London Borough of Brent v Tudor [2013] EWCA Civ 157

This was an appeal of a Circuit Judge’s finding that LB Brent’s possession claim under Ground 16, Schedule 2 Housing Act 1985 failed because the property was reasonably needed to accommodate those living there. Very unusually, the appeal was in large part a challenge to the Judge’s findings of fact.

Ms Tudor had succeeded to her mother’s tenancy of a six bedroom property. The mother had died in March 2009. Ms T had applied to succeed in July 2009 after Brent served an NTQ. She named four members of her family as living with her. The Council replied in August 2009 making clear that it considered the house was under-occupied. In October 2009, Ms T applied again, naming eight members of her family as living there.

Ground 16 of Schedule 2 to the 1985 Act provides that where a person succeeds to a tenancy by virtue of section 89 it is a ground for possession if the accommodation afforded by the property “is more extensive than is reasonably required by the tenant” and the notice is served less than twelve months after the date of the previous tenant’s death.

Brent served an Notice Seeking Possession, raising Ground 16, in March 2010 and bought possession proceedings in March 2011. Key to the whole case was whether Ms T’s brother Christopher and two of his children lived at the property. It was accepted that Ms T,  and her disabled brother Valentine lived there. Ms T also asserted in her defence that her niece Roberta and Christopher’s infant daughter Saraiya lived at the property. However, it was later admitted that Roberta had moved out at a date prior to the Defence being filed. It isn’t entirely clear what was decided about Saraiya, but it appears that the Judge did not consider there was a reasonable requirement for her to be accommodated at the property.

Brent’s view was that while it:

accepted that Christopher had lived at the Lydford Road property between October 2009 and early 2010 after his marriage broke down and he left the matrimonial home in Dartford, it had concluded that, at the material time, the only member of the Cheryl’s family living with her at the property was Valentine. It alleged that, although Christopher had connections with Lydford Road, he lived with his partner Maria Mathura at 51 Sidcup Road in Lee.

The primary issue then was the factual question of Christopher’s occupation.

At first instance trial in March 2012, there was, to put it mildly, very mixed evidence. Christopher asserted his occupation began in 2007 and continued. However, there was evidence from a Mr & Mrs Bass, cousins of Ms T, which appeared to put his occupation from some two years before at most. Ms Mathura had only claimed single person council tax discount from 2009.

Further Christopher had been registered for Council Tax and the electoral register at the Sidcup Road address in 2011 and 2012. He had completed a car insurance form giving the Sidcup Road address (about which Christopher said it was done to get a discount for Ms M).

Christopher had documents, including bank statements, employer’s letters, a telephone bill, his daughter’s birth certificate, correspondence with the Child Support Agency and National Insurance, CRB checks, case notes, all with the property address, mainly from 2010 and 2011. Ms M did not give evidence. Christopher was given the opportunity to collect further documents at lunchtime, but was still unable to produce documents relating to two insurance policies, a TV licence and a Sky TV account for which he was making regular payments.

The Judge at first instance found that Christopher and two of his children were ‘substantially living’ at the property at the material time, and that therefore 4 of the bedrooms were reasonably required. It was not reasonable to hold that the property was more extensive than was reasonably required.

Brent appealed to the Court of Appeal.

The initial difficulty in the appeal was the transcript of Judgment. It was an extempore judgment, but even so, the transcript was less than clear in places. The Court of Appeal had some words to say about this:

The transcript of the judgment approved by the judge contains a number of passages marked “inaudible”. The judge stated that counsel should be able to deal with at least some of these from their own notes. They have done their best, but the transcript still contains passages marked “inaudible” and “no note”. It is not clear why the judge in this case was unable to complete rather more of the gaps in the transcript. In most cases, a judge will have sufficient notes from the hearing to resolve gaps in a transcript without leaving the matter to counsel. A judge can, moreover, refresh his memory if needs be by asking for the case papers to be returned to him for the purpose of approving the transcript. Counsel’s note of a judgment is generally used in this court only where there is no official recording. It is important to keep in mind that a defective transcript may lead to a party not being able to establish his case on appeal. For that reason, judges should assist the appeal process by completing gaps in transcripts themselves so far as reasonably possible.

Brent had four grounds of appeal:

The first is that the judge was wrong to find that the reasonable requirement for Cheryl and her household included rooms for Christopher and his two sons. Ground two contends that the manner in which the judge requested and admitted evidence about the Sidcup Road Lee address was procedurally unfair, inter alia because the Council was not given any proper opportunity to investigate the evidence. Ground three is that the judge did not give any reasons for accepting some parts of Christopher’s evidence but rejecting other parts, for example that Saraiya needed to be accommodated with him. Ground four is that the judge did not give reasons as to why he rejected the evidence which contradicted Christopher’s claim to have lived at the property since 2007.

The Court of Appeal noted that the hurdles for an appeal against findings of fact are very high, particularly where the credibility of the witness is involved:

The height of the hurdle is illustrated by two of the three cases decided by this court in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 W.L.R. 2409. In English’s case itself, this court stated (at [53] and [57]) that the first instance judgment “gave little indication of the process of reasoning that led to the result”, and that it took “the appellate process and the assistance of counsel who appeared at the trial to enable [the court] to follow the judge’s reasoning”. However, having done so the appeal was dismissed.

In the Withers Farms case the court stated (at [74]) it did not find the section of the judgment dealing with causation easy to analyse; a number of different reasons for the judge’s conclusions were not set out in logical order but intertwined. It also stated (at [89]) that on a number of occasions it had to consider the underlying material to which the judge referred in order to understand his reasoning and on one occasion it failed to follow his reasoning even with the benefit of the underlying material. But in this case also, since, at the end of the exercise the court was able to identify reasons for the judge’s conclusions which justified his decision, this and the fact he made sufficient reference to the evidence that had weighed with him, enabled it to follow his reasoning and to dismiss the appeal based on inadequacy of reasons.

Brent rehearsed the evidence that went against Christopher having occupied since 2007, as he asserted, and raised further disclosure, such as the Sky records showing he was paying for a service for the Sidcup address, and was using that address as a registered office for a company.Brent argued that no reasonable Court could have accepted Christopher’s account as more likely than not to be true. “None of this evidence was rejected in the judgment and Miss Cooper [for Brent] complained that no reasons were given for preferring Christopher’s largely uncorroborated testimony”. Indeed the Judge had failed to address how the evidence undermined Christopher’s credibility.

However, the Court of Appeal decided that this resembled English‘s case in that “it unfortunately took the appellate process and the assistance of counsel who appeared at the trial to enable the court to follow the judge’s reasoning. But, having done so, I consider that, on the evidence before the judge” it was open to him to reach the conclusion he did.

This was, in short, that the Judge had considered the credibility of Christopher’s account in the course of evidence, indeed this was why he was given permission to fetch more documents, but there was documentary evidence and the evidence of Mr & Mrs Bass to support his residing at the property since 2010 at least, which was sufficient to satisfy an inquiry into ‘the reality of the situation’ where people had moved in since the death of the original tenant, pace Kensington and Chelsea RBC v Pascall [2009] EWCA Civ 212 at [6]:

There were before the judge a considerable number of documents from a number of sources which supported Christopher’s assertion. Most were from 2010 or 2011, although there was an O2 telephone bill from 2007 and Saraiya’s birth certificate was from 2009. The other documents included a Notice including Christopher’s name claiming the right to buy dated 30 March 2010, letters from the Child Support Agency and HMRC dated August and October 2010, a CRB certificate dated November 2010, letters from Jobcentre Plus and the Maidstone and Tunbridge Wells NHS Trust dated February 2011. Other documents including a wage slip dated February 2012 and a telephone bill dated March 2012 were dated very shortly before the hearing and, in themselves, were not of much weight in establishing “genuine” occupation.

On ground 2:

I do not consider that there is anything in the complaint that this evidence about the Sidcup Road Lee property was obtained during Mr Sandham’s closing submissions in a procedurally unfair way. Mr Sandham had stated on instructions that the property had been marketed as a three bedroomed house, but that Cheryl’s case was that the third bedroom was in fact a box room [192 §1443]. Miss Cooper submitted that the Council was not given any proper opportunity to investigate the evidence, and did not agree to that characterisation of it. She also submitted that there was no proper basis for the judge to find the property could not accommodate Christopher, Maria and the three children without difficulty. There is, however, no finding in the judgment to this effect although in the transcript of proceedings Miss Cooper had said [193 §1451] it was “a standard three bedroomed semi-detached house in which many families with three children live” and the judge stated (as the Council had contended) that its “an estate agents’ three bed and as with all houses as Miss Cooper rightly says, it can accommodate someone there if forced to …” It is therefore difficult to see how this issue adversely affected the Council.

Ground 3 and 4 on the failure to give reasons for accepting part of Christopher’s evidence but not others, did not succeed either:

It is clearly desirable for judges to give reasons for their decisions. But it is also clearly established, see eg Knight v Clifton [1971] Ch 700, at 721 and Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119, 122 that there is no duty on a judge when giving his reasons to deal with every submission presented by counsel. What is important is for the parties to know why one has lost and the other has won. In English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at [19] this court stated that this requirement:
“… does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the isues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained.”
In this case, after the examination of the documentary material before the judge and parts of the transcript of the proceedings we undertook with counsel, it has become apparent why the Council lost.

Appeal dismissed.

Comment

If proof were needed that an appeal on the issue of the first instance decisions of fact is very, very, very difficult, this case presents it. While from the portions of the first instance judgment quoted, and from the Court of Appeal’s own comments, it appears that it was hard or impossible to discern the basis on which the Judge had reached a decision, the Court of Appeal was here prepared to consider the evidence and other materials quite closely to see if there was a plausible or viable route for the Judge to come to the conclusions he had.

A decision where the reasoning on the finding of facts is obscure may well be insufficient for an appeal. One suspects that the decision must be clear, but clearly wrong, or even simply not possible on the available evidence, to merit an appeal on decisions of fact.