London Borough of Ealing v Richardson

LORD JUSTICE WARD: This is, I would like to think, a case which is unusual and somewhat unique. I would like to think that the problems which beset the courts below do not ordinarily arise. It comes to us as an appeal against the order of HHJ Oppenheimer, sitting in the Brentford County Court on 17 June of this year, when he gave permission for an appeal against the earlier order of District Judge Allen made on 10 February, suspending a warrant of possession of the appellant's home, held on a secure tenancy from the Local Authority, on terms that she pay £588 that day, and thereafter the current rent plus £10 a week off the arrears.

Judge Oppenheimer then ordered that the appeal before him proceed not by review but by way of re-hearing, and having done so, he allowed the appeal and ordered that the warrant of possession be issued. It is, therefore, a second appeal for which permission was given by Tuckey LJ for the reason that, arguably, there was an important point of procedure at stake. The important point of procedure can only be defined in terms of, in the words of CPR 52.11(1)(b), whether:

The history of this matter goes back a long way. Ms Richardson is the single parent mother of four children, two of whom are now adult but still living at home. One is receiving further education; the other applying for job seeker's allowances. There is also a teenager and one 11-year old. She became the secure tenant of this property in Perivale by virtue of a tenancy granted to her in November 1990. After nearly five years of that tenancy, she was in arrears to the extent of some £2,792, or thereabouts, and a claim was made for possession. The order was granted on 5 January 1996, by which time the arrears had been reduced to £2,086-odd and the order of the court was that possession be suspended provided the rent plus £5 a week was paid to discharge the arrears.

There is a lamentable history of failure to pay, with the result that, before the matters which come to our attention, eight applications had been made for orders to execute the warrant of possession, and eight applications had been successfully made by the tenant to suspend that execution. This was the ninth application made by the tenant to suspend the warrant of execution, which had been ordered by the court in September 2003, at which time the arrears were £2,196. For reasons that are not explained to us, Ms Richardson did not apply to suspend until a year later on 27 September 2004. By then the arrears had grown to £4,800.

The court adjourned the matter on its first appearance before the court, and it came for hearing before the District Judge on 10 February 2005. By then the arrears had crept over £5,000. That application was made by Ms Richardson in person. The Local Authority was represented by their solicitor. We have a transcript of what transpired before the District Judge, and it is necessary to recite some of the salient features of that hearing.

The judge was told that the arrears were over £5,000, having increased from the £2,000 at the time the order was made. The District Judge asked:

There was then discussion about a sum of £588, which the tenant was offering to pay. This was apparently the shortfall since the order made, it is said, in October. Again, it is not a matter that is totally clear to me. The tenant explained to the District Judge that she had received advice from what she called the debt solicitor. She explained that she was in employment, and explained:

The District Judge, in discussion with the solicitor, accepted that the offer amounted to an offer to pay £10 a week off the arrears. Ms Richardson explained her difficulties with the Child Support Agency's inability to extract maintenance from the father of her children. The District Judge was sympathetic. But she said this at page 43:

There was further discussion, and the judge added these comments:

It was the Local Authority that appealed that order. By their notice of appeal, they set out in the grounds their submission that the decision of the lower court on 10 February was unjust in the circumstances. They referred to the persistent failure to comply and the nine previous applications to suspend the warrant of eviction. They stated that a chronology was set out below, as indeed it was, and added that:

There was technically no proper application to admit fresh evidence, as probably there ought to have been. But a witness statement was indeed prepared and served, dated 16 March, from the team leader in the rent office, a Ms Cnudde. She said out a chronology of the court proceedings -- each and every one of them -- detailing the arrears and detailing from time to time substantial lump sums that were paid. I note by way of example: £2,500 in October 1997; £2,663 in 1999, being back-dated benefit; a further large payment of back-dated housing benefit in January 2001. She acknowledged that there were delays in the payment of housing benefit, which the Local Housing Department accepted and regretted, but pointed out that there were many periods when simply nothing at all was paid by the tenant. She attached to her witness statement copies of the relevant orders and applications, and the rent count going back certainly since 1995.

The case came before HHJ Oppenheimer. We have a transcript of that hearing. He dealt with permission to appeal and Mr Zimuto of counsel, then instructed as he is today for the tenant, agreed that it was at least arguable, and so permission to appeal was granted.

Mrs Ashley, who then appeared for the Local Authority, submitted that it was in the interests of justice to have a re-hearing. The judge asked why?:

The judge then invited the Local Authority to consider whether they would be prepared to pay the costs of the appeal, which was only necessary by virtue of their default. Mrs Ashley was prepared to take instructions, but submitted that it was not the Council that had lost the file; it was the court that did not have the papers in front of them. Judge Oppenheimer's reaction to that was characteristically terse:

In the event, Mrs Ashley indicated a willingness to pay costs thrown away. The judge then turned to Mr Zimuto and said:

The judge, however, appears to have continued the argument without looking at that actual affidavit, or witness statement, and Mr Zimuto had to confront his point that, as the judge put it:

So that was the exchange that took place. In his actual judgment, he dealt with the question in this way:

The first ground of appeal before us is that the judge was wrong to order a re-hearing. Mr Easton, who today appears for the Local Authority, says that the only justification in the interests of justice for a re-hearing was, as submitted to Judge Oppenheimer, the fact that the court file was missing. If that was the only basis for the perceived injustice, then it seems to me there are a number of difficulties which the Local Authority have to face. The first is that they made no protest about the fact that the court file was not before the District Judge as would have been expected. They did not seek an adjournment or make any enquiry. Secondly, they did not supplement the deficiency by producing their copies of relevant orders, or their explanation for what had happened. It is therefore perhaps a little unfair to complain of an injustice in the procedure in the court below when no protest had been made about it and no attempt made to remedy the alleged deficit.

But, moreover, and this is their second huge difficulty, Judge Oppenheimer does not appear to have accepted that argument. I have already read the passage that indicates that his initial reaction was that the absence of the court file was not a very good reason for a re-hearing and that he would proceed by way of review. His judgment indicates that it was the duty of the Borough to see that the relevant history was before the court in proper form. In the discussion that took place, it is quite apparent that he was accepting that it was a fault on the part of the Local Authority. Whether he was expecting too much of Local Authority Housing Managers to prepare a full bundle and a full chronology on a haphazard application, as sometimes they are, for the suspension of a warrant of execution is not to the point. The point is that the judge does not appear to have accepted that there was an injustice which justified the Local Authority seeking a re-hearing.

It is, in the end, very difficult to see precisely what injustice the judge did find had occurred or what interests of justice actually required this re-hearing. It is, after all, to be firmly accepted that a re-hearing is an exception to the general rule; that some injustice must have occurred, and a simple failure to put one's case before the first court is not ordinarily to be cured by a re-hearing. If fresh evidence is to be put in, permission is sought for it. There are the usual obstacles to calling fresh evidence that could have been made available to the court below, as this evidence could have been, and I am afraid that, one way or another, Judge Oppenheimer took his eye off CPR 52.11(1)(b), to which, in fairness to him, he was not specifically directed, although the opening remarks of the solicitor had been by way of reference to the justice of the case.

I am sympathetic to the judge for a second reason, namely that Mr Zimuto, whose advocacy was restrained, appeared at one moment to be accepting that, in principle, a re-hearing would prove acceptable. That emerges more clearly from the exchanges that followed the judgment when Mr Zimuto sought permission to appeal, and Judge Oppenheimer said this:

Mr Zimuto, I think, acknowledges today that he could have been more felicitous in his submissions to the judge, and should more accurately have sign-posted his true objection to a re-hearing, which can be discerned from his submissions, namely that he was not in a position to deal with the whole history of the case and explain why over many years there had been these accumulative failures by his client. He was not able to explain what misfortunes had cast her out of work, what difficulties there were in obtaining her housing benefit, and generally in explaining the panoply of disaster which alas so often afflicts litigants in this class of case.

So I have my sympathies for the judge, but I fear that I, for my part, can see no injustice in the way the case was handled below, and no injustice compelling a re-hearing before the circuit judge. For that reason, the judge erred and the main ground of appeal is made good.

The question then arises as to what this court should do in circumstances where the judge, having exercised his own discretion, came to these conclusions: that, to summaries it, it was a case where the arrears had risen inexorably, reaching what he called "a stupendous climax on 10 February 2005 when the arrears before the District Judge were £5,003.15".

He accepted that, since the District Judge's order, the tenant had observed its terms, had paid quite substantial monies off the arrears, that the District Judge was aware of the amount of arrears, the number of suspensions, and nonetheless granted a further suspension -- the tenant being in the "Last Chance Saloon". But, he said:

He considered that he had a simple discretion to exercise, conferred on him by section 85(2) of the Housing Act 1985, which is unfettered, and he said:

So, in the exercise of his discretion, he ordered the warrant of possession issue. We do not have to look closely at that in view of his error of principle in treating it as a re-hearing. But, that said, it does seem to me that the learned judge had failed to take into account the short witness statement of Ms Richardson, to which I made earlier reference. In that document, she explained how her employment had changed many times. She had been in and out of work. She was thoroughly confused about housing benefit. She went on to say:

The judge, furthermore, made no reference to her consulting the so-called debt solicitor in order to get her affairs in proper order.

It seems to me, therefore, that one can criticise Judge Oppenheimer for concentrating solely on the history, when essentially an application to suspend a warrant involves in addition, if not entirely -- certainly in addition -- a prospect of enquiry as to whether or not the payments can be maintained and some payments made off the arrears. I do not see his taking those factors into account may impugn the exercise of his discretion.

He went on to say:

I respectfully disagree.

For all those reasons, I would allow this appeal and restore the judgment of the District Judge.

LADY JUSTICE ARDEN: I agree with the judgment of my Lord, Ward LJ, and would add some short observations of my own.

First, the case which the judge had to consider turned on the exercise by the District Judge of her discretion under section 85 of the Housing Act 1985. There is a substantial difference between an appeal by way of a review of the order of the District Judge in these circumstances, and an appeal by way of re-hearing. If it is an appeal by way of review, then the function of the appellate court is limited to seeing whether the exercise of discretion was wrong in principle or went beyond the generous ambit within which disagreement is possible. As to the latter phrase, see re G v G [1985] AC 647 at 652.

CPR 52.11 provides:

The general rule about appeals is, as Brooke LJ said in Tanfern Limited v Cameron-McDonald [2002] 2 All ER 801, that every appeal from the lower court will be limited to a review of the decision of that court. For there to be a re-hearing, there must be some unusual factor, which leads the court to the conclusion that, in the words of CPR 52.11(1)(b):

There must be some unusual factor for at least two reasons. First, the appellant has already had one hearing and therefore it is not necessary in the interests of justice in the ordinary course for there to be another hearing. Second, if the original hearing was unjust or the conclusion of the court was wrong, the appellate court will allow the appeal under CPR 51.11(3). In all these cases a re-hearing would be inappropriate.

CPR 52.11(1)(b) makes it clear that the court must have regard to the circumstances of the particular case before it. That is one of the reasons why this court has not attempted to formulate criteria as to when the appellate court should decide to hold a re-hearing. Thus, in Audergon v La Baguette Limited [2002] EWCA Civ 10, Jonathan Parker LJ, with whom Pill LJ and Tuckey LJ agreed, held at paragraph 83:

There is a danger that the absence of the formulated criteria will be taken as a signal that the threshold test in CPR 52.11(1)(b) is relatively low and can be based on the appellate court's provisional view of the merits of the appeal. I would like to emphasise that the appellate court should not strive to bring the case within CPR 52.11(1)(b), even where it considers that to hold a re-hearing would be a sensible outcome. It is, I appreciate, sometimes difficult for a court which acts as a trial court for some purposes and an appellate court for other purposes always to keep its separate functions clear, but there are two distinct functions. When hearing an appeal, the court must scrupulously follow CPR 52.11(1), however well-intentioned the motive for a departure. CPR 52.11(1)(b) is simply an exception to the general rule, and it is not provided for the purpose of taking short cuts.

In any event, I agree with Ward LJ that, in the particular circumstances of this case, this is not a case which qualified under CPR 52.11(1)(b) for the reasons that he has given. In particular, the respondent had not objected to the District Judge deciding the case without having in front of her the whole court file.

The second point on which I would like to make short observations arises out of counsel's submissions to the judge, to which Ward LJ has referred. At page 151 of the appeal bundle, the transcript of the proceedings before the judge records counsel's submission that, if the judge was to proceed by way of re-hearing, there were two important pieces of evidence which are readily available, but that had only been addressed in very limited terms. Counsel said:

Shortly thereafter counsel went on:

Now, it is clear that counsel did not articulate the request for an adjournment. The transcript therefore discloses one of those awkward situations that can arise in the course of an oral hearing. There is in any such situation a danger of a misunderstanding between the advocate and the judge. The duty is of course placed on the advocate to make the advocate's position clear. But I also consider that, in this particular case, the judge failed fully to absorb what the advocate was saying. His response to the submissions which I have just read was:

As I see it, the judge was on notice that counsel was put in difficulties about the state of the evidence, and it seems to me that he should have clarified the position with counsel, and elicited whether an adjournment was sought; or alternatively whether counsel needed a short opportunity in which to take instructions so that the matter could proceed.

Finally, I agree with all that my Lord has said about the alternative exercise of discretion by the judge in the event that he had not had a re-hearing. In my judgment, the judge purported to apply a bright-line test to the exercise of discretion, and this discloses in itself an error of principle, because the exercise of discretion in this sort of case must be related to the individual circumstances of the case. For that purpose the judge had to consider the evidence as to the arrears and as to what the respondent to the appeal was going to do about them.

For all those reasons, I agree with the order that my Lord has proposed.