Littlewood and another v Powys County Council

Estate agent – Regulation – Prohibition order – Defendant enforcement authority notifying claimant estate agents of intention to make prohibition order – Claimants wishing to make oral representations to adjudicator directly and face to face – Procedure promulgated by defendants requiring investigator alone to hear oral representations – Claimants applying for judicial review – Whether proper construction of paragraph 2 of Schedule 2 to Estate Agents Act 1979 requiring claimants’ oral representations to be heard directly and face to face by adjudicator as effective decision maker – Application granted The defendants were the lead enforcement authority which exercised and discharged regulatory powers and duties throughout the UK in relation to estate agency work, pursuant to the Estate Agents Act 1979. One of their powers was to make an order prohibiting a person from doing any estate agency work at all or from doing estate agency work of a description specified in the order. The defendants devised and promulgated a procedure whereby their power would be exercised in two stages: (i) an investigation by an investigator; and (ii) a decision by an adjudicator. The person affected would be heard directly, face to face, by the investigator and the adjudicator would not meet or see or hear directly from the claimants, but would be supplied with a tape or other audio recording and verbatim transcript of the oral representations. The claimant estate agents had been convicted of insider dealing and the defendants served notices upon them, pursuant to paragraph 2(1) of Schedule 2 to the 1979 Act, informing them of their proposal to make prohibition orders. The claimants gave notice, pursuant to paragraph 2(3)(b) of Schedule 2, that they wished to make representations orally as well as in writing. The defendants maintained that, on its proper construction, the 1979 Act did not require the adjudicator to hear oral representations face to face, and that their proposed procedure was permissible and lawful. The claimants applied for judicial review contending that, on its proper construction, the Act required that the oral representations were heard directly and face to face by the adjudicator, as the effective decision maker. Held: The application was granted. (1) The advantage perceived by Parliament in a hearing of oral representations, including evidence, could only be the perceived advantages which did or might ensue from the person who had to evaluate those representations and that evidence seeing and hearing directly from the person or persons making the representations and giving the evidence, and the opportunity for the person who had to evaluate the representations and evidence being able, if he wished, to engage in some dialogue and/or ask questions, if only by way of clarification and not by way of cross examination. That view was fortified by the gravity of what the decision maker might have to decide. Apart from the overall gravity of the process to the person affected as well as to consumers and the national interest (the language of section 25), the fact-finding stage might involve being satisfied as to serious matters. These included in section 3 (1) (b) of the Act as originally enacted, that the person concerned “has committed discrimination in the course of estate agency work”. To reach a conclusion about that fact might require very careful evaluation indeed of evidence, including evidence given by or on behalf of the person affected at the hearing of oral representations. (2) It could not be conceived that, when Parliament had enacted paragraphs 2 to 4 of Schedule 2 to the Act, it could have contemplated, still less intended, that the hearing of the oral representations could take place before a different person than the person who had actually been going to make the decision as to the facts who, under the procedure devised by the authority, was the adjudicator. Accordingly, the procedure, which the defendants currently proposed to adopt in their consideration of whether or not to make prohibition orders in relation to either or both of the claimants, did not comply with the requirements of the 1979 Act and was unlawful. If the defendants continued to delegate the making of the decisions to an adjudicator, it was that adjudicator who had to personally and face to face conduct the hearing of oral representations for the purpose of Schedule 2 to the Act. Per curiam: This was a decision which related to the situation of these two claimants and which might impact upon any current or future cases. The court knew nothing about the circumstances of the cases which the defendants had concluded to date, and expressed and implied no view as to the regularity of any of them. The present proceedings were essentially a pre-emptive judicial review to avert a future irregularity if the defendants had adhered to their proposed procedure. In the case of the already concluded cases, any irregularity (if any) was likely to have been remediable by an in-time appeal pursuant to section 7 of the 1979 Act. Jonathan Ashley-Norman (instructed by Direct Access) appeared for the claimants; Robert Griffiths QC and Nicola Strachan (instructed by Powys County Council) appeared for the defendants. Eileen O’Grady, barrister Click here to read transcript: Littlewood and another v Powys County Council