Reply To: Method of o/p recovery


Findlay gives the reference to Cotter in the introductory notes (there arent any in the current (18th) edition, but you can find it on page xix of the 16th edition.

689 refers to the page of the Housing Law reports. There is a copy of Cotter on hbinfo, but I got an rtf copy from BAILII. The passge Findlay cites is:

“The pleading in paragraph 6 does not, however, disclose a breach of duty to Mr Cotter in public law. Paragraph 6 pleads a notification of arrears of rent by Mr Cotter to the council, a duty to pay and a failure or refusal to make the payment. As Mr Gordon QC pointed out in argument the pleading does not allege any determination in Mr Cotter’s favour by the Council under Part X1 of the 1987 Regulations,so as to give rise to a public law duty to make payment (See R. v. Northavon D.C. Ex parte Palmer (1995) 27 H.L.R. 576 at 582 on the necessity of concluding the public law decision making function before such a public or private law duty can be established). Further, there is no allegation that there was a refusal or failure to make a determination at all. There is no allegation of a flaw in the procedure for internal and external review of any determination that was made (cf.Warwick D.C. v. Freeman (1994) 27 H.L.R. 616 at 619,620, where,in respect of a county court claim for an overpayment, a defence was successfully raised that the local authority had failed to follow the statutory procedure for the determination of the recoverable overpayment under Part XI). No proposals were advanced by Mr Underwood to amend paragraph 6 of the counterclaim. “