Harassment – when new evidence isn’t.

Taiwo v Homelets of Bath Ltd (2018) EWHC 2757 (QB)

This was Homelets of Bath appeal from first instance judgment against them on Ms T’s claim for harassment under Prevention of Harassment Act 1997 and Protection from Eviction Act 1977, and assault and false imprisonment, with damages to be assessed.

Homelets were (and apparently are) a letting agency. They managed an assured shorthold tenancy with the tenant being Mr Nwanokwu. This had started in 2009. In June 2010, Mr N told the agents his wife, Ms T, would be joining him and asked if she could be made joint tenant. Homelets responded that this was not possible and served a s.21 notice. Ms T have moved to the flat on June 2010. In July 2010 she had a baby – she was in hospital for two weeks for a difficult birth. IN August, Mr N was in hospital. A rent payment was missed, and Caroline Arundell of Homelets (who had subsequently died), chased Mr N, who said a cousin was handling both rent payments and moving out while he was in hospital.

Ms T later brought a claim, in person, for harassment and assault, following a course of conduct by Homelets over 5 days, with specific events alleged on 30 September, 1 October and 5 October 2010.

The appeal judgment does not go into great detail, but something of the nature of the events can be seen from what is reported of a video recording of 30 September 2010.

during the hearing of the appeal I was shown a video recording that had been in evidence in the trial, which was taken on 30 September 2010. The video recording showed the front hall of the flat. It began with “noises off” in the form of the sound of keys being used. Mrs Arundell entered the flat, and then in response to the noise Mrs Taiwo came into the front hall carrying her relatively recently born baby. Mr Maynard said that the video showed no “physical abuse” and was inconsistent with Mrs Taiwo’s account of that day in the 10 April 2012. It is true that Mrs Arundell did not touch Mrs Taiwo. The judge’s assessment of this evidence in (44) of his judgment was, however, that the video shows Mrs Arundell to be “rude, condescending and insulting” and “quite unnecessarily so”. She was:

“plainly threatening repossession and eviction despite knowing, as she must as a letting agent, that she could not do so without a court order, and then is scathing and insulting when C makes the point that it would be better when she had the order.”

He continues:

“She (Mrs Arundell) makes a threat about returning the next day with a locksmith to change the locks and to repossess the flat. In my judgment this was designed to be and was threatening and calculated to alarm the claimant, a woman on her own, with a very young baby whose home has just been entered without permission by a stranger with a key.”

There was a split trial in the claim, with the initial trial on liability. The Recorder found for Ms T.

Homelets sought to appeal, first on 12 grounds, then on amended grounds, on 10 grounds. They were given permission on two grounds, and, on renewed application were again refused permission to appeal on the other 8 grounds (which included accusations that the Judge below should not have treated Ms T’s evidence as credible, and that the Judge had ‘stepped into the arena of the trial’ and ceased to act judicially).

The two grounds Homelets were given permission on were:

i) whether the judge should have admitted evidence from Mr Abayomi Odebode; and

ii) whether fresh evidence in the form of the 10 April 2012 (from Ms T to the Bath Police) letter should be admitted.

On, ii) – the fresh evidence, Ladd v Marshall [1954] 1 WLR 1489 (CA) applied – the criteria being

i) the evidence could not have been obtained with reasonable diligence for use at the trial.

ii) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

iii) the evidence must be such as is presumably to be believed; it must be apparently credible, although it need not be incontrovertible.

Ms T’s letter to the Bath Police was credible, but Homelets knew about the letter before trial and had unaccountably delayed in seeking it from Ms T until shortly before trial. Ms T did not have a copy. If Homelets had sought the letter in a timely manner, then they could have obtained a copy from the police, as they now had, before trial.

Further, though the letter contained a degree of exaggeration of events, it was intended to obtain action from the Bath police. The first instance judge had already concluded that there was some degree of exaggeration and overreaction in Ms T’s evidence. On that basis is could not be concluded that the letter would have had an important influence on the result of the case.

So, the letter did not satisfy the Ladd v Marshall criteria for new evidence on appeal.

On ground i) Mr Odebode was a relative of Ms T, with a Graduate Diploma in Law. He was initially given permission to act as Ms T’s lay representative at the trial.

On the first morning of the trial, during the course of Mr Odebode’s direct examination of Mrs Taiwo, Mrs Taiwo made references in the third person to a family member coming to the flat on 5 October 2010. Shortly before the lunch adjournment on the first day of trial, Mr Odebode on his own initiative revealed to the judge that he was the family member to whom Mrs Taiwo was referring in her oral evidence just before that point. He said that he was “not sure if that is something that I rightly should disclose now”.

The Judge withdrew Mr O’s status as lay representative, but allowed him to continue as a (non advocating) McKenzie friend. Mr O was also permitted to give evidence.

Homelets argued that a) the Judge hd determined of his own motion that Mr O should be a witness and give evidence, or b) if it was at Ms T’s application, the Denton criteria had not been applied.

The High Court found that it was not the Judge’s own motion. “The judge provided some guidance to Mrs Taiwo, as was quite proper when dealing with a litigant in person without formally advising her, but ultimately it was Mrs Taiwo’s request that Mr Odebode’s evidence be admitted.”

On the Denton criteria and the late application to admit evidence, there was no express reference to Denton in the judgment, but it was clear that the criteria had been applied in substance, and that was what mattered.

A careful reading of the transcript, including of his ruling on the admission of Mr Odebode’s evidence, shows that he considered that the failure to provide the witness statement by the deadline stipulated in the directions for trial was a significant failure. It is also clear that he carefully considered why the default occurred, and that broadly there was no good reason for the default to have occurred. But his specific ruling on the admission of the evidence shows that he clearly concluded that in all the circumstances of the case, it was necessary to admit Mr Odebode’s evidence in order for the court to deal justly with the application.

Appeal dismissed.

Comment

I think the Ladd v Marshall and Denton points are both straightforward and in line with authority. What is somewhat surprising is the vigour and attempted extent of Homelets appeal. As the High Court notes on a couple of occasions, their submissions were “sailing close to the wind” in trying to introduce some of the refused grounds of appeal (of which there were 10 or 8).

Given the very clear evidence of the video of 30 September 2010, there was at least one occasion on which Homelets agent let herself into the property, without any notice, and, while there, threatened to send locksmiths around the next day to evict the occupiers, including a very young baby, without a court order. While the rest of the evidence is not described in this appeal judgment, it was clearly sufficient for the recorder to find a repeated course of conduct. One would hope that Homelets of Bath do not consider this to be in any way acceptable conduct.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Possession, Unlawful eviction and harassment.

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