District judge invited Mr Batt, with the assistance of his McKenzie Friend, to consider whether or not he wished to seek an adjournment in light of Ms Freeman having been given permission to amend her claim. Mr Batt having indicated that he wished to proceed notwithstanding the amendment, the District judge sought to articulate for Mr Batt the issue that would therefore be decided: “So I am deciding legally – and I am not deciding whether or not it is part of your tenancy. We are just putting that to one side. What we are saying is, based upon the evidence from the expert, whether you should remove your items from the loft because they are a fire hazard....But it is my decision. So your brother has raised quite an important point. I am not saying whether is his right, or he is wrong. If he is right, potentially, it means of [counsel for Ms Freeman’s] arguments get undermined.”

17. In the submissions thereafter made by counsel on behalf of Ms Freeman, counsel having contended in his Skeleton Argument that if the loft was not part of Mr Batt’s demise a remedy would lie for trespass, the case were the loft to form part of Mr Batt’s demise was put on the basis that Ms Freeman “has the right to enter the loft to remove the fire hazard in the performance of [her] covenant under s.9 A of the 1985 Act ” and that Mr Batt should first be given the opportunity to remove the items before Ms Freeman exercised her right of entry, counsel for Ms Freeman arguing that s.9 A of the 1985 Act “is directly enforceable between landlords and tenant”. These propositions were accepted by the District judge during argument.

18. Whilst it is clear from the transcript that Mr Batt and his McKenzie Friend struggled to understand the legal principles being considered by the court, having accepted the expert evidence demonstrated a fire risk Mr Batt’s essential submission was that s.9 A of the 1985 Act was of no application in this case and the court therefore had no jurisdiction to grant the relief being sought.

19. The reasons given by the District judge for the order he made are set out in a short ex tempore judgment, in respect of which this court has an approved transcript. The key conclusions of the District judge were as follows: “17...It is clear that section 9 A applies to this particular landlord. It is clear that she has an obligation to make sure the property is free from the risk of fire. It is clear that her submissions are supported by what the expert says, from the paragraph, which I have read out, from his report.” And: “19. In relation to that, my finding, or in my judgment, those items have to be removed. It is how we facilitate that. The Claimant has indicated it would like to give the chose firstly to the Defendant to remove these items, failing which she will take steps to have them removed, as set out in the Skeleton Argument.”

20. As I have set out, the relief sought by Ms Freeman with respect Mr Batt’s belongings was characterised during the course of submissions as enforcement of a right of entry in the performance of Ms Freeman’s implied covenant as landlord under s.9 A that the property is fit for human habitation and will remain so. It does not appear to have been argued before the District judge that s.9 A of the 1985 Act gave rise to a power to grant a mandatory injunction against Mr Batt as tenant. Notwithstanding this, and whilst in an exchange following the judgment the District judge told Mr Batt that he was being given “the choice to remove the items yourself” in line with the way the Judge expressed matters in the judgment, the orders made by the District judge on 19 July 2023 included injunctive orders in mandatory terms against Mr Batt as tenant that, for the duration of his tenancy, he must: “4. By 4.00pm on 9 August 2023, remove all of his items / belongings from the attic / loft areas. In default of the Defendant’s compliance with the paragraph, the Claimant may enter the attic / loft area and remove the Defendant’s items and belongings.” And that he be forbidden from: “6. Storing any of his items / belongings in the attic / loft areas after 4.00pm on 9 August 2023.”

21. The foregoing mandatory orders were made subject to a penal notice in the standard terms, warning Mr Batt that if he failed to comply with those orders he maybe held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law. The order of 19 July 2023 is expressed in the terms of a final injunctive order and no further directions were given and no further hearing was listed.

22. Having made an oral application for permission to appeal that the District judge refused, and acting as a litigant in person, on 8 August 2023 Mr Batt sought permission to appeal from the Circuit judge. Mr Batt relied on two grounds of appeal. Namely, (a) that there had been “unjust serious procedural irregularities in the proceedings” and (b) that there had been “unjust errors in interpreting and applying the law”. Mr Batt’s application for permission to appeal was refused on paper by HHJ Monty KC on 31 October 2023.

23. On 6 November 2023, Mr Batt requested an oral renewal hearing of his application for permission to appeal. He relied on amended grounds of appeal drafted by Mr Ftizpatrick. Those amended grounds were as follows: “In granting the injunction and the terms of the injunction the Learned Judge erred in law in: (1) Erred in considering as a matter of jurisdiction there was a lawful basis for granting an injunction in respect of a breach of s.9 A Landlord and Tenant Act 1985 as against the Appellant the tenant. (2) Erred in holding that it did not matter whether the loft was part of the Appellant’s Demise. There was a failure to recognise that the prohibition from using the loft if part of his demise amounts to a derogation from grant and is in breach of the covenant for quiet enjoyment that applies to the tenancy. (3) Erred in law in considering that in the circumstances of this case the Respondent had a choice as to how to address the breach of section 9 A: (i) by prohibiting the use of the loft by the Appellant (ii) carrying out the works recommended in the Report prepared by Mr Ballam to address the hazard to the loft, and was entitled to choose the cheaper of the options in accordance with the approach in Riverside Property Investments Ltd v Black Hawk Automotive [2004] EWHC 3052 (TCC) . (4) Erred in holding that the Respondent did not have to carry out the works to the loft as recommended by Mr Ballam; as they would constitute improvement works to the property. (5) Erred in holding that s.11(6) Landlord and Tenant Act 1985 covering viewings of the property for the purposes of sale.”

24. In his Skeleton Argument in support of the oral renewal of the application for permission to appeal, Mr Fitzpatrick submitted that Ground 1 involved a clear issue of jurisdiction in circumstances where the mandatory orders made by the District judge against Mr Batt as tenant were explicitly founded on s.9 A of the 1985 Act but, it was submitted, s.9 A did not provide the power to grant mandatory injunctions against a tenant. The central submissions on behalf of Mr Batt on Ground 1 were articulated in Mr Fitzpatrick’s Skeleton Argument in support of permission to appeal as follows: “31. In relation to any application for an injunction the preliminary question is where the power to grant the injunction is derived. For an injunction to be given, the party must establish a legal or equitable right, which requires the need to identify the interest that merits protection and the legal or equitable principle that justifies exercising the power to grant an injunction to protect that interest ( Broad Idea International Ltd v Conway Collateral Ltd [2021] UKPC 24 §52). Generally an injunction is supported by a claim made by way of Particulars of Claim.

32. Normally, the applicant relies on express terms of a tenancy or implied terms that are identified before the court.

33. In this case the platform is s.9 A, however this implies a covenant for which the lessor not the lessee is liable. It is correct that s.9 A(2)(a) & 3(a) provide that the implied covenant will not bite if the need to carry out works or repairs is by virtue of a failure on the part of the lessee. These subsections nullify the requirements of section 9 A. They do not impose positive obligations on the lessee that can be enforced by injunctive relief.

34. There is no platform for the making of an injunction against the lessee under section 9 A. There is of course under section 9 A(7) an obligation on the part of the lessee to allow viewings of the condition and state of repair of the premises as there is under section 11(6) .”

25. Within this context, Mr Fitzpatrick submitted that Ground 1 of the appeal had a real prospect of success as there was no jurisdiction under section 9 A of the 1985 Act to grant the mandatory injunctive orders requiring Mr Batt as tenant to remove items from the loft and prohibiting him from use of the loft for the duration of his tenancy.

26. With respect to Ground 2 of the grounds of appeal, on behalf of Mr Batt it was contended that the District judge should have dealt with the question of whether the loft was included in Mr Batt’s demise in circumstances where, if it was, preventing him from storing his materials in the loft would have amounted to a derogation of grant (in accordance with the principle in Lyttelon Times Co Ltd v Warners Ltd [1907] AC 476 at 481 per Lord Loreburn LC) and a breach of the covenant of quiet enjoyment. Within this context, Mr Fitzpatrick submitted that Ground 2 had a real prospect of success where there is nothing in s.9 A that permits the lessor to curtail a lessee’s demise when honouring the implied covenant of fitness for human habitation and where the expert fire assessor had specifically endorsed a course of remediation that would avoid such derogation and breach of covenant.

27. By Grounds 3 and 4, Mr Fitzpatrick submitted that Riverside Property Investments Limited v Black Hawk Automotive [2004] EWHC 3052 (TCC) did not provide a proper basis for excluding Mr Batt from storing his artists’ materials in the loft rather than a course of remediation that would avoid such derogation and breach of covenant.

28. The Circuit judge gave permission to appeal in respect of Ground 5, which I do not therefore need to address in terms of the submissions advanced at the oral permission hearing.

29. The oral permission hearing took place before the Circuit judge on 4 September 2024. This court has the benefit of a transcript of the permission hearing and a transcript of the short ex tempore judgment refusing permission to appeal on all but Ground 5, as approved by the Circuit judge. At the outset of the hearing, the Circuit judge dealt with the question of the amended grounds of appeal. Whilst in his judgment he described the grounds of appeal as being “ de bene esse ”, it is clear from the order made by the Circuit judge on 4 September 2025 that he granted permission to amend the grounds of appeal in the terms I have set out above.

30. During the course of submissions, the Circuit judge pressed Mr Fitzpatrick to consider whether, if the mandatory orders made by the District judge had referred to “ hazardous items / belongings” rather than simply “items / belongings” any criticism could be levelled at the mandatory injunctive orders made. Having done so, the Circuit judge articulated his understanding of Ground 1 as pleaded, but pressed Mr Fitzpatrick on his own scenario as follows: “JUDGE GERALD: Your ground one then is that – whilst the tenant could not be ordered to remove hazardous materials from the loft, it was not on the basis of section 9 A. And it was not section 9 A, it must be under the basis of the tenant being under a breach? MR FITZPATRICK: Yes, but I am not conceding that the judge ought to have made an order on the basis of un-tenant like behaviour. I have referred to that in paragraph 36 and 37. And obviously there would have to be findings as to whether this was un-tenant like behaviour in all the circumstances. JUDGE GERALD: Well, there would have to be a pleading that it was a breach of the tenant’s obligations, which it was not pleaded. MR FITZPATRICK: No, it was not pleaded. Your Honour, ground two is a short ground, it relates to the way we say they erred in holding up the loft. It did not matter that the loft was part of the appellant’s demise. That really follows on from the view taken at section 9 A of the application. And I have dealt with that. JUDGE GERALD: Can we just look at the decision. MR FITZPATRICK: The judgment is at page 81. Then there is a very long transcript from page 86. JUDGE GERALD: But it is just the judgment we need to look at, is it not? MR FITZPATRICK: Well, it is the judgment, but it seems slightly incomplete to me. JUDGE GERALD: ( Inaudible ). ( After a short pause ) JUDGE GERALD: Just going back to section 9 A, if the landlord had put the hazardous material in there, that would be in breach of the landlord’s --? MR FITZPATRICK: Well, yes. If the fire authority finds there is a hazard because of combustible materials put by the landlord, very often now you get a storage cupboard in communal areas with sleeping bags and the like, and the fire authority will say, “Well, that is a hazard”. And effectively, if that creates a situation where it is not fit for human habitation, the landlord would be required to remove it, yes. JUDGE GERALD: To be honest, I am just struggling why … a landlord and tenant – okay, I see. It is a very narrow ground for an appeal. Are you saying – this is why I was asking about paragraph 4 of the order. If the tenant had hazardous materials there, it would be very surprising if – MR FITZPATRICK: Oh – JUDGE GERALD: Can I finish? It would be very surprising if there was not some sort of jurisdiction for the court to order that the hazardous material be removed, and I would find quite a lot of persuading to say well, there is nothing the landlord could do. MR FITZPATRICK: That is not our argument. JUDGE GERALD: Right. When it comes to paragraph 4, when we started off, we said if you put in the word “hazardous” there, is there anything wrong with that? I am not talking about your objection to it from a practical point of view because you are taking a very technical point of view. I think your answer to that was – or how I understood your answer was that -- well the court could make such an order for a tenant to remove hazardous material, but that would be based on a breach of the tenant’s implied obligation, not the landlords? Right? MR FITZPATRICK: Yes. I entirely agree if you kept hazardous material, then that could amount to un-tenant-like behaviour, because a tenant should not keep – JUDGE GERALD: So had the landlord applied for an injunction on the basis of the tenant’s obligation and the order been confined to hazardous materials, then there would be no objection to that which has been ordered? MR FITZPATRICK: No, had it been done by consent, I agree – JUDGE GERALD: I am not talking about consent. You are taking a technical point of view, so there is no point in saying, well, we agree to do all of that, but we still don’t want the order to be made, because it does not help me at all. Because you are trying to get permission to appeal, and therefore it has to be on a legal basis, as opposed to just, “Oh, well, we would have done what you wanted.” Or, “We’ve done everything you wanted.” Because you are taking the technical approach. So is then the objection, the real objection to paragraph, it is not so much jurisdiction, whether or not the right covenant was used, but more that it is all of his items and belongings, because it can only be the hazardous ones which should be removed? It should not be all of his belongings, because he has been granted a tenancy of the room.? So in other words, the injunction goes too far? MR FITZPATRICK: Yes, certainly, yes, it would have been conceded that hazardous material should not be stored I the loft. I suppose the difficulty is that the fire report refers to combustible material, so any material, pretty much household items, are likely to be combustible. And the main objection is not being able to store any items or belongings in the attic under 6. JUDGE GERALD: Okay.”

31. In giving judgment refusing permission to appeal on all grounds save for Ground 5, the Circuit judge held as follows with respect to Ground 1 of the grounds of appeal: “5. But de bene esse , five grounds of appeal are now sought to be relied upon. The first is that the learned district judge erred in ordering the defendant to remove his belongings from the attic area by reason of reliance under section 9 A of the Landlord and Tenant Act 1985 . It would appear that the argument here is that if the order is read to the effect that the order was being confined to combustible or dangerous items, there would be no problem in the district judge having made the order he did because, apart from a statement of the obvious that nobody should be keeping such dangerous materials in a roof or other space within demised premises, that would be in breach of a tenant’s obligations to use the premises in a tenant-like manner.

6. By using section 9 A, it is said that the order itself is undermined because the wrong legal basis was used for achieving “the right order”. It seems to me that this is a somewhat artificial argument because, in the circumstances of this case, there was no reason why the actual order which was made should not have been made. The intention was for combustible or dangerous items to be removed from the loft space, which has occurred, and there is no dispute as far as I can see, or no doubt that the court had jurisdiction to make such an order under the tenant’s implied obligation, and the fact that the wrong legal basis appears to have been used seems to me to be of no materiality, because ultimately what is being appealed is the order, not the reasons for it. Therefore, if I were prepared to allow the amended grounds for appeal to be relied upon, I would refuse permission to appeal with ground one.”

32. The Circuit judge refused permission with respect to Ground 2 on the basis that the District judge had made no reference in his judgment “to a distinction between the various parts of the demise” and that there was no ground of appeal stating that made an incorrect finding of fact in the absence of any evidence before the District judge as to the nature and extent of Mr Batt’s demise. The Circuit judge likewise refused permission in respect of Grounds 3 and 4, holding that those grounds were “based on the assumption that the loft was comprised within the demise” but their being no finding to that effect.

33. Permission to apply for judicial review was refused on the papers by Mr David Pittaway KC sitting as a Deputy High Court judge on 3 March 2025. Permission was granted at an oral renewal hearing before Mr Richard Kimble KC sitting as a Deputy High Court judge on 8 May 2025. The Deputy High Court judge was satisfied that, in circumstances where Mr Batt’s case raised both a jurisdictional issue and an important fairness question that merited full consideration, it was arguable with a realistic prospect of success that s.9 A of the 1985 Act did not provide the authority that the District judge believed it did, that in consequence a true jurisdictional point arose on appeal and that the jurisdictional point had not been engaged with by the Circuit judge such that the case came within the narrow scope for judicial review. In the circumstances, and as noted, the Deputy High Court judge gave permission on the following grounds of judicial review: i) In dealing with the case on the 4 September 2024 His Honour Judge Gerald acted in complete abrogation of the judicial requirements in considering whether or not to grant permission to appeal on the first four grounds raised. There was a failure to adjudicate on matters upon which the Court had a duty to address. ii) There was a denial of the Claimant’s right to a fair hearing. RELEVANT LAW

34. Dealing first with the legal framework within which the District judge was invited to make the injunctive orders he did on 19 July 2023. The amendments to the 1985 Act comprising ss. 9 A, 9B and 9C, and s.10 in respect of England, introduce obligations on the landlord to ensure that the property is fit for human habitation at the time the lease is granted and will remain fit for human habitation for the duration of the lease. Section 9 A of the 1985 Act provides as follows: “ 9A Fitness for human habitation of dwellings in England (1) In a lease to which this section applies of a dwelling in England (see section 9 B), there is implied a covenant by the lessor that the dwelling— (a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and (b) will remain fit for human habitation during the term of the lease. (2) The implied covenant is not to be taken as requiring the lessor— (a) to carry out works or repairs for which the lessee is liable by virtue of— (i) the duty of the lessee to use the premises in a tenant-like manner, or (ii) an express covenant of the lessee of substantially the same effect as that duty; (b) to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident; (c) to keep in repair or maintain anything which the lessee is entitled to remove from the dwelling; (d) to carry out works or repairs which, if carried out, would put the lessor in breach of any obligation imposed by any enactment (whenever passed or made); (e) to carry out works or repairs requiring the consent of a superior landlord or other third party in circumstances where consent has not been obtained following reasonable endeavours to obtain it. (3) The implied covenant is also not to be taken as imposing on the lessor any liability in respect of the dwelling being unfit for human habitation if the unfitness is wholly or mainly attributable to— (a) the lessee’s own breach of covenant, or (b) disrepair which the lessor is not obliged to make good because of an exclusion or modification under section 12 (power of county court to authorise exclusions or modifications in leases in respect of repairing obligations under section 11 ). (4) Any provision of a lease or of any agreement relating to a lease (whether made before or after the grant or creation of the lease) is void to the extent that it purports— (a) to exclude or limit the obligations of the lessor under the implied covenant, or (b) to authorise any forfeiture or impose on the lessee any penalty, disability or obligation in the event of the lessee enforcing or relying upon those obligations. (5) Where in any proceedings before a court it is alleged that a lessor is in breach of an obligation under the implied covenant, the court may order specific performance of the obligation (regardless of any equitable rule restricting the scope of that remedy). (6) Where a lease to which this section applies of a dwelling in England forms part only of a building, the implied covenant has effect as if the reference to the dwelling in subsection (1) included a reference to any common parts of the building in which the lessor has an estate or interest. (7) In a lease to which this section applies of a dwelling in England, there is also implied a covenant by the lessee that the lessor, or a person authorised in writing by the lessor, may enter the dwelling for the purpose of viewing its condition and state of repair. (8) The covenant implied by subsection (7) requires entry to the dwelling to be permitted— (a) only at reasonable times of the day, and (b) only if at least 24 hours’ notice in writing has been given to the occupier of the dwelling. (9) In this section— “common parts” has the meaning given by section 60(1) of the Landlord and Tenant Act 1987 ; “lease” does not include a mortgage term; “lessee” means the person for the time being entitled to the term of a lease; “lessor” means the person for the time being entitled to the reversion expectant on a lease.”

35. The leases to which s.9 A of the 1985 Act applies are specified in s.9 B of the 1985 Act , which provides as follows: “ 9B Leases to which section 9 A applies (1) Section 9 A applies to a lease under which a dwelling is let wholly or mainly for human habitation if either of the following applies— (a) the lease is for a term of less than 7 years, or (b) the lease is of a kind mentioned in subsection (1A) or (1AB) of section 13 (leases to which section 11 applies: secure, assured or introductory tenancies for fixed term of 7 years or more). This is subject as follows. (2) Section 9 A does not apply to any lease of a kind mentioned in section 14 (exceptions for leases to which section 11 applies). (3) Except as mentioned in subsections (4), (5) and (6), section 9 A does not apply to a lease granted— (a) before the commencement date, or (b) on or after that date in pursuance of an agreement entered into, or an order of a court made, before the commencement date. (4) Section 9 A applies to a periodic or secure tenancy that is in existence on the commencement date, but in the case of any such tenancy the covenant implied by that section has effect in the following way— (a) subsection (1)(a) of that section has effect as if the reference to the later of the times there mentioned were a reference to the time that begins at the end of the period of 12 months beginning with the commencement date, and (b) subsection (1)(b) of that section has effect only in respect of times falling after the end of that 12 month period. (5) Section 9 A applies to a periodic or secure tenancy that comes into existence after the commencement date on expiry of a term of a lease granted before that date. (6) Section 9 A applies to a lease for a fixed term which— (a) is granted or renewed before the commencement date, and (b) is renewed for a further fixed term on or after that date, and for this purpose the renewal on or after the commencement date is to be treated as a grant of the lease on or after that date. (7) For the purposes of subsection (1) it is immaterial— (a) whether the dwelling is to be occupied under the lease or under an inferior lease derived out of it, or (b) that the lease also demises other property (which may consist of or include one or more other dwellings). (8) In determining for the purposes of subsection (1)(a) whether a lease is for a term of less than 7 years— (a) any part of the term falling before the grant or creation is to be ignored and the lease is to be treated as a lease for a term commencing with the grant or creation; (b) a lease which is determinable at the option of the lessor before the expiry of 7 years from the commencement of the term is to be treated as a lease for a term of less than 7 years; (c) a lease (other than one to which paragraph (b) applies) is not to be treated as a lease for a term of less than 7 years if it confers on the lessee an option for renewal for a term which, together with the original term, amounts to 7 years or more. (9) In this section— “the commencement date” means the date on which the Homes (Fitness for Human Habitation) Act 2018 comes into force; “lease”, “lessee” and “lessor” have the same meanings as in section 9 A; “secure tenancy” has the meaning given by section 79 of the Housing Act 1985 .”

36. The criteria against which fitness for human habituation is measured are set out in s.10 of the 1985 Act , which allows the court to consider whether, as a result of the condition of the house or dwelling, including the prescribed hazards introduced under section 2 of the Housing Act 2004 . Section 10 of the 1985 Act provides as follows: “ 10 Fitness for human habitation. (1) In determining for the purposes of this Act whether a house or dwelling]is unfit for human habitation, regard shall be had to its condition in respect of the following matters— repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water; in relation to a dwelling in England, any prescribed hazard; and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition. (2) In subsection (1) “prescribed hazard” means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004 . (3) The definition of “hazard” in section 2(1) of the Housing Act 2004 applies for the purposes of sub section (2 ) as though the reference to a potential occupier were omitted.”

37. In this case, Mr Batt sought to demonstrate by way of his first ground of appeal that he had a real prospect of successfully establishing that the District Judge had no jurisdiction to grant the mandatory injunctive orders against Mr Batt as tenant. For an injunction to be granted on the basis that it is just and convenient to do so, the party seeking relief must establish a legal or equitable right (whether identified independently of the reasons that justify the grant of the injunction or not) which merits protection and a legal or equitable principle which justifies exercising the power to grant an order requiring the defendant to do or refrain from doing some act (see Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24 , [2023] AC 389 at [52] and In Re G [2023] EWCA Civ 1312 , Fam 107 at [61]).

38. Finally, with respect to the merits of the claim for judicial review under consideration by this court, under the Access to Justice Act 1999 s.54(4) (hereafter “ the 1999 Act ”) there is no further right of appeal from the decision to refuse permission to appeal. In the circumstances, the only possible challenge is by way of judicial review. The basis of such a challenge was described in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 , [2004] 1 WLR 475 by the Court of Appeal as follows: “[56] The possibility remains that there may be very rare cases where litigants challenge the jurisdiction of a Circuit Judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing. If such grounds were made out we consider that a proper case for judicial review will have been established.”

39. Mr Batt accepts, through Mr Fitzpatrick, that the jurisdiction to judicially review a refusal of permission to appeal is a very narrow one. With respect to the possible bases for review, namely of jurisdictional error in the narrow, pre- Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing, in Gregory v Turner [2003] EWCA Civ 183 , [2003] 1 WLR 1149 at [39]-[41] the Court of Appeal examined the ambit of pre- Anisminic jurisdictional error: “39. In Sivasubramaniam's case, this court was at pains to emphasise the narrowness of the gap left open by its decision. A mere error of law by the circuit judge in the county court would not be sufficient. The possibility was confined to “very rare cases”, on the ground of an excess of jurisdiction in “the narrow, pre- Anisminic sense”, or the denial of the right to a fair hearing: see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 .

40. Unfortunately, as the court recognised, the cases before Anisminic do not provide clear guidance. A useful summary of the classes of jurisdictional error, recognised by public law before the Anisminic case was decided, is included in the argument of Sydney Templeman QC and Mr Gordon Slynn for the Foreign Compensation Commission: [1969] 2 AC 147 , 161. Their fourth category is a heterogeneous group of cases which counsel characterised in this way: “These are difficult cases in that it is sometimes hard to see what the precise point was but it may be possible to build up from them a proposition of general validity that a tribunal has no jurisdiction to make a determination if it has acted in complete disregard of its duties.” Given that Ridge v Baldwin [1964] AC 40 was among the cases in this group, one sees why this court in Sivasubramaniam's case specifically added the denial of a fair hearing as a class of jurisdictional error; but Mr Templeman's characterisation of the group of pre- Anisminic decisions to which Ridge v Baldwin was assigned goes somewhat wider than the failure to hear which was the vice in that particular case.

41. We agree, in any event, with the emphasis implied by the words “complete disregard of its duties”. What is required, at least, is some fundamental departure from the correct procedures. A useful—more modern—analogy may be found in the decision of the House of Lords in In re McC (A Minor) [1985] AC 528 , discussing the circumstances in which an action for false imprisonment may lie against justices, as having acted “without jurisdiction or in excess of jurisdiction” (within section 15 of the Magistrates' Courts (Northern Ireland) Act 1964) . In that context, as in this, it was made clear that the “novel test of excess of jurisdiction” derived from the Anisminic case was of no relevance: p 546 g , per Lord Bridge of Harwich. The approach in that case has also been endorsed by the European Court of Human Rights, in the application of article 5(5) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to compensation for unlawful arrest or detention). A detailed analysis of the cases, both here and in Strasbourg, can be found in appendix A to the Law Commission's Report, Damages under the Human Rights Act 1998 (2000) (Law Com No 266).”

40. The decisions in Gregory v Turner demonstrates that there is plainly a firm link between jurisdictional error in “the narrow, pre- Anisminic sense” and the denial of the right to a fair hearing. In Gregory v Turner the court considered that the denial of a fair hearing is a class of jurisdictional error.

41. Further light was shone on the scope of the jurisdictional error that would ground a challenge by way of judicial review to the decision of a Circuit judge refusing permission to appeal in R (on the application of Strickson) v Preston County Cour t [2007] EWCA Civ 1132 , [2007] 10 WLUK 169. In that case, the Court of Appeal observed as follows by reference to the extract from Gregory v Turner set out above: “[32] How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre- Anisminic jurisdictional error, where the court embarks upon an enquiry which it lacks all power to deal with, or fails altogether to enquire or adjudicate upon a matter which it was its unequivocal duty to address. It would include substantial denial of the right to a fair hearing, and it may include cases where the lower court has indeed acted “in complete disregard of its duties” ( Gregory ), and cases where the court has declined to go into a point of law in a particular area which, against a background of conflicting decisions of a lower tribunal, the public interest obviously requires to be decided ( Sinclair ). The Sinclair type of case is perhaps a sub-class of the Gregory case. Both, in any event, may be less hard-edged than the pure pre- Anisminic jurisdictional error case. The courts will have to be vigilant to see that only truly exceptional cases — where there has indeed, as I have put it, been a frustration or corruption of the very judicial process — are allowed to proceed to judicial review in cases where further appeal rights are barred by section 54(4) .”

42. In the foregoing circumstances, and as articulated by Jay J in R (Ogunbiyi) v Southend County Court [2015] EWHC 111 (Admin) , [2015] ACD 83 , the court is not here exercising an appellate jurisdiction but rather a highly attenuated review jurisdiction within the heavily circumscribed parameters set out in the authorities dealt with above. DISCUSSION

43. Having considered carefully the submissions on behalf of Mr Batt, I am on balance satisfied that this is one of those very rare cases in which a claim for judicial review must succeed. My reasons for so deciding are as follows. Ground 1

44. By Ground 1 of his Statement of Facts and Grounds, Mr Batt asserts that in dealing with the case on the 4 September 2024, the Circuit judge acted in abrogation of the judicial requirements in considering whether or not to grant permission to appeal on the first four grounds raised and failed to adjudicate on matters upon which the court had a duty to address.

45. With respect to Ground 1 of the claim for judicial review, Mr Fitzpatrick submits that the position goes beyond the Circuit judge’s decision to refuse permission on Ground 1 of the grounds of appeal being wrong, or even extremely wrong. Rather, he submits that the judge simply refused to engage with Ground 1 at all, in a fundamental departure from the correct procedure and in frustration of the judicial process of deciding an application for permission to appeal.

46. Mr Fitzpatrick contends that, in essence, rather than addressing whether Mr Batt had a real prospect of successfully demonstrating that s.9 A of the 1985 Act did not provide jurisdiction for the mandatory injunctive orders made by District Judge against Mr Batt as tenant, the Circuit judge disregarded that ground entirely and erected his own ground (that the ambit of the orders made was too wide), demolished that ‘straw man’ ground by hypothesising the availability narrower orders with an alternative justification (based on a conjectured application for an order confined to hazardous materials under a jurisdiction grounded on the tenant’s obligations) and used this reasoning unrelated to Ground 1 of the grounds of appeal to justify refusal of permission.

47. CPR PD 52C provides at paragraph 5(1) that the grounds of appeal must identify as concisely as possible the respects in which the judgment of the court below is either wrong or unjust because of serious procedural or other irregularity. In this case, Ground 1 of Mr Batt’s grounds of appeal asserted that: “In granting the injunction and the terms of the injunction the Learned Judge erred in law in: (1) Erred in considering as a matter of jurisdiction there was a lawful basis for granting an injunction in respect of a breach of s.9 A Landlord and Tenant Act 1985 as against the Appellant the tenant.”

48. As I have noted, the order made on 19 July 2023 by the District judge included injunctive orders in mandatory terms that, for the duration of his tenancy, Mr Batt must remove all of his belongings from the loft and, in default of thereof, Ms Freeman may enter the loft and remove Mr Batt’s items and belongings, and that Mr Batt was forbidden from storing any of his belongings in the loft after 4.00pm on 9 August 2023.

49. Whilst there had been no reliance prior to the hearing on 19 July 2023 on s.9 A of the 1985 Act , the District judge permitted Ms Freeman to amend her Claim Form to rely on section 9 A of the 1985 Act in respect of the loft issue. In seeking to explain the resulting position to Mr Batt as a litigant in person, the District Judge articulated the question as being one of whether s.9 A of the 1985 Act “applies or not”. Following the amendment of the Claim Form, counsel for Ms Freeman submitted that she had the right to enter the loft to remove the fire hazard in the performance of her covenant under s.9 A of the 1985 Act and that Mr Batt should first be given the opportunity to remove the items before Ms Freeman exercised her right of entry, counsel for Ms Freeman arguing that s.9 A of the 1985 “is directly enforceable between landlords and tenant”.

50. In the circumstances, and as I have noted, it does not appear to have been expressly argued before the District judge on behalf of the landlord that s.9 A of the 1985 Act gave rise to a power to grant a mandatory injunction against Mr Batt as tenant. Rather, the relief sought by Ms Freeman with respect Mr Batt’s belongings pursuant to s.9 A of the 1985 Act was characterised during the course of submissions as enforcement of her right of entry in the performance of her implied covenant under s.9 A that the property was fit for human habitation and would remain so for the duration of the tenancy.

51. It was in this context that, whilst in an exchange following the judgment the District Judge told Mr Batt that he was being given “the choice to remove the items yourself”, injunctive orders in mandatory terms with a penal notice attached were made against Mr Batt as tenant as a means of facilitating the performance by Ms Freeman of her obligations under the implied covenant under s.9 A. The District Judge thereby appears to have accepted that s.9 A of the 1985 Act provides jurisdiction to make mandatory injunctive orders against a tenant as a means of facilitating the performance by the landlord of an implied covenant.

52. Within this context, I am satisfied that ground 1 of Mr Batt’s grounds of appeal raised a true jurisdictional point on appeal. Namely, whether s.9 A of the 1985 Act provided the jurisdiction that the District judge believed it did (jurisdiction to make mandatory injunctive orders against a tenant as a means of facilitating the performance by the landlord of an implied covenant) and whether, therefore, the mandatory injunctive orders in the terms approved by the District judge against Mr Batt as tenant were wrong for want of jurisdiction.

53. An appellate judge entertaining an appeal is ordinarily required to address the grounds of appeal taken by the appellant. This does not mean the appellate judge must remain slavishly within the tramlines of the arguments advanced in respect of the grounds of appeal, or to determine every argument advanced on appeal or, even, to determine every ground of appeal advanced where the determination of one or more grounds is sufficient to deal with the whole. But it should be self-evident that, with respect to the grounds of appeal that it does find it necessary to address, the appellate court has to engage with the substance of those grounds in order to decide that those grounds have or lack merit. That will necessarily involve engaging with the basis on which the appellant contends the judge went wrong. In this context, there is a difference between deciding that a ground of appeal lacks merit and failing to decide the merits of a ground of appeal. An appellant has a right to have their pleaded grounds of appeal heard and determined by way of an effective decision.

54. If authority is needed for the foregoing proposition, in R (Nunn) v First Secretary of State and others [2005] EWCA] Civ 101, [2005] 2 All ER 987 at [22] the Court of Appeal held, in the context of a failure to make an effective determination of representations made to a local planning authority regarding the erection of a mobile telephone mast, that under Art 6(1) of the ECHR parties have the right to expect that their representations will be the subject of an effective determination and that where a party’s representations are not determined by an effective decision that party is deprived of their Art 6 right to a fair trial.

55. The European jurisprudence likewise demonstrates, in the wider context of the duty under Art 6(1) to give a reasoned decision, that the failure by a court that has jurisdiction to make a decision on the point in issue may amount to a violation of Art 6(1) in circumstances where the effect of Article 6(1) is, inter alia , to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence, without prejudice to its assessment or to whether they are relevant for its decision (see Application 61302/00 Buzescu v Romania , Judgment of 24 May 2005, ECtHR at [63], in which the Court of Appeal and Supreme Court in Romania had addressed a part of the applicant’s argument, but not his main argument). Art 6(1) requires the court to address the essential issues which are submitted to its jurisdiction ( Helle v Finland (1997) 26 EHRR 159 , cited with approval by the Privy Council in Stefan v GMC [1999] 1 WLR 1293 ). An issue will fall to be addressed and determined under this principle where it is decisive in the context of the application ( Ruiz Torija v Spain (1994) 19 EHRR 553 at [30]).

56. Within the foregoing context, I am satisfied that there can be said to have been a fundamental departure from the correct procedure and a frustration of the judicial process of determining an application for permission to appeal where an appellate court fails to conduct a proper examination of, and to make an effective determination of, those grounds of appeal pleaded by the appellant that the appellate court finds it necessary to address. I.e., where the appellate court fails altogether to enquire or adjudicate upon a ground of appeal which it was its unequivocal duty to address ( R (on the application of Strickson) v Preston County Cour t). A failure to conduct a proper examination of, and to make an effective determination of, the grounds of appeal falling within the jurisdiction of the court renders ineffective a litigant’s right of appeal and amounts to a substantial denial of the appellant’s right to a fair hearing. Such an approach may well be fatal to the validity of the court’s decision in circumstances where the court has failed to exercise the jurisdiction accorded to it.

57. The question remains as to whether the approach taken by the Circuit judge to Ground 1 of Mr Batt’s application for permission to appeal fell within these very narrow categories of jurisdictional error. I am satisfied, on balance, that it did.

58. The District judge made injunctive orders against Mr Batt as tenant, in mandatory terms with a penal notice attached for the duration of his tenancy, as a means of facilitating the performance by Ms Freeman of her obligations under the implied covenant pursuant to s.9 A of the 1985 Act . Mr Batt’s pleaded ground of appeal under Ground 1 was that the District judge erred in concluding that, as a matter of jurisdiction, there was a lawful basis for granting an injunction in respect of a breach of s.9 A Landlord and Tenant Act 1985 against the tenant. Mr Fitzpatrick’s submission to the Circuit judge was that that Ground 1 of the appeal had a real prospect of success as there was no jurisdiction under section 9 A of the 1985 Act to grant the mandatory orders made by the court against Mr Batt as tenant. The Circuit judge did not however, in my judgement, conduct a proper examination of, and to make an effective determination of, Ground 1 of the appeal pleaded by Mr Batt, which the Circuit judge found it necessary to address.

59. The evaluation of the Circuit judge’s approach is somewhat complicated by the manner in which the Circuit judge dealt with the amended Grounds of Appeal. As I have noted, and appreciating as I do that the Circuit judge was giving an ex tempore judgment in a no doubt busy list, in his judgment he described the grounds of appeal as being “ de bene esse ”. Later in his judgment the Circuit judge appeared to suggest that he had not formally permitted any amendment, stating “if I were prepared to allow the amended grounds for appeal to be relied upon”. However, as I have also noted, in the order that the Circuit judge made, he granted permission to amend the grounds of appeal in the terms pleaded on behalf of Mr Batt.

60. A further pleading issue also complicates matters. Standing back to consider the Circuit judge’s decision as a whole, the ultimate basis for refusing permission on Ground 1 appears to be that there was no reason not to grant mandatory injunctions based on a breach of a tenant’s obligations to use the premises in a tenant-like manner. However, as the Circuit judge himself acknowledged towards the beginning of his exchange with Mr Fitzpatrick, that had not been pleaded in the Claim Form, whether originally or as amended, as the basis for injunctive orders against Mr Batt as tenant.

61. More fundamentally, in addition to refusing Ground 1 on a basis that had not been pleaded in the Claim Form, in my judgement the Circuit judge failed to conduct a proper examination of, and to make an effective determination of, Ground 1 as pleaded. Namely, whether s.9 A of the 1985 Act provided the jurisdiction to make mandatory injunctive orders against a tenant as a means of facilitating the performance by the landlord of an implied covenant and whether, therefore, the mandatory injunctive orders in the terms approved by the District judge against Mr Batt as tenant were wrong for want of jurisdiction.

62. I accept Mr Fitzpatrick’s submission that the Circuit judge, instead of conducting a proper examination and effective determination of Ground 1 as pleaded, disregarded the substance of Ground 1 and, in effect, erected a his own ground (that the ambit of the order made was too wide) and demolished that ‘straw man’ ground by hypothesising the availability a narrower order with an alternative justification (based on a conjectured application for an order confined to hazardous materials under a jurisdiction grounded on the tenant’s obligations). Rather than examining and determining the substance of Ground 1, i.e. whether the District judge had been right to conclude that s.9 A of the 1985 Act established both a legal or equitable right of Ms Freeman as landlord which merited protection and a legal or equitable principle which justified exercising the power to grant injunctive orders against Mr Batt as tenant, the Circuit judge sidestepped Ground 1 as pleaded, formulated his own purported basis for making the orders and refused permission on Ground 1 on that basis.

63. A final difficulty emerges from the approach taken by the Circuit judge to Ground 1. Whilst he posited a narrower order based on a conjectured application for an order confined to hazardous materials under a jurisdiction grounded on the tenant’s obligations, he refused permission to appeal. This left in place the wider order that the Circuit Judge had himself deprecated during the course of argument as being too wide in it its ambit when he observed that “It should not be all of his belongings, because he has been granted a tenancy of the room. So in other words, the injunction goes too far.” Accordingly, in addition to failing to conduct a proper examination of, and to make an effective determination of, the substance of Ground 1 as pleaded, and refusing permission on Ground 1 on a basis that had not been pleaded at first instance, the Circuit judge left in place a mandatory injunctive order with penal consequences that the Circuit judge himself had considered too wide in its terms.

64. I acknowledge that the Circuit judge was not required to remain confined within the arguments advanced in respect of Ground 1 by Mr Fitzpatrick. Further, it is plain that the Circuit judge considered the ground being pursued by Mr Batt to be “very technical”. However, in the circumstances set out above, I am satisfied that the Circuit judge’s decision to refuse permission on Ground 1 of Mr Batt’s grounds of appeal went beyond wrong, or even extremely wrong, and strayed into the narrow band of judicial decisions in which this court is entitled to grant relief due to a fundamental departure from the correct procedure and a frustration of the judicial process of determining an application for permission to appeal.

65. In pursuing Ground 1, Mr Batt was not taking a ‘technical’ approach but rather was seeking, properly, to rely on the law as he submitted it to be, namely that s.9 A of the 1985 Act provided no jurisdiction for the District judge to make injunctive orders against him as tenant. At the very heart of Mr Batt’s appeal was his assertion that there was no jurisdiction to grant the mandatory injunctive orders the District judge made him subject to. The Circuit judge did not engage with that argument and did not make any decision on that argument. I am satisfied in all the circumstances that the Circuit judge failed altogether to enquire or adjudicate upon a ground of appeal which it was his unequivocal duty to address, amounting to a jurisdictional error that must attract a remedy by way of judicial review. Ground 2

66. With respect to Ground 2 of his application for judicial review, Mr Fitzpatrick contends on behalf of Mr Batt that, in the approach taken by the Circuit judge to his application for permission to appeal, there was a denial of the Mr Batt’s right to a fair hearing.

67. The matters relied on by Mr Fitzpatrick on behalf of Mr Batt with respect to Ground 2 of the claim for judicial review comprise a number of assertions with respect to fairness. Namely: i) That it was only on the day of the hearing on the 19th July 2023 that the argument under section 9 A of the Act was raised with an application being made to amend the injunction application. ii) That a detailed Skeleton Argument raising the additional argument under section 9 A was only served on the Claimant on the day of the hearing, shortly before the hearing commenced. iii) That it was unfair to expect the Claimant to deal with this new and complex basis for an injunction on the day of the hearing. iv) That it was unfair for the Court not to deal substantively with Ground 1 and Ground 2 in accordance with CPR 52.6. v) That it was unfair to dismiss Ground 1 on the basis that the injunction could have been made on an alternative footing. vi) That it was unfair to indicate that a concession that the injunction could have been made on an alternative basis had been made when it had not, in fact, been made. vii) That it was unfair to ignore the impediments to the making of an injunction on the basis of tenant-like behaviour. viii) That whilst the Circuit judge considered an injunction could have been made to prevent combustible and hazardous materials being stored in the loft, there is no explanation in the judgment as to how that was consonant with the actual injunction that had been granted. ix) That it was unfair for the judge to refuse to consider the transcript of the hearing before the District Judge when addressing Ground 2 of the grounds of appeal.

68. Whilst the foregoing wider approach to unfairness is taken in Mr Fitzpatrick’s Skeleton Argument, relying on the recent decision of the Court of Appeal in R (Koro) v Central London County Court [2024] EWCA Civ 94 , as will be apparent from the matters set out above, I am satisfied that my analysis in respect of Ground 1 suffices also to deal with Ground 2 of Mr Batt’s claim for judicial review asserting the denial of a fair hearing.

69. As is clear from the domestic and European authorities I have dealt with above, the failure by the Circuit judge to enquire or adjudicate upon Ground 1 that comprises the fundamental departure from the correct procedure and a frustration of the judicial process of determining an application for permission to appeal, also amounts to a violation Art 6(1) in circumstances where the effect of Article 6(1) is to place the court under a duty to conduct a proper examination of the grounds of appeal. In the circumstances, it is not necessary for me to address individually the other aspects of unfairness relied on by Mr Fitzpatrick on behalf of Mr Batt.

70. In the circumstances, I am satisfied that Ground 2 of Mr Batt’s application for judicial review also must succeed. CONCLUSION

71. The existence of a very narrow jurisdiction to bring a claim for judicial review against a decision to refuse permission to appeal, which is otherwise final, recognises that, whilst a decision may be final, that final decision must be fair. For the reasons set out above, I am satisfied that the Claimant’s claim for judicial review must be allowed on both grounds and that the decision of HHJ Gerald to refuse permission to appeal on Grounds 1 to 4 of the grounds of appeal must be quashed. The matter will be remitted for fresh consideration of permission to appeal on Grounds 1 to 4 before another Circuit Judge sitting at the Central London County Court.

72. I will invite counsel to draw an order accordingly.