James Stark

Housing & Homelessness

James is recognised as a Tier 1 Leading Junior for Social housing by The Legal 500 and described as  ‘leading expert on all aspects of housing law’ (Chambers and Partners 2016) and his practice includes residential landlord and tenant (public/private). In particular it includes possession proceedings, disrepair and housing related personal injury, unlawful eviction and harassment, judicial review, allocations, and homelessness (Housing Act 1996 appeals), housing benefit, and injunctions.  James has particular expertise in defending claims brought for the termination of tenancy under Mobile Homes Act 1983 . James’ experience also includes enforcing private rented sector standards under the Housing Act 2004 and Environmental Protection Act 1990, cases involving disabled facilities grants, mortgage possessions, and property law generally.  He has experience in defending He has experience of acting on behalf of those with diminished capacity through instructions from the Official Solicitor and in homelessness cases involving clients with mental health problems.

Public law

James is recognised as a Tier 1 Leading Junior for Public law by The Legal 500 and recommended for his ‘substantial experience in public law challenges against public bodies in the North’ (Chambers and Partners 2012), and is regularly involved in public law and human rights cases across a number of areas of law. This involves challenging decisions of public authorities and tribunals, including judicial reviews relating to community care with a particular interest in the interface of community care and asylum support, mental health including tribunal  delays and failure to apply Article 8 ECHR to restrictions imposed, education and housing and homelessness. He advises on the impact and rights and obligations under the ECHR across all areas of practice.

Community care & mental health

James undertakes judicial review of community care and mental health decisions including failing to carry out assessments, unlawful eligibility criteria, the exclusion of persons subject to immigration control from community care services, failing to put care plans into effect, failing to provide services in an emergency and failing to ensure compliance with the Public Sector Equality Duty. James has acted in the Mental Health Tribunal for those seeking discharge and for variation of conditions of discharge in particular for restricted patients.

Discrimination

James undertakes discrimination claims in goods and services relating to premises, and the conduct of public authorities

Local government law

James has a particular interest in local authority powers and duties including Housing Act 2004 compulsory purchase, planning, education, and social services. James appeared in a successful application by Rossendale BC to obtain a final management order in respect of purported hostel accommodation in terrible condition. He has particular interest in cases concerning the protection of tenants from rogue landlords .He has advised local authorities on their powers to restrict misuse of housing benefit by those letting exempt accommodation and their use of capital receipts for the purpose of social and affordable housing

Personal information and privacy

James accepts instructions in relation to Data Protection Act 1998, Freedom of Information Act 2000 and breach of confidence claims.

Gypsy and Traveller and Boating Cases

James has frequently represented gypsies and travellers defending claims in respect of unauthorised encampments and on protected sites under Mobile Homes Act 1983. He has significant experience in acting on behalf of gypsies and travellers in homelessness appeals including C-v-Forest of Dean Dc (2015)County Court at Bristol  in which, inter alia, it was established that the local connection test adopted by the respondent was discriminatory against gypsies and travellers in that it failed to take into account difficulties in establishing family association to an area .

James has acted in a number of cases defending boat dwellers against claims for injunctions and declarations to remove them from the waterways on the basis they were in breach of their licence conditions to navigate the waterways continuously in particular the leading case of Canal & River Trust-v-Jones where on a second appeal , the Court of Appeal allowed an appeal against the striking out of an Article 8 defence closely linked to defences that the licence condition had not been breached and that by failing to make reasonable adjustments in respect of the Defendant’s disability to it continuous cruising policy the Trust had acted unlawfully. This case led to a significant positive change of approach by the Trust to boat dwellers with disabilities.

Misuse of powers of social control

James has a particular interest in the use of methods addressed apparently at Anti-Social Behaviour (ASB), including Public Spaces Protection Orders, being misused for social control.

James has experience of defending those against whom injunctions are sought and challenging existing injunctions. This also extends to defending those against whom gang injunctions are sought and challenging existing gang injunctions. He has been instructed in a number of leading cases in the Court of Appeal concerning Article 6 challenges to the nature and extent of interim gang injunctions. James also appeared in a challenge to a begging injunction brought by Leeds City Council in 2015 which was eventually withdrawn. James was a member of the Civil Justice Council Working Party on Anti-Social Behaviour Injunctions in 2019-2020 in recognition of his experience and expertise in this area.

Notable cases

Supreme Court and House of Lords

• Samuels-v-Birmingham City Council [2019] UKSC 28 {2019} P.T.S.R 1229 ( not open to find a person on subsistence benefits intentionally homeless on grounds that a shortfall between rent and benefits awarded for housing costs could be made up from subsistence benefits)
• Scott v Southern Pacific Mortgages Ltd and Ors [2014] UKSC 52 [2015] AC 385 ( also known as North East Property Buyers Litigation ): Sale and leaseback whether a vendor’s interest amounted to an equitable interest and was capable of binding the mortgagee of purchaser
• Manchester City Council v Pinnock [2011] 2 AC 104 [2010] UKSC 45: Proportionality – established Article 8 defences could be run in the county court and public law defences in cases of introductory and demoted tenancies )
• R v Manchester Crown Court ex parte McCann [2003] AC 787; [2002] UKHL 39: Anti-Social Behaviour Orders- criminal or civil proceedings and what standard of proof does Article 6 ECHR require

Court of Appeal

• Jones-v-Birmingham City Council another [2019] Q.B 521 CA – appropriate standard of proof for an application for a gang injunction and/or an anti-social behaviour injunction based on harassment , alarm or distress of the public
• Safi-v-Sandwell MBC  [2019] HLR 16 [2018] EWCA 2876 – local authority must take into account whether reasonable to continue to occupy in the future not just for the present and must act fairly
• Jones v Canal And River Trust [2018] QB 305 CA  ( claim to remove boater from waterway on basis of withdrawn licence Article 8 defence not to be treated same as in housing cases especially when linked to defence on basis licence should not have been withdrawn and under Equality Act 2010
• Murray-v-Chief Constable of Lancashire [2015] EWCA Civ 1174- criteria for making an interim injunction in gang related injunction case
• R(o/a JL )Secretary of State for the Defence {2013] P.T.S.R 1014 [2013] EWCA Civ 449; The defence of disproportionate interference in an occupier’s right to respect for private and family life under the European Convention on Human Rights 1950 art.8 could be used, not only against a claim for possession, but also as a defence against enforcement of the order once obtained so long as not an abuse of process from a delay in raising it
• Makisi v Birmingham City Council [2011]HLR 27  EWCA Civ 355- successful appeal establishing that applicant had right to make oral representations at an oral hearing in person in a homelessness review following minded to letter
• North British Housing Association v Matthews and others [ [2005] H.L.R. 17: Power to adjourn mandatory possession proceedings under Ground 8 Schedule 2 Housing Act 1988 and in particular when defence of set-off raised.
• Salford City Council v Garner [2004] HLR 35; The Times 10 March 2004: Handing over keys and allowing defendant into occupation created a tenancy- possession proceedings only started when issued by the court not when left at court for issue
• Hayes v Transco plc [2003] EWCA Civ 261; ( unfairness of trial judge when circumscribing cross -examination without notice
• Manchester City Council v Finn [2003] HLR41; [2002] EWCA Civ 1998: – a postponed possession order that had not been breached could be reopened under Section 85(2) Housing Act 1988 to bring forward and not simply postpone the date of possession
• Bond v Leicester City Council [2002] EWCA HLR 6: – sole question for court in domestic violence intentionality case was whether domestic violence had occurred and was likely in the future -irrelevant whether victim could seek a non -molestation injunction
• Sheffield City Council v Hopkins [2002] EWCA HLR 12: – eviction of a tenant on possession proceedings brought on grounds of rent arrears – whether to suspend or not could take into account other alleged breaches of tenancy /statutory grounds but may require a new trial to do so

High Court

• Chief Constable of Lancashire -v-Wilson and others [2015] EWHC 2763 (QB) (14 July 2015);- standard of proof in gang related injunctions and classification of proceedings
• Sharing, R (on the application of) v Preston County Court [2012] EWHC 515 (Admin) (22 February 2012): county court judge displayed apparent bias when refusing permission to appeal – refusal quashed
• Rogerson v Wigan MBC [2005] H.L.R. 10, p129; [2004] EWHC 1677 (QB) – what accommodation fell within Section 622 Housing Act 1985 – when did homeless hostel accommodation attract fall within Protection from Eviction Act 1977 – when referable to Section 193(2) not Section 188 duty
• Yates v Elaby ChD 17/11/03 Reported Lawtel 1/11/06 [2003] WLUK 920: – default judgment entered against one defendant in claims in alternative did not amount to an election and should not have been entered and should have been set aside on application made at trial x
• R v Secretary of State Home Dept ex parte Nazir Musa EWHC (QB) 11/5/2000: Extending time limits in judicial review and inappropriate use of application to attempt to set aside permission granted

EAT

• Harries and Simpson v Alan Paine Knitwear and others UKEAT/0014/04/SM 28/5/04.(apparent bias in conduct of hearing by employment tribunal – judgment set aside)

County Court

• Helena Housing Ltd v Mower & Molyneux (28/11/07) (HHJ Mackay at Liverpool County Court): Entrenched tolerated trespassers. * no appeal from successful defence of order sought -but successful argument that Payne-v-Cooper [1958] QB 174 should have been followed and Court of Appeal judgments that held that tolerated trespassers could be entrenched  was wrong, later upheld by House of Lords in Knowsley Housing Trust-v-White [2009]1 AC 636
• Eleheimer-v-Manchester City Council [2020] Legal Action HHJ Khan  Legal Action – applicant could not be intentionally homeless from accommodation that was deemed unsuitable by bed and breakfast regulations on proper application of Section 193(6) Housing Act 1996
• Rugby BC -v-McGinley [2020] Legal Action Nuneaton County Court DJ ( now HHJ Murch) claim for possession of pitch on mobile home site for gypsies and travellers dismissed as failure to serve written statement of terms meant occupier under Mobile Homes Act 1983 able to grant licence to defendant and on public law grounds as Claimant had prejudged whether to bring possession proceedings before making welfare enquiries and had departed from its own published policy unlawfully in refusing to entertain an application from the Defendant for a pitch

Industrial Tribunal

• Smith v Humberside Magistrates Court [2003] IDS Brief.

Publications

Contributor on Housing Law Issues to Legal Action, Roof, Independent Lawyer, and other legal publications. Articles include:

• Are squatting reform proposals causing confusion? – Lexis Nexis Current Awareness October 2011;
• “Lawful consequences” (article covering the House of Lords ruling that it is not unlawful to classify people as ‘homeless at home’) – Roof Magazine September 2009;
• “Entrenched tolerated trespassers: where now after Porter?” – Legal Action May 2008;
• “Entrenched tolerated trespassers – a way to dig them out?” – Legal Action March 2008; and
• “New law for the EU Homeless” – Independent Lawyer May 2007.

Memberships

• Legal Action Group;
• North West Housing Law Practitioners (co-ordinator); and
• Administrative Law Bar Association.

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