Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
Filter by Categories
Allocation
ASB
Assured Shorthold tenancy
assured-tenancy
Benefits and care
Deposits
Disrepair
Homeless
Housing Conditions
Housing law - All
Introductory and Demoted tenancies
Leasehold and shared ownership
Licences and occupiers
Mortgage possession
Nuisance
Possession
Regulation and planning
right-to-buy
secure-tenancy
Succession
Trusts and Estoppel
Unlawful eviction and harassment
12/07/2022

Rabbit holes to fall down

In case you are in need of distraction from the heat/the tory leadership contest/getting your first, second or third bout of covid/the general state of all things, may I present a small collection of judgments at which to rubberneck. None seem massively important in legal terms, but I can promise at least two or three jaw drops per judgment, and you may find you have spent days down the rabbit holes.

First, Albert Court (Westminster) Management Company Ltd & Ors v Fetaimia & Anor (2022) EWHC 1657 (QB) in which a freehold management company successfully brings harassment proceedings against two leaseholders, and containing amongst many immortal moments, the point where a defendant on the witness stand first has to be told to leave her notebooks behind, and then ordered to clean more notes off the back of her hands. Also, starting your defence at trial by effectively admitting you hold an illicit recording of an earlier hearing is not to be recommended.

Second, there simply isn’t time to keep fully abreast of the Brake v Axnoller litigation in all its many, many manifestations. But here are some recent ‘highlights’ of what is truly the Gormenghast Triology, or Game of Thrones box set of litigation.

The possession claim for the big house – Axnoller Events Ltd v Brake & Anor (2022) EWHC 365 (Ch). The Brakes lost. Then the judgment on what a ‘forthwith’ possession order meant. The Brakes lost that too. And also the stay of eviction application.

The unlawful eviction claim for the cottage – Brake & Ors v The Chedington Court Estate Ltd (2022) EWHC 366 (Ch). The Brakes lost. (You may see a pattern emerging).

Indemnity costs against the Brakes. “I found that she was making up evidence as she went along, that she changed her story as she gave evidence, and told lies which were frankly childish. I did not believe her written and oral evidence that the assurances and promises which (unsupported by any clear documentary evidence amongst the multitude of files produced) she claimed had happened had actually taken place. This really was the case of a defence which could properly be described as “a web of lies”.”

The freezing injunction judgment against the Brake’s assets (and their son’s). The Brakes lost. And then the Third Party Debt Order.

And I haven’t even touched on the Court of Appeal on the ‘private documents that weren’t’ case. But anyway, the Brakes lost. Read on and read the many, many other judgments not listed here at your peril. I disclaim any liability. But it is not every day that landlord and tenant law involves the condition of stashed horse semen, that’s all I’m saying.

Thirdly, Mohammed Rasool, he of the fake illegal eviction claims for properties where he wasn’t a tenant, the banning order against acting as landlord or agent, and the first ASBi against a landlord to stop harassing his tenants, has been found to be in contempt of court in the fake illegal eviction claims and had a general civil restraint order made against him.

I have no doubt that all of the applications were dishonest to the knowledge of Mr Rasool, and that they evidence the actions of a thoroughly dishonest individual. The false statements, which Mr Rasool admits to having made, were sufficient in themselves to lead to the obvious conclusion that Mr Rasool is not an individual whose evidence has any credibility, at least in the absence of corroboration by clear and undisputed contemporaneous documentation or evidence from independent witnesses.”

Fourthly, and finally, there was solicitor and landlord Scott Halborg’s failed judicial review of Hinckley and Bosworth Borough Council’s decision to issue him with a Community Protection Warning about his apparent conduct towards his tenants and their neighbours. Although not at issue in the JR, Mr Halborg makes some assertions about L&T and property law that are, well, dubious. For example about the landlord’s immediate right to a key for any lock the tenant has changed or added to the access ways to the property. Or whether someone can claim for nuisance that is alleged to affect a property that they don’t occupy and had in fact let to a tenant. There was also this remarkable judgment in another matter of Mr Halborg’s where he advanced 11 appellant’s notices with 24 appeals. Mr Halborg is apparently claiming against his parents and against their solicitors. Permission to appeal was given on some few grounds related to indemnity costs orders, but the General Civil Restraint Order survives. (We will re-encounter Mr Halborg in relation to a judgment of HHJ Backhouse on rights of audience for ‘solicitor’s agents’, when I get time to get to it.)

Don’t start any of these on a Wednesday morning, at least not unless you are on holiday….

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.

3 Comments

  1. Verity

    Indemnity costs judgement: “AEL also relies on three further features of the case. First, it says that the Brakes deliberately misled DJ Walsh at hearings in Yeovil on 20 March 2019 and 18 December 2019, by permitting counsel to tell him that they did not have “millions of pounds” as part of a submission that they had nowhere else to live, whereas in fact at that time they had more than £2 million in their bank accounts. The relevant part of the transcript of the first hearing (at which Mrs Brake was present in court) shows that DJ Walsh asked the Brakes’ counsel, Daisy Brown, whether there was anything else that she wanted to say to him, and that counsel then said this (at page 76 lines 23-27): “I do not know if you want me to address you on some fairly wild allegations about whether or not we have millions of pounds and we have another property hidden away because we do not and there is no evidence that there is another property. I do not think they are alleging that we do actually have another property.”

    “At the hearing on 18 December 2019, Mrs Brake was not in court, and the Brakes were represented by Stephen Davies QC, as Daisy Brown was unwell. The relevant part of the transcript of that hearing (at pages 31-33) shows that DJ Walsh specifically raised with Mr Davies QC the question whether he had been misled at the earlier hearing because as he now understood it the Brakes had in fact had the benefit of a “gift” from Saffron Foster of £2.6 million. Mr Davies QC confirmed that this money had been paid over in the six months ending autumn 2017, but he said that he could not take the matter any further. The judge referred specifically to the passage cited above from the transcript of the earlier hearing, and Mr Davies QC thanked him “for flagging it because that means I can take it back … and we can do a bit of archaeology there.” So far as I am aware, the matter was not however referred back to the judge thereafter.”

    “On the material before me, I am entirely satisfied that the district judge was led to believe that the Brakes did not have either another property or the resources to find another property. It does not matter whether counsel was aware that what she was saying was incorrect (but I emphasise that she is a respected member of the Bar, and I have heard nothing from her; I therefore proceed on the basis that she was not). This is because Mrs Brake, a highly intelligent woman, was in court, heard what was said, and was well aware both of its significance and of course also that it was untrue. But she did not alert her counsel or solicitors, either then or subsequently, and so the point was not corrected. The district judge himself then raised the point with Mr Davies QC in December, referring to the actual passage in the transcript of the earlier hearing, because Mr Davies QC had not been there. Mr Davies QC said he would refer the matter back to his solicitors so that, as he put it, some “archaeology” could be carried out. I assume that Mr Davies QC did what he said he would, but the fact is that the point was never followed up by the solicitors or the Brakes. Allowing the judge to be misled, and failing to correct a judge who has been misled, on an important matter of fact, are serious matters, and certainly out of the norm.”

    Reply
    • Giles Peaker

      The link is working, but it is to a pdf.

      Reply

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.