For many years I have been experiencing problems with the quality of housing files received in homelessness cases from local authorities. In the days before digital documents I used to wonder if the council staff deliberately shuffled the papers up before sending them to me in order to make them more difficult to read. They often appeared to be in no order at all and took a long time to sort into date order. This became worse after the introduction of digital documents as some councils have tended to provide not just a copy of their file but various computer files which comprised the file. These can be in a number of different formats including PDFs, Word documents, spreadsheets, TIFs, and other formats which neither me nor my computer had seen before and which could not be opened. It then takes a lot of work to convert these into a format which enables me to read them and to prepare an appeal bundle for the Court in a Homelessness Appeal.
The London Borough of Lambeth are repeat offenders when it comes to providing really bad quality disclosure of housing files. This led to a dispute which came before HHJ Lethem at a telephone hearing on 9 June 2020 in the case of Fowell-Boston v Lambeth which has not been reported as far as I know.
The background to the above hearing was that Lambeth applied to strike out my appeal on the basis that I had not provided an amended Grounds of Appeal within a deadline. That deadline was dependent on the council having sent me a copy of their file in order for me to prepare the amended Grounds. I opposed that application and made a cross application for an Order debarring the council from defending the appeal on the basis that they had failed to comply with the Order requiring them to provide a copy of their file. This was because I maintained that there were a number of documents missing from the various files which they had sent me so they could not be said to have sent a a copy of their whole file. By the time of the hearing the actual appeal had settled but it was necessary to determine the above issues in relation to who should pay the costs of the appeal.
At the hearing HHJ Judge Lethem provided very useful guidance based on his understanding of the situation which was actually based on any arguments put by either side but on his own observations. He referred us to CPR 6.20 which deals with the methods of service of documents. This deals with the usual means of service such as personal service or postal service and goes on at paragraph 6.20 (1)(d) to refer to “fax or other means of electronic communication in accordance with Practice Direction 6A”.
Practice Direction 6A – Service within the United Kingdom deals in detail with service by fax or other electronic means at paragraph 4.1. It provides that documents can be served electronically but only where the party or solicitor has indicated to the party serving the document that they are willing to accept service by electronic means. Importantly paragraph 4.2 states that where a party intends to serve a document by electronic means that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example the format in which the documents are to be sent and the maximum size and attachments that may be received).
The importance of this rule can be seen from the case of Barton v Wright Hassaal LLP (2018) where a Claimant had served a Claim Form on the solicitor for the Defendant by email the day before the limitation period for doing so expired. He did not ask for agreement to accept service in that format. The Defendant later pointed out that they did not consider that they had been served and that the Claimant was therefore out of time for pursuing the Claim. The Claimant unsuccessfully challenged this all the way to the supreme court where it was held that he was out of time because he did not obtain agreement to serve the Claim Form electronically.
I had made it clear to Lambeth in this case and in a previous case that I was unhappy about the way in which they were serving documents in multiple formats. HHJ Lethem stated that he did not consider that Lambeth had served the documents in accordance with the rules because they had not asked whether there were any limitations on the manner in which I was prepared to accept service of documents before sending documents to me electronically and that there had to be agreement on such limitations before service could be effected in this way.￼￼
In conclusion the Judge stated that he was not prepared to accept that I had agreed to accept the documents in the format given and that the requirements of paragraph 4.2 had not therefore been met. This meant that the housing files had not been served. The Judge stated that he was fortified in his finding by the above case of Barton v Wright Hassal LLP (2018) where the court had held that paragraph 4.2 requires prior enquiry. As a result Lambeth’s application to strike out my appeal was dismissed. This was because the time limit for me to serve the amended Grounds of Appeal had not started to run because Lambeth had not served the documents which they were required to serve before I was obliged to serve the amended Grounds of Appeal.
Following the above hearing I have made a point of ensuring that I notify local authorities that I am only prepared to accept electronic service of documents subject to the limitation that the documents are provided in PDF format and sorted into date order. I have stated that I am only prepared to accept composite bundles of PDFs rather than multiple individual PDF files. I do this by inserting the following recital in the draft Directions Order which I send to the court when issuing a Section 204 Appeal:-
“Upon the Appellant giving notice that he/she is prepared to accept service of documents in digital format for the purposes of CPR 6.20(d) but subject to the following limitations for the purposes of rule 4.2 of Practice Direction 6A – Service within the United Kingdom:-
- The documents must be sorted into date order.
- The documents must be provided in one combined PDF or more than one combined PDF file if the size of the initial file or files are too large to be attached to an email message.”
I then include in the actual Directions Order a provision which reads:-
“The Respondent shall serve a copy of the Respondent’s housing file in the format set out above within 14 days of receiving this Order.”
I have not had any disputes yet with authorities who have served electronic documents in breach of an Order to the above effect. I hope that the above arguments will enable me to persuade courts in future that folders filled with badly named documents in various formats of the kind which I have been sent by Lambeth in the past and by other authorities are not acceptable and will not constitute service of documents.
The above is fine as far as to Section 202 Appeals go but does not of course apply to files served in connection with Section 202 Reviews. It may be arguable that the above rules apply to service of documents such as these provided in anticipation of litigation. However the Data Protection Act 2018 is of assistance. I am not sure of the precise section of the Act but I see from the section of the Information Commissioner’s Office website dealing with rights of access that those responding to a Subject Access Request “should provide the information in an accessible, concise and intelligible format”.
When I request copies of files in connection with Section 202 Reviews I generally do so with reference to the Data Protection Act 2018. Therefore, in the event that I receive documents in the future which are badly named and in multiple formats I propose to refer to the above guidance with a view to making a complaint the Information Commissioner’s office if necessary. I anticipate that many local authorities will argue that whatever format they produce their files in will be in compliance with this. It may therefore take a complaint to the Information Commissioner for this to be resolved. If anybody else has any information about this and/or the particular section of the Data Protection Act 2018 which applies please leave a comment.