London Borough of Brent v Smart

LORD JUSTIC RIX: This is an appeal about new evidence. It is brought by Mr Mark Smart, who, since 1983, had a secure tenancy at 43 Lansbury Close, St Raphael's Estate, NW10 ("the flat") from the Mayor and Burgesses of the London Borough of Brent ("Brent") who are the respondents to this appeal.

In August 2000, in circumstances which I shall relate in greater detail hereafter, it came to the attention of Brent that Mr Smart may have sub-let his flat to a Miss Marjorie Thomas, and in due course proceedings for possession were brought, which were heard at trial by His Honour Judge Levy in March 2004. The judge found in favour of Brent's case and against Mr Smart's case and ordered the recovery of possession from Mr Smart.

The trial itself took place in unfortunate circumstances for Mr Smart, which I readily acknowledge. Very shortly before the trial was due to take place his legal funding was withdrawn. It appears that this was because he had failed to bring to the attention of the legal aid authorities the fact that he was at that time a director of a company, albeit, as it turned out on investigation, a non-trading company, so his directorship brought him no income whatsoever. It was Brent itself which brought to the attention of the legal aid authorities the fact of Mr Smart's directorship, and although when in due course, the matter having been investigated, Mr Smart's funding was reinstated, this came too late to assist him at trial. He therefore sought an adjournment of the trial, but the judge was unwilling to do more than allow him half a day's adjournment until 2 o'clock on the first day of trial and the trial took place over the latter part of that day and the next three days. This was undoubtedly an unfortunate matter for Mr Smart. The judge assisted him as best he could. Nevertheless, one can understand Mr Smart's concern at this turn of events. It provides part of the background to this appeal.

I have said at the beginning of this judgment that the appeal is about new evidence. It is, in effect, not suggested that there is any other ground of appeal. At a late stage of her submissions today, Miss Morwenna Macro, who appears on behalf of Mr Smart, has sought to reinstate a deleted ground of appeal to the effect that the judge had erred in law in not considering whether it was reasonable to make the possession order. On consideration, permission to amend her grounds of appeal was given by the court in the course of argument today. However, on further consideration of this restored ground, it has become clear that the judge essentially had to choose, as a result of the evidence before him, between two directly conflicting accounts of what had happened in relation to Miss Thompson being let into possession of the flat. Her case was that she took possession of the whole flat under a sublease from Mr Smart. Mr Smart's case was that he did not sub-let the flat to her at all, either in whole or in part, but that he had, out of pity, taken Miss Thompson and her young child into the flat, had made available to her one out of the two rooms in the flat, but then had found the situation uncomfortable after a failed relationship between the two and had demanded that she leave, which she refused to do. There was direct and unbridgeable conflict between the two cases before the judge. The judge had to choose between the two cases. He chose in favour of Miss Thompson, and in doing so he found that there had been a sub-letting of the whole of the flat. It is common ground, I think, that on that basis the secure tenancy on which Mr Smart relies was destroyed under section 93(2) of the Housing Act 1985. I will say nothing more about that ground of appeal and turn to the facts of this case and to the new evidence which Mr Smart seeks to bring to bear on it in his attempt to win a new trial.

I have already mentioned the two entirely separate accounts given by the two main witnesses at the trial. The judge summed up Miss Thomas' evidence, or his reception of it, at paragraph 30 of his judgment. He did it in this way:

As it is, the judge nowhere set out with great clarity what her evidence at trial was. He approached the matter rather by referring, at some considerable length in the case of both her account and Mr Smart's account, to lengthy statements on the one hand and a lengthy interview given by Mr Smart on the other hand which had been given to or taken by an officer of Brent by the name of Mr Knight, who was investigating as part of his duties the complaint which Miss Thomas had brought to him about her treatment at the hands of Mr Smart, of how he was trying to expel her from his flat and had already changed the locks a few days earlier.

In a situation where the witness statements of each of these two main witnesses was essentially consistent with those contemporaneous statements and interviews, one can well understand why the judge refers back to those contemporaneous documents. At any rate, as the structure of his judgment follows that way of accounting for the conflicting stories, it is necessary to look to those earlier parts of his judgment to find out what in fact was the account on each side.

Essentially, it was this. Miss Thomas said that she was in need of accommodation for her and her child. She found her way to an estate agent called Callams, where she met a Miss Ann Simmons. She noticed an advertisement in the window of the agency advertising the flat in question at a rent of £125 per week. Having failed to find a two bedroom flat, which would have been more to her preference, she was prepared to look at this one bedroom flat. When she made that known to Miss Simmons, Miss Simmons called Mr Smart, who turned up at the agency with the keys and followed in convoy to the flat to show it to Miss Thomas. Miss Thomas was happy to take it. She had already paid a deposit with the agency. The keys were handed over in these circumstances and in due course, by a document dated 2nd March 2000, a tenancy agreement was signed. This was a document which stated that it was between Callams Estates, the landlord, and Miss Thomas and was to run for six months from 3rd March 2000 at a rent of £125 per week payable every month in advance, the next payment to be made on 3rd April. It was signed by Miss Thomas and witnessed by Miss Simmons, because the signature of Miss Thomas was expressed by the document to be in the presence of Miss Simmons. Oddly enough, it was either not signed on behalf of Callams or the signature of Miss Simmons was intended to work both as a witness of Miss Thomas' signature and also as a signature for the landlord. At any rate, that was the letting agreement upon which Miss Thomas relied. She also relied upon receipts given to her and signed by Miss Simmons for the initial deposit and for the succeeding months rent for April and May.

There came a time in June and July when it was Miss Thomas' case that she handed the monthly amount, which was £540, directly to Mr Smart. That was her case and, in response to Mr Smart's case, she said that there was nothing at any time between her and Mr Smart by way of a relationship, that she had possession of the whole flat while she was there and that Mr Smart did not stay there, either throughout the period or at any time, although he did visit it from time to time and would knock when he came and had no key for it because he had given his keys to her.

On the other hand, Mr Smart's case was that he knew nothing whatsoever about the letting agreement of 2nd March 2000, that that indeed was a fraudulent document which Miss Thomas had at a late stage obtained by deceit out of the estate agency by using a friend of his called Mr Simpson to impersonate him at her request and upon her assurance that that was exactly what he wanted. He said that he had taken Miss Thomas and her child into his home out of their need and as an act of kindness, that they had had a relationship during the period while she was there at the flat, that the relationship had turned sour, that he tried to get her out of the flat, that she had kept on promising to go but had failed to go but in the end he had lost patience and changed the locks and that that led, at the very end of July, to the calling of the police and onwards to the denouement of her complaints to Brent and ultimately to these proceedings.

Mr Smart had prepared in support of that case a number of witness statements, the majority of which went to the issue as to whether he was to be seen coming and going from the flat as a tenant of it, but a smaller number of which went directly to the question of the tenancy agreement and the circumstances of the relationships of the protagonists within the flat. In particular, there was a witness statement of a Steven Simpson, who spoke to the question of his impersonation of Mr Smart in the estate agents. The statement said that he had mentioned this incident to Mr Smart only on about 24th February 2003. The statement is dated 5th March 2003. Mr Simpson, Mr Smart says, simply was not prepared to give evidence at the trial once he had heard that Mr Smart had lost his representation.

There was also a statement from Alicia Johnson, who was at that time Mr Smart's girlfriend. Her witness statement is in support of Mr Smart's case that the two of them had taken pity upon Miss Thomas' situation and that the deterioration in the relationship began when Miss Thomas and her daughter began to be rude to her and arguments ensued. She said in her statement, as did Mr Smart, that Miss Thomas had got the key from her. Finally, there was a statement from a Mr Coley, who said that he had helped Miss Thomas to take her possessions into the flat but also that he did not get the impression that this was a formal letting.

In the event, none of those three makers of witness statements gave evidence at the trial, nor apparently were their witness statements even referred to the judge.

I have set out the findings of the judge in relation to Miss Thomas. Essentially, he found that her evidence was truthful and he accepted it. So far as Mr Smart's evidence was concerned, and I have described what his essential case was at trial, the judge said this in summary at paragraph 31:

I turn now to the new evidence. Four new witness statements or affidavits have been put before the court from four potential witnesses, but the court has heard from only one of them, that is from Mr Christopher Rodney. Mr Rodney has given evidence supplementing his sworn affidavit of 23rd September 2004 to the effect that he was having an affair with Miss Thomas and that he had visited her at the flat a number of times, in evidence he said five, six or seven times, that he had always seen her in and heard from her that she was made to live in the front room, or what might be called the living room of the flat, and that there was another door to another room which was always closed, and indeed he went so far in his affidavit to say "locked", although in an earlier version of his evidence he had merely said "closed". He said that he knew that she was not renting the flat but was just staying there and using a bed in the living room. He said that he had stopped seeing her after three or four months. He said that she was plotting against Mark Smart, although in his affidavit he did not go into any details of that. He said that he also remembered her mentioning the name of Steven, which is relied upon as being a reference to Mr Steven Simpson, and in his evidence today he expanded upon that bald reference to the single name Steven to seek to give evidence along the lines of Mr Simpson's own witness statement to the effect that there was some plot to impersonate Mr Smart so as to get him into trouble over his tenancy. However, as I have said, the detail of that was not in the affidavit. He said that Mr Smart called him on his mobile telephone out of the blue in August 2004 to ask him if he knew about Miss Thomas and that as a result of that phone conversation he had given him the essence of his evidence about her. He said that a statement had been drawn up as a result of that phone conversation by Mr Smart's solicitor, to whom Mr Smart had obviously relayed the contents of their telephone conversation. He said that he had been prepared too casually, as he accepted in his evidence, to sign that statement with a statement of truth, even though he now accepted that certain things in that statement had not been said by him on the telephone, or, if said by him, had been said in relation to someone quite other than Miss Thomas, such as that she was going to "fuck him up" or that she had lied at court and had rung him up after the case to say that she had "fucked him up". None of that was repeated in his affidavit and he accepted in his evidence that he did not say it, at any rate of Miss Thomas.

Mr Smart gave evidence as to how he had got hold of Mr Rodney's telephone number. He had said in his affidavit that when he was in a music shop, towards the end of August of last year, he was "approached by a half stranger who told me that he knew a person who might be able to help me in relation to Marjorie Thomas and the evidence she gave to the court". In evidence he was asked about that and his evidence expanded, but also varied, from that account. In effect, in evidence he said that at this time, when he was close to being evicted from his flat, he was seeking help everywhere around and that he was having a conversation along these lines with the proprietor of the music shop, and indeed he gave evidence to the effect that this was a music shop which everyone in his community knew well and patronised, and indeed it would appear from that evidence that, even if the proprietor was not a friend of his, he was a man that he knew well and with whom he could have the kind of conversation that he said he was having with him. That evidence does not fit very happily with his affidavit account of him being approached by a "half stranger" with information to his advantage.

As I have said, Mr Rodney is the only new witness from whom the court has heard. There were two other witnesses which the court thought that they would be hearing from today. One was Lisa Brown, who had made an affidavit saying that she knew both Mr Smart and was a friend of Miss Thomas and could confirm that Miss Thomas was never renting the flat but only staying there as a guest of Mr Smart, sleeping in the front room while Mr Smart remained in the bedroom beyond. There was an affidavit from Miss Elesia Patterson very much to the same effect. She begins by saying that she confirms that she knows Mark Smart. In fact, it turned out today that Miss Patterson is a former wife of Mr Smart - something which he did not mention in his affidavit and which she does not mention in hers.

How did Mr Smart get on to this new evidence from Miss Brown and Miss Patterson? In his affidavit Mr Smart said that: "Another person approached me anonymously about the case and gave me the mobile telephone number for Lisa Brown, an old friend of Marjorie Thomas, who used to visit us in the flat". He said that it was Lisa Brown who gave him the mobile number of "another friend, Elesia Patterson", that was his former wife.

Mr Smart was asked about that evidence as well during his cross-examination today. In effect, he said that not only was Miss Patterson his former wife, although he claimed to have entirely lost touch with her over the years, but that Miss Brown, like her, used to be part of a whole crowd of people who used to visit his flat up to November 1999, when he said that he tried to turn his flat out of its then state as a sort of community centre into something more like a private home, but he said that they kept on visiting, which is how they got to know Miss Thomas in the year 2000.

I have to confess that none of that evidence from Mr Smart about the circumstances in which he came to obtain the affidavits of Mr Rodney, Miss Brown and Miss Patterson is at all impressive.

We have not heard today from Miss Brown or Miss Patterson. We have simply been told that Miss Brown has gone to Jamaica and is not available and Miss Patterson, although she was at one time willing to assist Mr Smart, was no longer willing to come to court to do so.

The fourth witness on whose evidence Mr Smart seeks to rely for the purposes of his appeal today is a Miss Kerrian Walters. She has made a witness statement which is dated only two days ago, 28th February 2005. Miss Walters did turn up to court this morning and there was some suggestion that she would be called on to give evidence straightaway, because the court was told that she was anxious to return to her child, who was being minded by her, Miss Walters', mother, who herself had to go elsewhere and therefore Miss Walters was anxious to get back to her child. In the event, the court did not think it was appropriate to begin with Miss Walters' evidence pending some enquiries about her being made by Brent, and so heard first of all from Mr Rodney. At some time during Mr Rodney's evidence, I am not quite sure when, Miss Walters left the court, apparently without giving any information to Mr Smart or his solicitors about what she was going to do or how she could be contacted, and all that is known is that, despite attempts to contact her on her mobile phone, that phone is switched off and she has remained uncontactable today, even though it is to be assumed that she clearly returned either to her own home where her mother was with her child, or perchance, if the child was with the mother, to her mother's home, so nothing further is known about that, although the court remained willing to hear from Miss Walters as long as this appeal was continuing prior to judgment.

Miss Walters' evidence, to judge from the witness statement, was of particular importance because at paragraph 6 of that she deals most explicitly of all the four witnesses who have made statements or affidavits with the question of the impersonation of Mr Smart. She says this at paragraph 6:

When Mr Smart, in his evidence today, was asked about how it was that this evidence came forward much later than the other three affidavits, his evidence was to the effect that he had got onto Miss Walters in the same way and at about the same time as he had got onto Miss Brown and Miss Patterson, but that the advice of his then solicitors had been not to over-egg the pudding, to the effect that the court would only be willing to listen to a certain number of witnesses on an appeal such as this and not to try his luck. Therefore, she had, as it were, been stood down and only been asked to make her witness statement at the last moment when it was clear that neither Miss Brown nor Miss Patterson would be available to Mr Smart today in court.

The difficulty with that account, so far as I am concerned, is that it entirely overlooks the importance of her evidence. I have already remarked on the very limited way in which in his affidavit Mr Rodney had simply referred to "Steven". It is Miss Walters who gives the most detailed and plainest evidence about the successful attempt, on her case, to impersonate Mr Smart and to seek to obtain a false tenancy agreement. It must have been obvious to Mr Smart, even in the absence of legal advice, and he was then in possession of legal advice, that that was, in effect, the most important of the new pieces of evidence. The fact that it did not therefore come forward with the rest of the evidence in September 2004 is, to my mind, very significant, and there has not been any satisfactory explanation as to why it has had to wait until this week to come forward. It may be that if Miss Walters had been able or willing to remain in court or to return to court in order to give her evidence, then the court would have learnt more about these matters. As it is, it only has the written material before it and the other explanations to which I have referred.

This is the new evidence upon which Mr Smart relies.

The principles relating to the admission of new evidence are not in doubt, it has been common ground between the parties. The basis principles are those which have long been laid down in the case of Ladd v Marshall [1954] 1 WLR 1489. Essentially, that case raises the three questions of asking whether the new evidence was unavailable at trial with the exercise of reasonable diligence, whether it would probably have an important influence on the result of the case and whether it was presumably to be believed and was apparently credible. In the current days of the CPR and the overriding objective it has been made clear in leading cases in recent years, such as Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 and Hamilton v Al Fayed, December 21st 2000 (unreported), that these principles are guidelines and that ultimately the court is influenced by the justice of the case and takes into account the overriding objective, the essence of which is itself justice. It has been made clear in such recent cases that where new evidence comes to light for the first time credibly to suggest that witnesses at trial may have perjured themselves or relied upon forged documents, it may well be in the interests of justice for there to be a re-trial incorporating the new evidence.

This case, however, it seems to me, is unlike such a case of entirely new evidence raising a prima facie credible case of perjury or forgery. In this case the issue already at trial was that Miss Thomas was perjuring herself and conducting a lying and wicked campaign against Mr Smart, motivated by the "scorned woman syndrome", which was Mr Smart's case. It was already his case at trial made by him, even in the absence of Mr Simpson, that the letting agreement upon which she relied was a dishonestly obtained and fraudulent document. In these circumstances, where the judge who heard the witness accepted Miss Thomas' account and rejected Mr Smart's account, it is important, in my judgment, that the court should look very closely at the guidelines and the way in which they operate.

Taking, therefore, the first of them and asking the question whether this new evidence was unavailable to Mr Smart at trial despite the exercise of reasonable diligence, it seems to me that Mr Smart's new evidence does not meet this test. In essence, what this test requires there to be is a satisfactory explanation as to why the evidence which is sought to be put forward as new evidence had not been obtainable before. As I have already remarked, Mr Smart knew what his case was: a case of falsehood and fraud. He knew who his friends had been who had visited him and Miss Thomas at his flat. He knew, of course, of his former wife. He knew of his former friend, Miss Brown, and Miss Walters. He may not have known of Mr Rodney, I do not know, but the explanation which he has given of how he came by Mr Rodney's telephone number is, to my mind, wholly unsatisfactory. So, in my judgment, Mr Smart's new evidence does not pass that first hurdle.

The second question raised by Ladd v Marshall, whether the new evidence would probably have an important influence on the case, I can deal with very quickly. Were it the case that the new evidence was apparently credible, then, since it goes to the central issue between the protagonists at trial, it would probably have an important influence on the case. Whether it would be decisive would be exactly the question which would have to be decided at a re-trial were the Ladd v Marshall tests to be satisfactorily passed or a new trial be necessary in the overall interests of justice.

I come then to the question of whether the new evidence is apparently credible. It seems to me that for these purposes I should pay the greatest attention to the one witness from whom we have heard, namely Mr Rodney. It seems to me that Mr Rodney's evidence is not apparently credible. He did not strike me as a responsible witness of truth. He was prepared to sign as truthful his original witness statement, which was put before the court last September in an attempt to obtain a stay of the execution of the warrant of possession, but he told the court that it was not accurate. He also gave explanations as to how those inaccuracies got into the witness statement which I found very hard to understand. He never mentioned Miss Thomas' child at any point in his evidence or in any of the documents which have been brought into being as a result of his intervention. This is a matter which one would have expected him to mention, especially as he makes a point about the bedroom, which in the witness statement was "closed" and in his later affidavit has been improved to "locked". This is important because the fact that Miss Thomas had a child could easily explain why it was that she was living in the living room whereas someone else, possibly the child, was behind the bedroom door.

The next factor which struck me was the mere reference to "Steve" in the affidavit, which was developed in his oral evidence into a proper link with the case of an imposter obtaining a false letting agreement. Moreover, the whole story of the obtaining of a false letting agreement is, to my mind, an incredible story by itself.

Finally, Mr Rodney said that he had visited Miss Thomas in pursuance of his affair with her to the extent of some five or six or seven visits and yet he had never seen Mr Smart there. Indeed, so far as Mr Smart is concerned, although his case was that he was living at the flat with Miss Thomas, he knew nothing about this affair whatsoever until he heard of it from the music shop proprietor.

In my judgment, none of this evidence is apparently credible and therefore it seems to me that Mr Rodney's evidence fails on both the first and third of the Ladd v Marshall tests and I can see no other factors in the interests of justice or in the aspects of the overriding principle found in CPR Part 1 which should lead the court to say that evidence such as this requires a new trial.

Finally, so far as the evidence of Miss Brown and Miss Patterson is concerned, they are extremely vague and it seems to me that, in their absence, they have no value whatsoever. Miss Walters' witness statement is in a different category because of its important connection with the Simpson evidence relating to his being used as an imposter for the purpose of obtaining the letting agreement. However, I have already given earlier in this judgment my reasons for thinking that the manner in which this evidence has come forward at the last moment is very unsatisfactory. It is true that Miss Walters came to court this morning. If she had given evidence here today, then her evidence would have had to have been judged on the basis of the answers that she gave to questions while she was in the witness box. As it is, having only her witness statement before us in the circumstances which I have mentioned, and in the light of her unwillingness or inability, whichever it is, to remain or return to court, and the fact that since leaving court she has not contacted Mr Smart or those instructing him today and we know nothing further about her position, it seems to me that her evidence also must be regarded as failing the apparently credible test.

Therefore, for all these reasons, it seems to me that the evidence which Mr Smart seeks to rely upon on this appeal does not meet the Ladd v Marshall guidelines. It is not otherwise in the interests of justice that there should be a four day re-trial of this issue.

Although, to return to the beginning again, I completely understand Mr Smart's concern about the turn which his trial took when he lost his legal representation, nevertheless it seems to me that the essential difference between his case and Miss Thomas' case was so stark and so bleak that during the four days of his trial he had every opportunity to put his case before the judge in order to persuade the judge that it was he who was telling the truth and Miss Thomas who was a liar. He has had a further ample opportunity in the course of this appeal to bring to the court's attention new witnesses to support the case that was then rejected. For all the reasons contained in my judgment, it seems to me that he has failed to persuade the court that a re-trial should be ordered in the light of this new evidence and therefore, for myself, I would dismiss this appeal.

LORD JUSTICE NEUBERGER: Rix LJ has set out very fully the history of this matter and the arguments that have been put before us. I agree that this appeal should be dismissed and also agree with the reasons he has given.

For what it is worth, for the benefit of Mr Smart, I would like to make it clear that, at any rate to my mind, this appeal would have been dismissed even if Miss Walters had attended and been cross-examined. It seems to me that, even if she had appeared to be a credible witness on cross-examination, the application, insofar as it was based on her evidence, would have failed on the first of the three hurdles identified by my Lord as the Ladd v Marshall test. I would therefore dismiss this appeal.

LORD JUSTICE AULD: For the reasons given by my Lords, I also agree that the appeal should be dismissed. It is therefore dismissed.