London Borough of Southwark v Kofi-Adu

This is an appeal by the London Borough of Southwark (“Southwark”), the claimant in the action, against an order made by HHJ Cotran, sitting in the Shoreditch County Court, on 20 December 2004. By his order the judge dismissed Southwark’s claim against Ms Kofi-Adu, the respondent to the appeal, for possession of a one-bedroom flat at 12 Livingstone House, Comber Estate, Crown Street, London SE5, of which she is a secure tenant of Southwark by virtue of a tenancy agreement dated 27 June 2001.

Southwark seeks possession of the flat on Grounds 1 and 2 in Part 1 of Schedule 2 to the Housing Act 1985 (as amended by the Housing Act 1996).

Under Ground 1, possession may be ordered where:

“Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed.”

Under Ground 2, possession may be ordered where (so far as material):

“The tenant or a person residing in …. the dwelling-house … has been guilty of conduct causing … a nuisance or annoyance to a person residing … in the locality.”

Section 84(2) of the Housing Act 1985 provides as follows (so far as material):

“(1)

The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.

(2)

The court shall not make an order for possession –

(a)

on the grounds set out in Part 1 of that Schedule (grounds 1 to 8) unless it considers it reasonable to make the order ….”

In support of its case under Ground 1, Southwark relies on the fact that since shortly after the grant of the tenancy in June 2001 the rent, which is payable weekly in advance, has been continuously in arrear: indeed, the rent account has never been in credit. At the commencement of the possession action, in September 2003, the arrears amounted to £1021.88, and by the start of the trial (on 2 December 2004) they had increased to £2,981.45. In addition to its claim for a possession order, Southwark seeks a money judgment in respect of the arrears.

By her Defence, Ms Kofi-Adu put Southwark to proof of the existence and amount of any rent arrears, but at trial the figures put forward by Southwark were not disputed.

Southwark also claims possession under Ground 1 on the basis that Ms Kofi-Adu has breached clause 8 of the tenancy agreement in that she has on numerous occasions since about August 2001 caused nuisance, annoyance or offence to other tenants, their families, lodgers and visitors, by (and I quote from paragraph 4.1 of the Schedule of Entitlement to Possession annexed to Southwark’s Particulars of Claim):

“Banging, hammering and objects being dropped; children running around the premises; flooding your neighbour’s premises.”

The “neighbour” there referred to is 77-year old Mrs Mary Aitcheson, another secure tenant of Southwark who lives alone in number 8 Livingstone House. Number 8 is immediately below the living room and kitchen of Ms Kofi-Adu’s flat at number 12. The Schedule goes on to give particulars of numerous occasions of such alleged nuisance and annoyance.

Those allegations are also relied on by Southwark as founding its claim to possession under Ground 2. Southwark’s case under Ground 2 also extends to Ms Kofi-Adu’s partner, Mr Osei. He moved into number 12 in December 2003, but before that he was a frequent visitor at number 12. He is the father of Ms Kofi-Adu’s three young children.

As to the requirement of reasonableness imposed by section 84(2) (above), paragraph 5 of Southwark’s Schedule pleads as follows:

“Given the rent arrears and serious and frequent complaints of anti-social behaviour, an immediate order for possession would be both reasonable and proportionate.”

By her Amended Defence and Part 20 Claim Miss Kofi-Adu denies any breach of clause 8 of the tenancy agreement. She further denies that it would be reasonable to make a possession order, pleading (among other things) that since moving into number 12 she has tried to live as quietly as she could; and that she has willingly participated in attempts to resolve the dispute with Mrs Aitcheson by mediation, but that such attempts have failed due to Mrs Aitcheson’s refusal to cooperate. She also relies on her rights under Article 8 of the European Convention on Human Rights.

By her Part 20 Claim Ms Kofi-Adu alleges that Southwark has failed to comply with its statutory obligation to keep number 12 in proper repair, specifying (among other things) leaking radiators. She seeks an order for specific performance to remedy the defects in repair, plus damages limited to £5,000.

So the issues for decision at trial were:

Issues 1 and 2 were pure issues of fact. As to issue 3 (reasonableness):

“the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing … in … a broad, commonsense way, as a man of the world, and come to a conclusion giving such weight as he thinks right to the various factors in the situation” (per Lord Greene MR in Cumming v. Danson [1942] 2 All ER 653 at 655E-G).

Issue 4 raised a pure issue of fact as to the state of repair of number 12 (the repairing obligation of Southwark not being in dispute).

Given that at trial both parties were represented by experienced counsel, one could be forgiven for supposing not only that those issues were susceptible of resolution at a relatively short hearing, but also that the prospects of a successful appeal against the judge’s decisions on those issues would be remote. However, as matters have turned out such a supposition would have proved false in both those respects.

The trial itself was initially estimated to last one and a half days: a generous enough estimate, one would think (indeed, the judge himself thought so). In the event, and excluding delivery of judgment (which took place on 20 December 2004), it extended over a further two court days. It started in the afternoon of 2 December 2004 and continued on 6, 9 and 17 December 2004, generating a transcript which exceeds 800 pages. On numerous occasions throughout the trial the judge expressed concern at the time the trial was taking. However, it is a regrettable fact that the judge’s conduct of the trial was the main reason why it took as long as it did. The transcript reveals a constant stream of interruptions by the judge throughout the trial, including sometimes lengthy passages of interrogation of the witnesses, both during examination-in-chief and during cross-examination. We shall have more to say about the judge’s conduct of the trial later in this judgment.

By his judgment the judge accepted Southwark’s figures as to rent arrears, but subject to a finding that Ms Kofi-Adu would be entitled to housing benefit as from May 2004 (when payments of housing benefit were suspended); and that the effect of that entitlement would be to reduce the rent arrears to £1,000 or thereabouts. He substantially rejected Mrs Aitcheson’s evidence in support of the allegations of nuisance and annoyance, and dismissed Southwark’s claim based on those allegations. He went on to hold that, in the light of his findings, it would be most unreasonable to make an outright order for possession. On Miss Kofi-Adu’s Part 20 Claim he found that Southwark was in breach of its repairing obligations in that there were leaking radiators in her flat.

By his order, the judge dismissed Southwark’s claim for possession and adjourned the claim for a money judgment to be determined by a district judge (presumably so that Ms Kofi-Adu’s entitlement to housing benefit, and hence the true amount of the rent arrears, could be quantified). On Miss Kofi-Adu’s Part 20 claim he ordered Southwark to repair the leaking radiators. Subject to that, he dismissed the Part 20 claim (that is to say, he declined to award damages).

Southwark issued an appellant’s notice seeking permission to appeal, and on 27 May 2005 Longmore LJ granted permission on the papers. Miss Kofi-Adu has issued a respondent’s notice inviting this court to uphold the judge’s judgment on additional grounds.

So the position has now been reached where, following a lengthy trial, the case is now in the Court of Appeal. In a case of this kind, involving straightforward fact-based issues, that in itself seems to us to be a regrettable state of affairs.

The background facts can be shortly stated.

We begin with the facts relating to arrears of rent.

Number 12 Livingstone House is on the third and fourth floors of a five-storey block, built in about the 1930s. The living room and kitchen of number 12 are on the third floor (immediately above Mrs Aitcheson’s flat); the bedroom and bathroom are on the fourth floor.

By clause 6(1) of her tenancy agreement Ms Kofi-Adu agreed to take a tenancy of number 12 and to pay the stipulated rent and other charges weekly in advance. The initial total weekly sum (including charges) was £64.38.

Although the tenancy agreement was dated 27 June 2001, Ms Kofi-Adu did not move into number 12 until about July 2001. At the time she moved in, Ms Kofi-Adu was aged 18, with one child, Abigail, who was then about 10 months old. She was expecting another child (Jonathan) who was born in November 2001. She gave birth to a third child, Amber, in May 2004. As already noted, Mr Osei is father of her three children.

Shortly after moving into number 12 Ms Kofi-Adu applied for housing benefit. Her application was accepted, and payment of housing benefit commenced on 10 August 2001. On that date, the arrears on the rent account stood at £238.46. Housing benefit remained in payment until June 2003, when it was suspended while further inquiries were conducted by Southwark as to Ms Kofi-Adu’s entitlement to such benefit. The arrears had by then increased to £395. The inquiries were resolved in Miss Kofi-Adu’s favour, and a back-dated payment of housing benefit was credited to the rent account on 27 February 2004 in the sum of £1506.60. The effect of that payment was to reduce the arrears to £838.04.

On 21 September 2001 Ms Kofi-Adu had a meeting with a Housing Officer, Ms Hazelwood, at which she entered into a written agreement to repay the arrears at the rate of £2.70 per week. On 25 September 2001 Ms Hazelwood wrote to Ms Kofi-Adu confirming the terms of the agreement and pointing out that failure to keep up the weekly payments of £2.70 might lead to an application by Southwark for a possession order. From 26 September 2001 a sum of £10.98 was deducted from her weekly income support entitlement, representing water heating charges of £8.28 and £2.70 on account of arrears of rent (which by then amounted to £277.16). These weekly deductions continued until 15 November 2001 (when the arrears were £258.92), but on that date they ceased. They resumed again on 15 July 2002 and continued thereafter until May 2004 when Miss Kofi-Adu’s housing benefit was suspended.

The agreement dated 21 September 2001 was the only agreement made between Southwark and Miss Kofi-Adu about repayment of the arrears; no further agreements were made or attempted.

On 11 May 2004 Southwark wrote to Miss Kofi-Adu saying that a question had arisen as to her entitlement to housing benefit, that more information was needed as to her income, and that her housing benefit was suspended until the required information was provided. In evidence, Ms Kofi-Adu maintained that she duly supplied the required information to Southwark, but Southwark maintains that it never received it. At all events, in June 2004 a further application for housing benefit was made. This further application was in the name of Mr Osei, but was also signed by Miss Kofi-Adu. On 10 June 2004 Southwark wrote to Miss Kofi-Adu referring to the latest application and asking for information as to Mr Osei’s self-employed earnings.

On 13 July 2004 Southwark wrote again to Ms Kofi-Adu advising her that as the requested information as to Mr Osei’s earnings had not been received the application had been “discarded”. The letter continued:

“If you still wish to make a claim for Benefit, you must complete a new application form and supply all the supporting documentation. Please note that any benefit will commence from the Monday following receipt of your new application.”

Ms Kofi-Adu denies having received the letters dated 10 June and 13 July 2004.

As at the commencement of the trial (2 December 2004) no new application for housing benefit had been made, nor was there any evidence that Ms Kofi-Adu had at any stage inquired of Southwark whether the further information which (according to her evidence) she had supplied in response to Southwark’s letter dated 11 May 2004 had satisfied Southwark as to her continuing entitlement to housing benefit. In the circumstances it is hardly surprising that as at 2 December 2004 it was Southwark’s understanding that there were no outstanding issues as to Ms Kofi-Adu’s possible entitlement to housing benefit.

As noted earlier, as at the commencement of proceedings the rent arrears amounted to £1,021.88. By the start of the trial they had increased to £2,981.45.

We turn next to the allegations of nuisance and annoyance. By clause 8(2) of the tenancy agreement Ms Kofi-Adu agreed not to cause nuisance, annoyance or offence to any other tenant or their family, lodgers or visitors.

In August 2001 (that is to say, soon after Ms Kofi-Adu moved into number 12) Mrs Aitcheson knocked on Ms Kofi-Adu’s door to complain about a hammering noise which she said had come from number 12. Mr Osei spoke to Mrs Aitcheson on that occasion, explaining that he had been doing some DIY work to the floor in number 12. Mrs Aitcheson subsequently complained to the housing officer at Southwark that Mr Osei had been abusive and had slammed the door on her. Thereafter a large number of complaints were made by Mrs Aitcheson to Southwark about noises from number 12, including hammering, banging and the noise of children running about. She was interviewed a number of times by housing officers, and was advised to keep a diary of the incidents of which she complained on sheets which Southwark provided for the purpose. At trial, Mr Aitcheson produced in evidence a large number of these diary sheets, which she had completed in manuscript.

On 12 February 2002, in an attempt at mediation, a meeting took place between Mrs Aitcheson, Miss Kofi-Adu and Mr Osei in the presence of a housing officer, Ms Stella Cameron. According to Ms Cameron the meeting seemed to end well, and the parties shook hands.

However, Mrs Aitcheson subsequently complained to her local councillor, Mr Tony Ritchie, that during the meeting Mr Osei had threatened her. On 6 August 2002 Cllr. Ritchie wrote to Mr Mal Davies (Southwark’s neighbourhood housing manager) asking him to investigate the matter. Mr Davies replied on 19 August 2002 saying that Mrs Aitcheson had been interviewed a number of times by Ms Cameron about her complaints of nuisance, and that at the meeting on 12 February 2002 “no threats to Mrs Aitcheson were witnessed by my staff”.

On 14 August 2002 Ms Cameron visited Mrs Aitcheson. During the visit, according to Ms Cameron’s records, the only complaint of noise which Mrs Aitcheson made concerned the noise of children running about in number 12. Mrs Aitcheson was advised to call the Southwark noise team, but it does not appear that she ever did so. Ms Cameron’s note of the visit records that Mrs Aitcheson made a racist remark to her as she was leaving.

On 19 September 2002 the parties attended a further mediation meeting at Southwark Mediation Centre. At that meeting, it was agreed that all incidents which had happened in the past should stay in the past and that a line should be drawn under them.

Accordingly to Mrs Aitcheson, in August and December 2002 water came through the ceiling of her flat (i.e. from Ms Kofi-Adu’s flat), causing flooding. She says that this was repeated on a number occasions during 2003. Mr Clifford Armstrong, who had taken over from Ms Hazelwood as housing officer at Southwark in January 2003, visited the premises on 24 January 2003. His evidence was that on that occasion Miss Kofi-Adu had agreed that her washing machine had caused the most recent incident of flooding earlier that month. In August 2003 a building inspector reported that Ms Kofi-Adu’s washing machine was the cause of the flooding.

In the meantime, the dispute which had arisen between Mrs Aitcheson and Miss Kofi-Adu was referred to the Southwark Anti-Social Behaviour Unit (SABU). On 28 April 2003 Ms Suzanne Johnson, an officer of SABU, wrote to Ms Kofi-Adu a letter headed ‘Without Prejudice’, in which she referred to Ms Kofi-Adu’s obligations under paragraph 8 of her tenancy agreement. The letter concluded:

“We are in the process of passing the case to our solicitors for legal advice and to institute proceedings.”

According to Ms Kofi-Adu, she telephoned SABU on 6 May 2003 and spoke to Ms Johnson’s superior, saying that she did not understand why the case had been referred to SABU because she felt she had done nothing wrong. She admitted that her washing machine was the cause of one of the floods, but said that she felt sorry about that, and that Mrs Aitcheson was victimising her.

On 22 May 2003 Ms Johnson visited Ms Kofi-Adu and Mr Osei. Ms Kofi-Adu complained to Ms Johnson that Mrs Aitcheson had subjected her to racial abuse and harassment. Ms Johnson said she would investigate this further, but in the event (as the judge found) she did not do so.

Following further complaints by Mrs Aitcheson of flooding in her flat, Southwark referred the matter to its solicitors. A Notice of Seeking Possession was served on 18 June 2003 stating that Southwark intended to apply for possession on Ground 1. A second notice was served on 22 August 2003 specifying both Ground 1 and Ground 2. Proceedings were commenced in September 2003.

At about that time Ms Kofi-Adu enrolled in a full-time further education course on Childcare Education at Lewisham College, and her two children started going to nursery school. She continued as a full-time student until April 2004 when she was granted maternity leave (her third child, Amber, being born in May 2004). In the meantime, in December 2003 Mr Osei moved into number 12 to live with her and their children.

During the hearing of the appeal, Miss Bhogal (for Southwark) provided us with copies of a printout of the rent account for the period from 12 April 2002 to 6 February 2006. Miss Cafferkey (for Ms Kofi-Adu), having asked for and been granted an opportunity to consider the printout, did not dispute its accuracy. The printout shows that since the commencement of the trial (when the arrears amounted to £2,981.45) only £900 has been paid into the account, presumably by Ms Kofi-Adu or Mr Osei. Miss Cafferkey informed us that in May 2005 Ms Kofi-Adu made a renewed application for housing benefit, but it is common ground that no further payments of housing benefit have been made. As at 6 February 2006 the arrears stood at £6,676.88.

At the start of the trial Miss Bhogal (for Southwark) informed the judge that Ms Kofi-Adu had that morning asserted that she had an outstanding claim for housing benefit. This had come as a surprise to Miss Bhogal and those instructing her, who had (as noted earlier) understood that there were no outstanding issues as to housing benefit. Accordingly, with the agreement of Miss Cafferkey, Miss Bhogal applied for the trial to be adjourned so that the position could be investigated. Miss Bhogal also asked for time to investigate whether further attempts at mediation had been made.

The judge declined to adjourn the trial. In the course of Miss Bhogal’s submissions in support of the application for an adjournment he described the arrears of rent as a “piffling matter” and indicated that the success or otherwise of Southwark’s possession claim would depend on its ability to prove nuisance and unreasonableness (Day 1, transcript p.6B-C). In paragraph 6 of the transcript of his ruling on the adjournment application the judge observed that, so far as housing benefit was concerned, it would be an easy matter for Southwark to find out the true situation by inquiring of the Housing Benefit Office.

The trial accordingly proceeded, and Miss Bhogal attempted to open the case to the judge. Her opening was, however, completely disrupted by a relentless barrage of interruptions by the judge.

Evidence was then called. Before the judge were witness statements by Mr Armstrong, Miss Johnson, Mrs Aitcheson, Ms Kofi-Adu and Mr Osei. They gave oral evidence based upon their witness statements, and were cross-examined. Mr Armstrong also provided a second witness statement, in circumstances which we describe below.

The first witness was Mrs Aitcheson. After a few introductory questions by Miss Bhogal, the judge effectively took over Mrs Aitcheson’s examination-in-chief, pursuing his own lines of questioning. On occasion his questioning was somewhat less than neutral (to put it no higher). For example, Mrs Aitcheson gave evidence that between August and December 2001 Mr Osei was on night work as a security man, with the consequence that he and Ms Kofi-Adu would sleep during the day and Ms Kofi-Adu would move around in the living area and kitchen during the night while he was at work. The following interchange then occurred (Day 1, second transcript pp.91G-92C):

“JUDGE: What do you care if they sleep there all day?

WITNESS: Well, if a partner is working all night, then she stays up all night when he’s gone out.

JUDGE: How do you know that?

WITNESS: Because I can hear over my head, your Honour.

JUDGE: Well, you can hear noise, but you are assuming what is going on upstairs.

WITNESS: Well, there’s only two people there, her and her little girl.

JUDGE: All right. Anyway, did anything happen?

WITNESS: No.

JUDGE: No.

WITNESS: I just reported, like …

JUDGE: Can we go to December now?”

At that point Miss Bhogal intervened, pointing out to the judge that there were a number of complaints about noise between August and December 2003. The following interchange then occurred (Day 1, second transcript, p.91D-F):

“JUDGE: I know, I am testing them. But you try, you know I don’t want to go through each one.

COUNSEL: Well, your Honour, perhaps testing them is for my learned friend in due course.

JUDGE: I am testing the general feel of the place after the first altercation.

COUNSEL: Your Honour, I would simply like to complete my examination-in-chief and then hand over to my learned friend.

JUDGE: Well, you ask the questions.”

Miss Bhogal then attempted to ask Mrs Aitcheson about the allegations of flooding, by reference to a plan of Mrs Aitcheson’s flat. However, the judge soon took over the questioning once again.

After questioning Mrs Aitcheson about her diary sheets, the judge was about to return to the allegations of flooding when Miss Cafferkey intervened to remind the judge that she would be cross-examining Mrs Aitcheson about those allegations. The judge, having confirmed that Miss Bhogal had no further questions in chief, accordingly invited Miss Cafferkey to proceed with her cross-examination.

Throughout Miss Cafferkey’s cross-examination of Mrs Aitcheson the judge continued to intervene with his own questions, to such an extent that Mrs Aitcheson could be forgiven for feeling that she was simultaneously facing two cross-examiners: counsel and the judge. Much of the cross-examination was directed at Mrs Aitcheson’s diary sheets, which Miss Cafferkey suggested were unreliable. Miss Cafferkey also pointed to inconsistencies between Mrs Aitcheson’s evidence and Southwark’s repair records.

Miss Bhogal’s next witness was Ms Johnson. She gave her evidence on the second day of the trial. Once again, the judge effectively took complete control of Ms Johnson’s examination-in-chief, and throughout her cross-examination he intervened constantly with his own questions.

Miss Bhogal next called Mr Armstrong. At the start of the second day of the trial the judge had indicated to Miss Bhogal in no uncertain terms that he wished to be provided with a further witness statement from Southwark clarifying the position in relation to housing benefit. Mr Armstrong had accordingly prepared a second witness statement during the short adjournment, before giving his oral evidence.

In his second witness statement, Mr Armstrong reported the results of own investigations, and exhibited copies of Southwark’s letters to Ms Kofi-Adu dated 11 May 2004, 10 June 2004 and 13 July 2004 (referred to in paragraphs 31 and 32 above). In paragraph 7 of his second witness statement Mr Armstrong confirmed that so far as Southwark was concerned there were no outstanding housing benefit issues relating to Ms Kofi-Adu’s rent account.

In examination-in-chief, Miss Bhogal asked Mr Armstrong to deal with the contents of his second witness statement, and the letters exhibited to it. Mr Armstrong told the judge that he had made inquiries and that there was no outstanding claim for housing benefit on Ms Kofi-Adu’s rent account. The judge plainly had difficulty in accepting that evidence, observing that a claim had been made by Mr Osei in June 2004. In particular, he was not satisfied that a claim for housing benefit could be ‘discarded’. Moreover, he was puzzled as to why correspondence concerning Mr Osei’s claim should have been addressed to Ms Kofi-Adu. When Mr Armstrong tried to explain to the judge why that had occurred, the following interchange occurred (Day 2, transcript pp.81G-82D):

“JUDGE: … So if hers is suspended to await some information requested in the May letter and his, although addressed to her, is ‘I will contact you in six months …’

WITNESS: Your Honour, if I may …

JUDGE: “…‘because you are self-employed’.

WITNESS: Yes, your Honour, if I may, the reason that the letters are addressed to Ms Kofi-Adu …

JUDGE: You may nothing, because you knew nothing about it until you made this new statement and you give me three letters with an explanation. I don’t know who gave it to you but you knew nothing about it before that.

COUNSEL: Your Honour, the court has specifically requested this information and I do ask that Mr Armstrong be permitted …

JUDGE: The court has requested the full story, you know that.

COUNSEL: Your Honour, yes, and …

JUDGE: I have three letters that now tell me for the first time that the second letter is in respect of his application.

COUNSEL (to the witness): Mr Armstrong, are you able to explain to the court why this letter [the letter dated 13 July 2004] is addressed to Ms Kofi-Adu?

WITNESS: Yes. Housing benefits and council tax benefits apply to the tenant not the tenant’s partner. As the claim also included Ms Kofi-Adu’s signature, it was … made on behalf of the household.”

Later in Mr Armstrong’s examination-in-chief, when Miss Bhogal asked him (Day 2, transcript p.86A-B) whether there were outstanding issues in relation to housing benefit, the judge intervened to say that he did not think that Mr Armstrong could answer that question. However, Mr Armstrong explained that he had accessed Southwark’s electronic database and that the database showed nothing currently outstanding so far as housing benefit was concerned.

The examination-in-chief then turned to the allegations of nuisance, and (as with the previous witnesses) the judge effectively conducted the questioning himself. In the course of her cross-examination of Mr Armstrong, Miss Cafferkey put it to him that his knowledge of the attempts at mediation was second-hand, being derived from his predecessor, Ms Cameron. Mr Armstrong accepted that, saying: “It’s always second-hand, as far as mediation is concerned”. At that point the judge intervened, and the following interchange took place (Day 2, transcript p.119D-F):

“JUDGE: Ms Cameron, is it, your predecessor?

WITNESS: Ms Cameron.

JUDGE: She interviewed them?

WITNESS: Yes, your Honour.

JUDGE: Live from the horse’s mouth. And it was disregarded completely. So, really, you as the successor absolutely disregarded what was said by the other side in interview with your predecessor. You completely brushed it aside because you assumed from the word go that the claimant – not the claimant, Mrs Aitcheson – is right and her version is right and her complaints are valid and the other side have no answer.

WITNESS: I don’t exactly believe that to be true, your Honour, because when I …

JUDGE: Well it is true, reflected by these proceedings.

WITNESS: I referred …

JUDGE: … otherwise we wouldn’t be here.

WITNESS: I referred the matter over to SABU to investigate this case.”

The judge went on to press Mr Armstrong about Southwark’s attitude towards moving Ms Kofi-Adu to other premises. In that connection, the following interchange occurred (Day 2, transcript p.120E-H):

“JUDGE: So what if she tells you she wants to move now? Will you move her?

WITNESS: No, your Honour.

JUDGE: It’s a crowded place, on any view.

WITNESS: We won’t move her, your Honour. On the grounds of rent arrears she won’t be moved …

JUDGE: Why not?

WITNESS: She is in rent arrears.

JUDGE: What?

WITNESS: It is Southwark’s policy not to move any person …

JUDGE: I am not talking about policy, I am talking about this case. These are people who have been at loggerheads, to put it neutrally.

WITNESS: Indeed, your Honour.

JUDGE: Since she came in.

WITNESS: Yes.

JUDGE: If there is fault on both sides why can’t you move her to a place which is not overcrowded? Never mind policy, is there not common sense?

WITNESS: We are not permitted, your Honour. … We don’t move anybody in rent arrears for more than four weeks.

JUDGE: If she paid you?

WITNESS: If she paid us she would have to go on the housing waiting list, along with …

JUDGE: And wait again?

WITNESS: Indeed, your Honour.

JUDGE: And her previous application you forget about?

WITNESS: We haven’t had it back, your Honour. She has no application outstanding at the moment.”

At the conclusion of Mr Armstrong’s evidence, Miss Bhogal closed her case and the court adjourned for the day.

When the trial resumed on Day 3, Miss Cafferkey called Ms Kofi-Adu. Once again, the examination-in-chief had not proceeded far before the judge effectively took over. In the course of her examination-in-chief Ms Kofi-Adu said that before she moved into her flat in July 2001 Mr Osei had done some DIY work in the flat, including wallpapering and carrying out work to the floor. Mrs Aitcheson’s diary sheets were then put to her in considerable detail, and Miss Kofi-Adu denied all the allegations of excessive noise emanating from her flat. When questioned by Miss Cafferkey about Mrs Aitcheson’s allegations of flooding caused by her washing machine, Ms Kofi-Adu told the judge that she had ceased using the washing machine in December 2002 and thereafter washed the children’s clothes by hand (Day 3, transcript p.63B).

In relation to housing benefit, Ms Kofi-Adu’s evidence in chief was that she had provided all the information required by the letter dated 11 May 2004, but that she had heard nothing more (i.e. she did not receive the letters dated 10 June and 13 July 2004, copies of which were exhibited to Mr Armstrong’s second witness statement). She also said that some three weeks before the start of the trial she had paid Southwark some £60 on account of the rent arrears, and that she had the receipt for that payment at home. However, no such payment was recorded on Southwark’s computerised rent record, and despite repeated requests during the course of the trial that she produce a receipt for this payment, no receipt was ever produced.

The judge’s interventions during Miss Bhogal’s cross-examination of Miss Kofi-Adu were less frequent than those which had occurred during the cross-examination of Southwark’s witnesses, and they tended to be less critical of the witness. An early example of this is the interchange which took place between the judge and Ms Kofi-Adu concerning the allegations of noise made by her children (Day 3, transcript p.96E-97D):

“JUDGE: What are their hours of sleep?

WITNESS: They go to bed at 9 o’clock …

JUDGE: When do you put them to bed?

WITNESS: 9 o’clock.

JUDGE: And they wake up at?

WITNESS: 8 o’clock.

JUDGE: At 8. And, I mean, I can imagine that, especially when you have babies, they might have cried but they wouldn’t be running about, would they?

WITNESS: No, because I try and prevent them running around.

JUDGE: I can see kids running around during the day, but it is unusual in the night?

WITNESS: Night-time, no, they don’t run around at night-time.

JUDGE: As far as you can remember, they never woke up in the night and started playing around?

WITNESS: No.”

When Miss Bhogal turned to the topic of rent arrears, the judge expressed the hope that she was not going to go into the detail of the rent account, saying that the “big issue” was the nuisance claim. He went on (Day 3, transcript p.99F):

“I’m begging you not to spend a lot of time on the rent point …”

Mis Bhogal nevertheless persisted, and in the context of rent arrears she asked Ms Kofi-Adu why she had not kept up the payments required by the agreement entered into in September 2001. At that point the judge intervened and the following interchange took place between the judge and Miss Bhogal (Day 3, transcript p.105C-D):

“JUDGE: Never mind that she made the agreement. We’re dealing with the arrears now. She gets an agreement, she makes an agreement, she pays some payments for 7 weeks and then she stops and you do nothing for two years. These are the facts.

COUNSEL: Your Honour …

JUDGE: … so there’s no point in cross-examining. We know the facts. They’re documented.

COUNSEL: Your Honour, yes.”

Later in the cross-examination of Ms Kofi-Adu, Miss Bhogal attempted to put to Ms Kofi-Adu the fact that notwithstanding that housing benefit payments ceased in May 2004, she had made no payment in to the rent account since then. At that point the judge intervened, and the following interchange took place between the judge and Miss Bhogal (Day 3, transcript pp.115E-118F):

“JUDGE: There’s no point in cross-examining when the documents tell us the story.

COUNSEL: Your Honour, what I’m trying to establish …

JUDGE: All I want to know is what is the shortfall you’ve given me and how much would be the arrears if this claim is not discarded and paid?

COUNSEL: Well, my learned …

JUDGE: That’s not my job, it’s your job because you say there will still be arrears.

COUNSEL: Your Honour, yes.

JUDGE: How much will they be?

COUNSEL: Well, my learned friend estimated earlier during the course of the trial that they would be in the region of £1,400. I do not seek to predict what the arrears will be because at the moment …

JUDGE: You should seek to predict because you must establish your case.

COUNSEL: Your Honour …

JUDGE: The fact is you are now relying – and from the beginning of this trial you relied on the fact that this housing benefit we don’t know what it is. Now you tell me it’s a claim that has been discarded.

COUNSEL: Your Honour, yes.

JUDGE: Assuming that it should not be discarded – and I don’t accept that it shold be discarded – all I’m asking you to tell me, if it is paid, how much will she owe, that’s all. It’s very simple arithmetic.

COUNSEL: Your Honour, the problem …

JUDGE: It’s your case, not hers, that has to work out.

COUNSEL: But your Honour …

JUDGE: You are saying – you are suing as one of the grounds that today, or when it will be paid, she still has to pay.

COUNSEL: Your Honour, one of the difficulties is that she may not …

JUDGE: There is no difficulty. If I reject your case I will make an order for her to pay the rent. It’s very simple.

COUNSEL: Your Honour, because Mr Osei’s income has …

JUDGE: You want her out on the ground of non-payment of rent. That’s one of your grounds, isn’t it?

COUNSEL: It is, your Honour.

JUDGE: All right. Proof is not for her; proof is for you.

COUNSEL: Housing benefit will be calculated according to the household income. Mr Osei’s income will be relevant to this information and calculation, and it may be that Ms Kofi-Adu [will not be entitled] to full housing benefit as a result of Mr Osei’s income. That is why I cannot tell the court what the arrears will be once housing benefit has been worked out.

JUDGE: It is your case, and it was your case at opening, that this claim has been discarded.

COUNSEL: Your Honour, yes.

JUDGE: So if I reject that, and housing benefit should be worked out, it is for you to tell me on the basis that it will be paid – and you are housing benefit, we are not dealing with a stranger – you can get all the information, and you’ve had plenty of time to do it.

COUNSEL: Your Honour, the housing benefit assessment will be carried out by the relevant department. As at today …

JUDGE: The relevant department is part of you, as claimant.

COUNSEL: Yes it is, and as at today they have calculated that there is no benefit due because the information they asked for has not been provided.

JUDGE: They have calculated wrong, because they have discarded her claim. It’s as simple as that, so you must tell me, assuming that her claim is granted for which she has applied, what will she get? It’s very simple. Ask her.

COUNSEL: Your Honour, that’s not something I’m in a position to answer today.

JUDGE: Look, if you are going to be difficult about this I will subpoena the housing benefit people to come here with all the files.

COUNSEL: Your Honour, I do not seek to be difficult. I simply seek to say …

JUDGE: Well, you are seeking …

COUNSEL: … that I don’t have that information …

JUDGE: … you have been difficult since opening on this question and you have given me different answers, with the greatest respect to you, on this business of housing benefit.

COUNSEL: Your Honour, what …

JUDGE: And you have produced at the last minute a letter that has been discarded, only at the last hearing, by Mr Armstrong. It says it has enclosures, and I don’t know what the enclosures are. Anyway, get on with it, come on.”

It is clear from this interchange that the judge was having difficulty grasping the fact that, without the requisite information as to Mr Osei’s self-employed earnings, Southwark (and hence Miss Bhogal and those instructing her) could make no prediction as to what (if any) housing benefit might be payable to Ms Kofi-Adu in respect of the period from May to December 2004.

Later in the cross-examination Miss Kofi-Adu was asked a number of questions about Mr Osei’s work. At Day 2, transcript pp.130B-132G the following interchange occurred:

“COUNSEL: And how does it work? Does he give you money towards upkeep of the children and upkeep of the house?

WITNESS: You ask him. It’s got nothing to do with you.

COUNSEL: Madam, it is important to [know] whether or not you have been making payments into the rent account and what benefits (if any) you are entitled to.

JUDGE: He’s not the tenant. Why are you asking these questions.

COUNSEL: Your Honour …

JUDGE: What’s it got to do with you?

COUNSEL: Your Honour, as far as …

JUDGE: What’s it got to do with the rent paid?

COUNSEL: It’s got to do with the fact …

JUDGE: If she goes and pays …

COUNSEL: … that in the last three years, your Honour …

JUDGE: … the rent tomorrow do you ask her: ‘Does it come from you or your partner?’.

COUNSEL: Your Honour, it’s got to do with the fact that since …

JUDGE: It’s got to do with nothing.

COUNSEL: I shall make a note of the …

JUDGE: Make a note.

COUNSEL: … court’s observation in relation to that.

JUDGE: She’s told us he’s self-employed and he had lived with her since December 2003. I’ve noted that. How much he gives her a week or she gives him a week is not relevant to the issues in this case.

COUNSEL: It is relevant to the fact [that] there have been no payments, your Honour, from anybody, save for the payment of £60. That’s where it’s relevant. But of course I have heard the court’s observations.”

In the course of Ms Kofi-Adu’s oral evidence, a number of inconsistencies came to light. For example, in paragraph 6 of her first witness statement she had said that no DIY work of any kind had been carried out in her flat, whereas in the course of her evidence in chief she said (as noted earlier) that before she moved in Mr Osei had done some wall-papering and some work to the floor. Mr Osei had confirmed this in paragraph 10 of his witness statement, saying that he had replaced the flooring downstairs (that is to say, immediately above Mrs.Aitcheson’s flat) with laminated wood flooring. Miss Bhogal cross-examined Ms Kofi-Adu about the extent of the DIY work done in the flat. Ms Kofi-Adu’s first reponse was that she did not recall doing any DIY work in the flat (Day 3, transcript p.134F). Asked about the relaying of the floor of the downstairs area, she said that when she moved into the flat Mr Osei relaid the floor with laminated wood flooring, and that the work was completed within two days (Day 3, transcript p.135D). Asked again how long it took to complete the work, Ms Kofi-Adu twice confirmed that it took two days (Day 3, transcript pp.135H and 136C). At that point the judge intervened and asked Ms Kofi-Adu a number of detailed questions about the nature and extent of the DIY work involved. Her answers clearly led the judge to conclude that her evidence that the work was done in two days must be mistaken, for he proceeded to invite Ms Kofi-Adu, in effect, to revise her evidence in that respect: an invitation which, not altogether surprisingly, Ms Kofi-Adu accepted. The relevant interchange was as follows (Day 3, transcript pp.139G-140C):

“JUDGE: So you did one big operation of floors and walls when you went in?

WITNESS: Yes.

JUDGE And that must have taken more than two days.

WITNESS: A little over two days.

JUDGE: Well now, let’s be honest about it.

WITNESS: A little over two days.

COUNSEL (intervening): That’s her evidence, your Honour.

JUDGE (to the witness): Might have taken the whole of July? Yes? Possibly?

WITNESS: Yes.

JUDGE: Running, maybe, to the time that this lady complained first [early August 2001]?

WITNESS: Yeah.

JUDGE: Yes. All right. Good.”

Later, Miss Bhogal asked Miss Kofi-Adu whether any DIY tools (she specifically mentioned a saw and a hammer) were kept in the flat from August 2001. Ms Kofi-Adu insisted (Day 3, transcript p.142B-C) that there were no DIY tools in the flat after August 2001. The judge asked her what she had done with the tools when the DIY work in carried out in July and August 2001 was completed. Miss Kofi-Adu replied (Day 3, transcript p.141F):

“I don’t know. Dismantled them. Threw them away.”

Asked specifically about a saw, Ms Kofi-Adu confirmed that there was no saw in the flat after August 2001. Miss Bhogal then asked her about DIY works which were carried out to the bathroom in about July 2003. Miss Kofi-Adu agreed that Mr Osei had laid a new floor in the bathroom in early 2003. Then, no doubt recalling her evidence that there were no DIY tools in the flat after August 2001, she volunteered that “he didn’t use any hammer, he just clipped them in” (Day 3, transcript p.144C). The judge intervened once again, and the following interchange occurred (Day 3, transcript pp.146B-147D):

“JUDGE: Madam, madam, it is not possible. I’m not a builder, I don’t do any DIY …

WITNESS: Neither do I.

JUDGE: … but if you – neither do you? We’ll ask him what tools he used but don’t keep saying no. You must have tools to do this job.

WITNESS: Yes.

JUDGE: If you don’t know what tools he used, say so, but don’t try to persuade us that he used no tools because it is impossible. All right. All right. Next question.

COUNSEL: Are there any tools stored in your property?

WITNESS: No.

COUNSEL: Have there ever been any tools stored in your property – throughout the whole period now, not just August 2001? I want to be clear, throughout the whole time have there ever been tools stored in your property?

WITNESS: No.

JUDGE: No tools stored in the property.

COUNSEL: And so when this work was finished in early 2003, what, by March would you say?

WITNESS: March.

COUNSEL: All the tools, all the clutter, everything had been removed from the property?

WITNESS: Yes.

At this point, the judge threw the witness a lifeline, as follows:

“JUDGE: Well, I mean, can I ask her this? Does he [Mr Osei] have tools that he brings with him?

WITNESS: Does he have tools that he brings with him to do the work?

JUDGE: Yes.

WITNESS: Yes.

JUDGE: He does. And he takes them back or …

WITNESS: He takes them back.

JUDGE: Once the job is [done] I suppose he keeps them?

WITNESS: Yes.

JUDGE: So during the operation of the job he’ll have his tools …

WITNESS: Yes.

JUDGE: … and when the job is finished he takes them back?

WITNESS: Yes.

JUDGE: All right. Fine.”

However, the judge’s lifeline proved ineffective to rescue Ms Kofi-Adu, for Miss Bhogal then put to her a photograph of her kitchen, taken by Mr Armstrong in August 2003 (that is to say, after the works to the bathroom had been completed), which clearly shows a saw stored under the work-surface. The judge asked Miss Kofi-Adu a number of questions about the photograph, as follows (Day 3, transcript p.148E-149):

“JUDGE: Well, there’s a saw here. What do you say about it?

WITNESS: I don’t know.

JUDGE: Didn’t come from the sky. You have a saw there?

WITNESS: Yes.

JUDGE: Well, why do you say you have no tools?

WITNESS: He must have kept it there for a purpose.

JUDGE: I’m sure. What purpose, though?

WITNESS: Well, it doesn’t look like he’s done DIY in the property.

JUDGE: Did you ever use it?

WITNESS: I don’t know. I don’t know how to use a saw.

JUDGE: You don’t know?

WITNESS: How to use a saw.

JUDGE: A saw like that?

WITNESS: Yeah, but I’m not going to use it in my property for anything, am I?

JUDGE: Did Johnnie [Mr Osei] use it?

WITNESS: Not at that time, no.”

Miss Bhogal then asked Ms Kofi-Adu some more questions about the saw, and put it to Ms Kofi-Adu that she was lying. Ms Kofi-Adu replied that she was not lying. She went on to say that Mr Osei had used the saw in August 2001, but that it had not been used thereafter.

Miss Bhogal then turned to the allegations of nuisance, and to Ms Kofi-Adu’s allegations of racist abuse by Mrs Aitcheson. Miss Bhogal put to Miss Kofi-Adu that Ms Cameron’s note of the mediation meeting on 14 August 2002 contains no note of any complaint by Ms Kofi-Adu of racist abuse aimed at her by Mrs Aitcheson. Ms Kofi-Adu replied that she wrote to the Housing Officer about it. The cross-examination continued as follows:

“COUNSEL: Where is it? Where is your note?

WITNESS: I write it to the Housing Officer, and he doesn’t do nothing about it. That’s what I’m telling you.

COUNSEL: There is no note that you have produced today. The Housing Officer has not produced any notes to that effect.

WITNESS: I used to write a lot of notes.

JUDGE: Well, he should have. If he hasn’t, he should have. (Pause while a discussion takes place between counsel.) She hasn’t produced a note. She says she made the complaints and gave it to him.

COUNSEL: Your Honour, Ms Kofi-Adu’s housing file has been disclosed. If she’d made complaints they would appear on that file, and of course it would be open to Mis Kofi-Adu’s representatives to put those documents in.

JUDGE: Lots of stuff was not disclosed until the last minute, with greatest respect.”

In response to further questions from Miss Bhogal, Ms Kofi-Adu insisted that she had written to Southwark “on several occasions”. She said that she had copies of her letters at home. Miss Bhogal asked her (Day 3, transcript p.157C): “If those documents existed, they would be here, wouldn’t they?” The judge then intervened to say: “Well, you have, but we haven’t got them, unfortunately, so let’s leave it there.” It is apparent from the transcript that at this point Ms Kofi-Adu must have become agitated, and the judge was constrained to warn her to behave herself, saying (at Day 3, transcript p.159B): “You’ve done enough damage to your case already by your attitude.”

Miss Bhogal then put to Ms Kofi-Adu a number of Mrs Aitcheson’s specific complaints about noise, including her complaint about the noise of a child running about on a wooden floor. The judge intervened again, and the following interchange took place (Day 3, transcript pp.166F-167B):

“JUDGE: There could have been a child running at that time. You already had …

WITNESS: My daughter.

JUDGE: … one daughter …

WITNESS: Yes.

JUDGE: … who was one?

WITNESS: Yes.

JUDGE: So you say it couldn’t have happened?

WITNESS: No.

JUDGE: And it didn’t happen?

WITNESS: No.

JUDGE (to counsel): That’s her answer.”

The cross-examination then turned to the allegations of flooding. Ms Kofi-Adu insisted, in answer both to Miss Bhogal and to the judge (and despite suggestions by the judge that she might be mistaken), that she had ceased to use her washing machine in December 2002, and that at that point it was disconnected from the tap in the kitchen sink. She accordingly maintained that it could not have been responsible for the incidents of flooding which had allegedly occurred in 2003. Miss Bhogal asked her specifically (Day 3, transcript p.183D) whether the washing-machine was ever reconnected after December 2002, and she confirmed that it was not. At that point, Miss Bhogal put to her another of the photographs taken by Mr Armstrong in August 2003 which showed the washing machine connected to the tap in the kitchen sink, and put to her that she was lying. She denied that she was lying, whereupon the judge intervened, and the following interchange took place (Day 3, transcript p.183G-184D):

“JUDGE: Well, then the picture is lying. Either you are lying or the picture is lying. We can see the pipe and this …

WITNESS: Honestly, I used it again …

JUDGE: … picture was taken on 5^th August 2003. There’s not much point in connecting a pipe if you’re not using it, is there? Yes or no?

WITNESS: Yes.

JUDGE: So the picture is not lying?

WITNESS: No, I did use it in 2003.

JUDGE: Well, when do you say now that you stopped using it? If you’re using it on 5^th August, did you ever stop?

WITNESS: I did stop for a while, then I used it again.

JUDGE: I see. When did you start again after December?

WITNESS: I used it again in March 2003.”

After further questioning, Ms Kofi-Adu accepted that the flooding in April 2003 was also caused by her washing-machine. She went on to say (Day 3, transcript p.186B) that she stopped using the washing machine completely in May 2003. The judge then asked her (Day 3, transcript p.187F) how she washed clothes thereafter. Ms Kofi-Adu replied: “That’s it. I’ve been using my hands now”. The questioning then proceeded as follows:

“JUDGE: You wash clothes by hand, and everything?

WITNESS: Yes.

JUDGE: But the machine is still there?

WITNESS: Yes.

JUDGE: If we go now we’ll find it there …

WITNESS: Yes.

JUDGE: … and it’s not working? You never use it?

WITNESS: No.

COUNSEL: Is it still plumbed in?

WITNESS: That’s got nothing to do with you.”

Miss Bhogal then reverted to the complaints of excessive noise made by children, asking why Ms Kofi-Adu did not use the upstairs bedroom as a play area for her children. At that point the judge intervened (Day 3, transcript p.191D-E) to ask Miss Bhogal whether she (Miss Bhogal) had children. When Miss Bhogal submitted that that was not relevant, the judge said: “It is not irrelevant, because reasonableness is very important”.

The final witness was Mr Osei. He confirmed that he had relaid the floor in the downstairs area of the flat, saying that he had completed the work in one day. He also confirmed that he had carried out DIY work in the bathroom in July 2003. He said that he had borrowed a saw and a hammer from his sister, but that in doing the work he had used only the saw. He said initially that he had not used the hammer at all, but in answer to questions from the judge he agreed that he might have used the hammer once or twice. When Miss Bhogal put to him the photograph of the washing-machine, he said that although it was connected, it was not used. Miss Bhogal put it to him that he was lying. He denied that, saying that perhaps Miss Kofi-Adu had used it in 2003, but he had not. When the judge reminded him of Miss Kofi-Adu’s evidence that she had ceased using the washing-machine in either March or June 2003, his answer was: “She might be right.” He said he did not know the exact date when she stopped using it.

Consistently with the manner in which the trial had been conducted hitherto, Counsel’s closing speeches took the form, essentially, of a running dialogue between counsel and the judge.

We turn next to the judge’s judgment.

After referring to his refusal to adjourn the trial, the judge said this (in paragraph 9 of his judgment):

“…. I did indicate when I refused the adjournment that in so far as there is any evidence to come from the Housing Benefit Department of the Claimant it should be available; there were two days of trial with a weekend, and in fact as it turned out we had three days of trial in this matter, but as I shall indicate I am still no wiser as regards what is going on at Housing Benefit with regard to recent applications.”

In paragraph 10 of his judgment, the judge listed the witnesses who had given oral evidence, referring to Mrs Aitcheson as having produced “lots and lots of diaries supposedly made of the noise she heard”.

The judge then turned to the evidence as to nuisance and annoyance. In paragraphs 14 and 15 of his judgment he summarised the contents of Mrs Aitcheson’s diary sheets, as follows:

“14.

We then have a series of complaints from [Mrs Aitcheson], and these were diarised, starting in October 2001, and going on till the end of 2001; so from August onwards, we have: 22nd October at approximately 3.30 p.m. there was furniture being dragged along the premises and banging, all clearly audible outside the premises. On the 11th November, 12.43 p.m. thumping and things being dropped and rolled across the floor, all clearly audible outside the premises. On 13th November 2001 at approximately 12 a.m. there was a child running back and forth, clearly audible outside the premises. On the 14th November 2001, at approximately 12.30 p.m., there was a child running back and forth and knocking things onto the floor of the premises. On the 19th November 2001, at approximately 3.25 a.m, there were heavy steps on the wooden floor of the premises. On the 20th November 2001, there was banging on the floor and heavy footsteps walking back and forth. The Defendant's neighbour then said the noise was over her bedroom and she shouted up, "Be quiet". Johnnie then said, "I don't f-care what you do, rotten B.T.C.H. You F-ing B.T.C.H, do what you like." It is hard to imagine that this could have taken place then because this lady, Mrs Adu, was having her baby at the time, and all this banging et cetera and thumping by children was at a time when her child, Abigail, was about nine months old.

15.

On 21st November, I continue, at approximately 3 a.m. there was a big bang on the ceiling on the floor. On 24th November at approximately 1.45 a.m. there were people walking around. On 11th December 2001 there was banging on the floor, stamping and sounds of furniture being pulled about. On 17th January 2002 at approximately 2.30 a.m. there was thumping on the floor and furniture being moved about. On 18th January 2002 at approximately 2 a.m. there was banging and the sound of a child running back and forth. The noise stopped for 30 minutes and then started again.”

The judge continued (in paragraph 16 of his judgment):

“16.

So here we are, all this terrible noise going on after the August incident between October and the end of the year and the beginning of the next year, which, with the greatest respect to this lady, is either a figment of her imagination or was not the kind of thing she describes at that level. They are of course all denied and the commentary by Mrs Adu is all these paragraphs are denied, the first of these allegations dates from 13th November 2001 when the Defendant had one child, approximately 10 months; the last of these allegations is from a couple of years later, 10th June, by which stage the Defendant had two children, the eldest of which was aged approximately two-and-a-half and the one other a year. Given their very young age neither of these children would have been capable of running back and forth in the manner that is implied by the Claimant's schedule, nor in any manner such that would cause nuisance or unreasonable annoyance.”

The judge then referred to the attempt at mediation which took place on 14 February 2002, to the correspondence with Cllr Ritchie, and to Ms Cameron’s note of her visit to Mrs Aitcheson on 14 August 2002, including her note of the racist remark made to her by Mrs Aitcheson at the conclusion of the visit. The judge commented (in paragraph 19 of his judgment):

“This is the same lady who comes to this Court repeating these same allegations and saying in effect that she was as good as can be, complaining against this noise, and she tells her own Housing Officer: ‘I am always sticking up for her people, black people’.”

The judge went on to refer to the attempt at mediation on 19 September 2002, and to the agreement which the parties signed on that date, commenting that “if that had been complied with by Mrs Aitcheson, we would not be here today”.

The judge then reviewed the evidence as to the allegations of flooding. Having done so, he turned to the evidence of Ms Johnson. He was highly critical of Ms Johnson’s ‘Without Prejudice’ letter dated 28 April 2003 in which proceedings were threatened. He further observed that although in her note of her interview with Ms Kofi-Adu on 22 May 2003 Miss Johnson had said that she would investigate Miss Kofi-Adu’s allegation that Mrs Aitcheson had racially abused and harassed her, she did not in fact do so.

In paragraph 27 of his judgment the judge referred once again to Mrs Aitcheson’s diary sheets, saying this:

“27.

It does not stop at that because when [Mrs Aitcheson] gave her evidence, not only did we have diary sheets that she had stopped in 2002 but she had apparently started them again after the proceedings and were all put in to say that all this noise and terrible things have continued, terrible noise and flooding continued after the possession proceedings had begun.”

In paragraph 28 of his judgment, the judge said this:

“28.

I am extremely disappointed that on a matter of this nature there should not have been a more even-handed approach to the commencement of these proceedings certainly in relation to the so-called noise, annoyance and anti-social problem. I have observed the evidence given by the parties. It seems to me that Mrs Mary Aitcheson was not a racist as such but what I would describe as a lady who did not like the advent of neighbours who she described as "foreigners", "Africans", whatever you will, and her attitude towards Miss Cameron, who apparently was also black, demonstrated this in no uncertain terms, and her complaint about these people "cheating the system", demonstrate that she resented very much the advent of those neighbours. This was portrayed to me in evidence by the fact that she pretended that she could not even pronounce the name of Miss Kofi-Adu, which is not very difficult to pronounce, and her general evidence in relation to the matter. Quite frankly I do not believe that she did hear all these terrible noises, except possibly at a time when there was DIY. I reject her evidence as to thumping and hammering et cetera in the middle of the night, and what is left, in my judgment, was ordinary domestic noises that would emanate from any household that has little children. I do not believe for one moment that either Mr Osei or Miss Kofi-Adu went out of their way to annoy or cause a nuisance to this lady, and I reject entirely her accounts of what happened in the few altercations, if I may put it that way, except for the one admission that was made by Miss Adu regarding the throwing of the water for which she apologised and was rebuffed therefor.”

Those findings were, on their face, more than sufficient to defeat Southwark’s claim based on alleged nuisance or annoyance. However, two matters are to be noted. First, in rejecting Mrs Aitcheson’s evidence the judge does not expressly mention the diary sheets; still less does he explain why he had reached the conclusion – which, implicitly, he must have reached – that the entries recorded in them were at best exaggerated or at worst simply untrue (i.e. “a figment of her imagination or … not the kind of thing she describes at that level”: see paragraph 16 of his judgment, quoted in paragraph 92 above). Secondly, the judge does not explain why he was content – as, implicitly, he must have been – to accept the evidence of Ms Kofi-Adu as substantially truthful, despite the obvious damage inflicted on her credibility during her cross-examination and despite the fact that it is plain from the interchange quoted in paragraph 83 above that the judge was satisfied that Ms Kofi-Adu was giving lying evidence in relation to her use of the washing-machine.

In paragraph 29 of his judgment the judge turned to the evidence in support of Ms Kofi-Adu’s Part 20 Claim, based on alleged disrepair. In paragraph 30 he referred to a report dated 14 August 2004 which concluded that repairs were required to radiator valves in number 12.

In paragraph 31 of his judgment the judge turned to the claim based on arrears of rent, and recited the history of the rent account as summarised earlier in this judgment. After referring in some detail to Mr Armstrong’s second witness statement, and to the three letters exhibited to it, the judge continued:

“It is quite extraordinary that when the Court specifically requests information from Housing Benefit at the beginning of the trial, this is the kind of information that it is given, when specifically requested. I am again disappointed that whoever is responsible for this - and I am not attributing blame to anybody - that I should be told, when I specifically asked for information, simply that all these claims have been discarded, is, with the greatest respect, not good enough. I have no doubt that at the end of the day there will be, whether by a new claim or by a reconsideration of both the claims, money coming in to resolve this matter. I do not accept that this is an appalling case of rent arrears. I certainly do not accept that. I am told that if one disregards completely the question of any payments to come in from Housing Benefit, the rent arrears would stand now at £2,981. Whether it be the application of Miss Adu or Mr Osei, I have no doubt that there would come in, I don't know how much, but a substantial amount that would reduce the arrears to something in the region of no more than £1,000, and it is a matter of regret that in all this time I do not have a picture to deal with it. All I can say is that in a situation like this I would not for one moment agree with Miss Bhogal that this ground alone would justify making an Order for Possession on that ground.” (My italics)

It is significant that in considering Southwark’s claim for possession under Ground 1 the judge concluded that there was “no doubt” (that is to say, he found) that Ms Kofi-Adu (or Mr Osei) would establish an entitlement to housing benefit in such an amount as would reduce the arrears to £1,000 or thereabouts.

The judge then turned to the question of reasonableness. At the end of paragraph 33 of his judgment he effectively repeated his earlier findings in relation to the allegations of nuisance and annoyance, saying this:

“I have no doubt that the noise was no higher than necessary and was reasonable in a household that had initially one child and now three young children.”

In paragraphs 34 to 36 of his judgment the judge reviewed Miss Kofi-Adu’s current circumstances, and the nature of the accommodation provided by her flat. In paragraph 37 he reminded himself of Lord Greene MR’s observation in Cumming v. Danson (quoted in paragraph 15 above) as to the approach to be adopted by the court in determining the question of reasonableness.

Given his earlier findings as to the availability of housing benefit, the judge must have approached the issue of reasonableness on the footing that the rent arrears would amount to no more than £1,000 or thereabouts, since no other approach would be consistent with those findings.

In paragraphs 38 and 39 of his judgment, the judge said this:

“38.

I have given much weight and thought and consideration to everything advanced on behalf of the London Borough of Southwark in this case. I have considered the fact anxiously that this is an old lady who has been disturbed on occasions, but not in the way that she describes. I have considered that she suffered from flooding as she says, leaks to her property, and I note that this is the one matter that has not really been properly investigated by the London Borough of Southwark. It may well be that it is their fault in the sense that they had not had it plumbed properly, and that the leaks are due to that, but that has been debated and debated, and I do not think that it is fair and an even-handed approach to blame it all on this washing machine. In any event, I am satisfied that since the middle of August 2003 it has not been used, and there has not been any problem. In fact the latest plumber says he did go and found no leaks at all.”

So in paragraph 38 the judge appears to accept that Mrs Aitcheson suffered flooding “as she says”, and that the cause of the flooding was Miss Kofi-Adu’s washing machine. However, he goes on to suggest that, as Ms Kofi-Adu had asserted in evidence, the fault may have lain with Southwark for not having plumbed the machine in properly; and he concludes that Southwark should be treated as partly responsible for the flooding.

The judge continued as follows (in paragraph 39):

“39.

Is it reasonable to make an order in a situation where this lady, albeit disturbed and elderly, has made these racist remarks. Is it reasonable to make an order having read what I have just read about this lady, who would be rendered homeless and without the opportunity of the family having continued occupation in this flat, going to their schools and raising this young family. Not only is it not reasonable, it would, in my judgment, be most unreasonable to make an outright order for possession. I therefore refuse the claim for possession.”

The judge then returned briefly to Miss Kofi-Adu’s Part 20 Claim, saying this (in paragraphs 40 and 41 of his judgment):

“40.

I go briefly to the Counterclaim based on repairs. As I say, there has been recent reports and it seems there are two claims here; there is one for the inconvenience of keeping these radiators on because it is too hot and stuffy, and also the leaks they caused, there is loss to the carpet but no receipts have been produced, and I am not giving any Special Damages.

41.

As to inconvenience, it is certainly inconvenient to have the place too hot, but there is no room in my judgment here for giving damages for inconvenience or stress on that score. I will dismiss the damages claim but I would urge - there is a plea for specific performance in relation to the repair claim - and I would urge that proper attention be given to these radiators that are leaking as soon as possible. Save for that I will dismiss the Counterclaim.”

Southwark contends that the judge was wrong to reject its case based on arrears of rent, and that he made findings in relation to the availability of housing benefit which no reasonable judge could have made. It further contends that the judge ought to have made findings as to the credibility of Ms Kofi-Adu and/or Mr Osei, asserting that Ms Kofi-Adu’s credibility was damaged in cross-examination; and that the judge ought to have accepted the evidence of Mrs Aitcheson’s diary sheets. Grounds 11 and 12 of Southwark’s grounds of appeal are in the following terms:

“11.

The judge failed to accurately recall information that had already been given to the Court in evidence. This resulted in the Judge failing to identify instances when the same witness had given differing versions of events during their evidence.

12.

The judge failed to conduct the hearing in an appropriate way. There are similarities between the Judge’s conduct of this hearing and the reported decision of the Court of Appeal in Shine v. English Churches Housing Group [2004 EWCA Civ 434, [2004] HLR 42, [in the course of which] the Court of Appeal criticised HHJ Cotran. The Appellant will submit that similar criticisms can be made of his conduct in this case.”

Southwark invites this court to substitute for the judge’s order an order for possession in 28 days (or such other time as the court may allow), together with an order for costs in its favour. In the alternative, it seeks a retrial.

By her Respondent’s Notice Ms Kofi-Adu invites this court to uphold the judge’s order on two additional grounds.

First, she points out that Southwark elected to base its case almost exclusively on the evidence of one witness, namely Mrs Aitcheson, notwithstanding (a) that it was clear from the history of the matter that the credibility and reliability of her evidence would be challenged at trial, and (b) that it was evident from Southwark’s own records that Mrs Aitcheson had allegedly been racially abusive towards Mrs Kofi-Adu and her family and that Southwark had not investigated those allegations. She contends that it was not reasonable for Southwark to base its claim to possession solely on Miss Aitcheson’s evidence, when it could have obtained more credible evidence from other witnesses; for example, noise officers. Nor, it is contended, was it reasonable to make a possession order in circumstances where Southwark offered no evidence that it had approached the matter in an even-handed way or that it had investigated Mrs Kofi-Adu’s complaints of alleged racial abuse and harassment by Mrs Aitcheson.

The second ground relates to housing benefit. The point is taken that at no time did Southwark adduce direct evidence as to the issues as to housing benefit. It is contended that given that there were unresolved questions about housing benefit and that Southwark had a reasonable opportunity to address them, the judge was right to conclude that it was not reasonable to order possession on grounds of arrears of rent.

As to the claim based on rent arrears, Miss Bhogal submits that an outright order for possession was justified on the ground of rent arrears alone. She refers to the history of the rent account, pointing out that even during the periods when housing benefit was being paid there was still an outstanding balance which Ms Kofi-Adu allowed to fall into arrears. She points out that there were large gaps between payments; that Ms Kofi-Adu did not keep to her agreement to pay £2.70 per week off the arrears, and that had she done so the rent account would now be in credit. She informs us that the last payment into the account was a housing benefit payment of £52.77 made on 10 May 2004 (some seven months before the start of the trial).

She adopts Miss Cafferkey’s estimate that even if full housing benefit were payable as from 10 May 2004 (when payment of housing benefit was suspended) to 2 December 2004 (the date of the trial), the arrears as at the latter date would still have been in the region of £1,400 (the figure which she gave to the judge: see paragraph 71 above); and that if Ms Kofi-Adu were ordered to repay those arrears at the rate of £2.85 per week (the maximum sum which she could be ordered to pay) it would take more than eight years to clear the arrears even assuming that full housing benefit was payable throughout and that the weekly payments of £2.85 were duly made. She further submits that if Ms Kofi-Adu wished to challenge Mr Armstrong’s evidence that there was no outstanding claim to housing benefit, it was open to her to compel the attendance of the housing benefit officer by issuing a witness summons.

She submits that if the judge was not satisfied by Mr Armstrong’s evidence, and considered that there was a possibility that further housing benefit payments might be due, he should have adjourned the claim for possession based on arrears of rent rather than dismissing it altogether.

She submits that there was no evidential basis for the judge’s finding (in paragraph 32 of his judgment, quoted earlier) that there was “no doubt” that a substantial amount of housing benefit was due to Ms Kofi-Adu or Mr Osei, such as would reduce the rent arrears to no more than £1,000 or thereabouts. She submits that that was a finding which no reasonable judge could properly have made.

As to the judge’s findings generally, Miss Bhogal submits that he failed to give appropriate, or indeed any, weight to the fact that Ms Kofi-Adu’s credibility was damaged during cross-examination. In this connection she referred us to a number of inconsistencies in Ms Kofi-Adu’s evidence, including those referred to earlier in this judgment. She further submits that the judge failed to take account of Ms Kofi-Adu’s demeanour when giving her evidence; a demeanour which she describes as argumentative and aggressive in both tone and posture, and marked by repeated refusals to answer questions. She submits that the judge ought to have preferred the evidence of Mrs Aitcheson, based on her contemporary diary sheets, to that of Ms Kofi-Adu and Mr Osei.

As to the judge’s conduct of the hearing, Miss Bhogal points to his repeated interruptions, both during counsel’s speeches and during the oral evidence. She submits that the extent of the judge’s interruptions was excessive and inappropriate. She also objects to the judge’s general conduct of the trial. She refers us to the adverse comments made by this court in Shine as to the conduct of HHJ Cotran in that case.

In Shine the claimant, Mr Shine (who appeared in person before the judge and in this court), was a secure tenant of English Housing Group. He was unemployed and lived on benefit. In the action, he claimed damages against his landlord for breaches of the repairing covenants implied by section 11 of the Landlord and Tenant Act 1985. The landlord counterclaimed for possession. Following a trial, at which the only live issue on the claim was the quantum of damages, the judge awarded Mr Shine damages of £19,000 and dismissed the landlord’s counterclaim. He refused the landlord’s application that it should be allowed the costs reserved at earlier interlocutory hearings, and he also refused its application to set off against the £19,000 damages a sum of £1,500 representing costs awarded to it on an earlier unsuccessful appeal by Mr Shine. This court (Keene and Wall LJJ) allowed the landlord’s appeal and reduced the damages to £8,000, subject to set-off in respect of some of the landlord’s costs.

The issues in Shine were, of course, different from those which fell for decision by the judge in the instant case. However, the relevance of the case lies in this court’s criticisms of the judge’s conduct of the trial.

Thus, in the course of its judgment (delivered by Wall LJ) the court said this:

“69.

In addition to the judgment, we have transcripts of parts of the hearings before the judge on 15 July 2002, 28 November 2002, and 9 June 2003, as well as of the exchanges between counsel and the judge after judgment had been given. Even bearing in mind that Mr. Shine was acting in person, and that as a consequence the judge may have felt the need to be more interventionist than if he was represented, the transcripts make very unhappy reading. Counsel's opening on 15 July 2002 is so persistently interrupted by the judge that counsel is rarely able to utter more than two sentences at a time. Counsel's perfectly proper attempt to cross-examine Mr. Shine is likewise subjected to a running commentary from the judge, most of it hostile. Counsel remains entirely courteous throughout, and when, towards the end of the day it looks as if he is going to be unable to finish, he says that he would be grateful if the case could be put over to another date. The judge replies: -

‘To another date, what? After you finish the work or ....You know, I have other things to do. I have given you time. You estimated a day today. We have had a day and we have not finished. I am offering you tomorrow simply because I had a two day case that collapsed.

Counsel: Your Honour, with respect, your Honour has consistently interrupted me this afternoon.

Judge Cotran: I have interrupted you because you are asking irrelevant questions. I think I am entitled to do that.’

128.

In our judgment, the judge was plainly wrong not to reconsider the question of the reserved costs and not to set off the sum of £1,500 against the damages awarded. However, in rejecting both applications, his behaviour is unacceptable. He is both abrupt and discourteous. He makes it clear he is not prepared to entertain argument, and gives no reasons. By contrast, counsel behaves with courtesy throughout; despite what we have to say was severe provocation from the bench.

129.

If the transcripts we have read represent the way Judge Cotran habitually conducts himself in court, he should re-read them and reflect seriously on them. No doubt every judge has from time to time winced on reading an incautious or inappropriate intervention or aside. However, these transcripts go well beyond any momentary lapse in courtesy or incautious judicial intervention.”

Miss Bhogal invites us to draw a direct parallel in the above respects between Shine and the instant case.

Finally, Miss Bhogal submits that the case is sufficiently clear to enable this court to make an outright order for possession in 28 days, and that a retrial is unnecessary.

As to the case based on rent arrears, Miss Cafferkey submits that no clear findings could be made as to the level of rent arrears because of the unresolved issues as to housing benefit. She submits that Southwark had no power to ‘discard’ an application, and that the correct course if the requested information as to Mr Osei’s earnings was not provided was to refuse the application. Accordingly, she submits, there was at the date of the trial an application for housing benefit which was technically outstanding, and the judge was right to proceed on that basis.

In any event, she points out that the judge found that it would not be reasonable to make an order for possession on the ground of rent arrears alone, and that there is no basis on which this court could properly interfere with that finding. In support of this last submission she relies on the well-known passages in the judgments of Clarke LJ (as he then was) in Assicurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577 at paras 16 to 22 and Robert Walker LJ (as he then was) in West Kent Housing Association Ltd v. Davies 31 HLR 415 at 423.

She submits that it was only after payments of housing benefit stopped in May 2004 that the rent arrears began to increase dramatically.

She asserts that it is widely accepted in the social housing sector that possession on the basis of rent arrears should only be sought as a last resort. She referred us in this connection to Chapter 6 of the guidance issued by the Office of the Deputy Prime Minister on 3 November 2004, under the heading ‘Managing Rent Arrears’, which emphasises the need for regular, clear and effective communication with a tenant about rent arrears. Paragraph 7.7 of the guidance sets out various steps which a social landlord should take before commencing possession proceedings, including making every effort to negotiate with the tenant, and reviewing his or her personal circumstances. Miss Cafferkey points out that in the instant case Southwark took none of those steps. She submits that in the circumstances of the instant case the judge was plainly right to find that it would be unreasonable to make a possession order based on rent arrears alone.

As to Miss Bhogal’s submission that the judge should have adjourned the claim based on rent arrears, Miss Cafferkey points out that no application to adjourn it was made, and that in any event it was in the discretion of the judge whether to adjourn the claim or whether to dismiss it and leave it to Southwark to bring a new claim.

As to the judge’s findings as to the prospect of Ms Kofi-Adu or Mr Osei establishing an entitlement to housing benefit backdated to May 2004, Miss Cafferkey submits that the judge was faced with unresolved issues as to that, and that the burden of proving the rent arrears lay with Southwark.

As to the contentions that the judge should have made findings as to the credibility of the witnesses and should have preferred Mrs Aitcheson’s evidence to that of Miss Kofi-Adu, Miss Cafferkey submits that these were pre-eminently matters for the trial judge, who was well-placed to form an accurate impression of the witnesses.

As to the judge’s conduct of the hearing, she accepts (as she must) that the judge repeatedly interrupted throughout the trial, but she submits that his interruptions affected both sides equally; and that despite the interruptions a full hearing took place and full submissions were addressed to the judge. She submits that there is no basis for the submission that when he came to deliver judgment (only a few days after the conclusion of the hearing) the judge failed to recall evidence which had been given.

Finally she submits that in any event there are no grounds on which this court could properly substitute an outright possession order, and that the only relief to which Southwark could possibly be entitled would be a retrial. She submits that a retrial would be unjust and disproportionate.

We turn first to the judge’s treatment of the claim based on rent arrears. It is clear from his dismissive comments at the start of the trial (see, e.g., paragraph 50 above) that he had already formed the view that a claim based on rent arrears alone must fail – a view which he maintained (and expressed at intervals) throughout the trial, and which was ultimately reflected in his judgment. However, as noted earlier (see paragraphs 100 to 104 above), whilst accepting Southwark’s figure of £2,981.45 as representing the arrears at the start of the trial, the judge found (in paragraph 31 of his judgment, quoted in paragraph 100 above) that either on a new application or on “reconsideration” of the application made in June 2004 Ms Kofi-Adu would be entitled to payment of housing benefit from May 2004 until the trial, and that that entitlement would have the effect of reducing the rent arrears as at the date of trial to £1,000 or thereabouts. Logically therefore, as we point out in paragraph 104 above, he must have approached the question whether it was reasonable to make an order for possession based on rent arrears alone on the footing that the true amount of the rent arrears was £1,000 or thereabouts, and not Southwark’s figure of £2,981.45.

We are wholly unable to discern any rational basis for the judge’s findings as to Ms Kofi-Adu’s entitlement to housing benefit. Whether or not Southwark was correct to ‘discard’ the application made in June 2004, it is not in dispute that no information was at any stage provided by Ms Kofi-Adu or Mr Osei as to his self-employed earnings. As Miss Bhogal attempted to explain to the judge (see paragraph 71 above), without that information it was not possible to arrive at any estimate as to the amount of housing benefit to which Ms Kofi-Adu might be entitled in respect of the period from May 2004 until the trial. Indeed, there was no guarantee that she would be entitled to any housing benefit at all for that period.

In any event, Miss Cafferkey’s submission that the application made in June 2004 was still technically outstanding misses the point. Further information had been requested by Southwark in its letter dated 10 June 2004, and that information was never provided. In consequence, even if the application was still technically ‘live’, it was incapable of being processed.

So the judge’s whole approach to the rent arrears issue was fundamentally flawed, and his conclusion on reasonableness in relation to that issue cannot stand.

It is undeniable that Southwark took something of a risk in basing this claim on the evidence of a single witness, namely Mrs Aitcheson. At the same time, Southwark was entitled to expect that, faced as he was with direct conflicts between the evidence of Mrs Aitcheson (backed by her diary sheets) on the one hand and of Ms Kofi-Adu and Mr Osei on the other, the judge would subject the evidence of each of those witnesses to proper scrutiny; and that his judgment would contain some assessment of their relative credibility and reliability as witnesses. Yet the judge’s judgment contains no such assessments.

Nor does it end there. Firstly, the judge ought, in our judgment, to have explained why he was not satisfied as to the reliability and accuracy of the contemporaneous diary sheets which Mrs Aitcheson had completed. These diary sheets were, after all, the central plank in Southwark’s claim based on nuisance and annoyance. Instead, the judge seems to have started from the proposition, stated baldly in paragraph 16 of his judgment (quoted in paragraph 92 above), that the diary sheets were “either a figment of her imagination or was not the kind of thing she describes at that level”: i.e. that the descriptions which they contained were either entirely false or at the very least exaggerated. Yet the judge gives no reasons for that sweeping conclusion, beyond saying: “They [the diary sheets] are of course denied”.

Secondly, the judge ought to have dealt expressly in his judgment with the damage inflicted on Ms Kofi-Adu’s credibility during her cross-examination, not least because (as is apparent from the interchange quoted in paragraph 83 above) he was apparently satisfied that Ms Kofi-Adu was lying when she said that the washing-machine was disconnected from the tap some time prior to August 2003 and remained so thereafter, to say nothing of the other glaring inconsistencies in her evidence to which we have referred.

We make it clear that we do not go so far as to suggest that the judge, having assessed the credibility and reliability of the witnesses, was bound to prefer the evidence of Mrs Aitcheson to that of Ms Kofi-Adu and Mr Osei. It is, after all, trite that issues as to credibility are pre-eminently for the judge at first instance, and not for this court. Rather, our criticisms are directed at the absence of any explanation in his judgment as to why he preferred the evidence of Ms Kofi-Adu and Mr Osei to that of Mrs Aitcheson.

It is important to stress at the outset that, within the bounds set by the Civil Procedure Rules, a first instance judge is entitled to a wide degree of latitude in the way in which he conducts proceedings in his court. However, that latitude is not unlimited. Ultimately, the process must always be the servant of the judicial function of dealing with cases justly (see the overriding objective expressed in CPR 1.1). In an adversarial system such as we have developed in this jurisdiction the discharge of that function requires the first instance judge (as Lord Denning MR put it in Jones v. National Coal Board [1957] 2 QB 55 at 63):

“… to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large ….”

As Lord Denning MR went on to explain, that does not mean the judge is “a mere umpire to answer the question ‘How’s that?’”. Lord Denning MR continued:

“His object, after all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage that ‘truth is best discovered by powerful statements on both sides of the question’? … And Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict’: see Yuill v. Yuill [[1945] P 15 at 20].”

In Yuill v. Yuill the Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent). Lord Greene MR (who gave the leading judgment, with which MacKinnon and Du Parcq LJJ agreed) was at pains to stress that only in the rarest cases will an appellate court take such a course. However, he went on to conclude that such a course was appropriate in that case. The full quotation from Lord Greene MR’s judgment in Yuill v. Yuill is as follows:

“A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge’s examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.”

Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors, and the above observations (made, in the case of Lord Denning MR, almost 50 years ago, and, in the case of Lord Greene MR, more than 60 years ago) must be read in that context. That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel’s submissions) must inevitably carry the risk so graphically described by Lord Greene MR. The greater the frequency of the interventions, the greater the risk; and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one.

It is, we think, important to appreciate that the risk identified by Lord Greene MR in Yuill v. Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge’s descent into the arena (to adopt Lord Greene MR’s description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair.

In the instant case we are left in no doubt that the judge’s constant (and frequently contentious) interventions during the oral evidence, examples of which we have given earlier in this judgment, served to cloud his vision and his judgment to the point where he was unable to subject the oral evidence to proper scrutiny and evaluation. This conclusion is confirmed by his irrational findings in relation to housing benefit and by his complete failure to address the credibility of Ms Kofi-Adu’s evidence in his judgment or to explain why he rejected the evidence of Mrs Aitcheson’s diary sheets. It is also supported by the fact that the references in his judgment to the evidence of the various witnesses are almost all derived from their witness statements, rather than from their oral evidence. Indeed, it is impossible to tell from his judgment what (if any) assistance he derived from the oral evidence which he heard, as opposed to the documentary evidence and the witness statements.

In our judgment, therefore, the manner in which the judge conducted the trial led to a failure on his part to discharge his judicial function. That is not to say, of course, that the decisions which he reached on the issues of nuisance and annoyance (including the issue of reasonableness in that context) might not have been reached following a proper evaluation and scrutiny of the evidence. Plainly, they might. The flaw in the instant case lies not so much in the decisions themselves as in the way in which the judge reached them, in that he allowed himself not merely to descend into the arena but, once there, to play a substantial part in the interrogation of the witnesses. In effect, he arrogated to himself a quasi-inquisitorial role which (as Lord Denning MR explained in Jones: see paragraph 142 above) is entirely at odds with the adversarial system.

Finally, in relation to the judge’s conduct of the proceedings, we find it necessary to express our strong disapproval of the manner in which the judge treated Miss Bhogal throughout the trial, especially during her valiant and courteous (but, thanks to the judge, largely unsuccessful) attempts to open the case in a coherent and ordered way. However, as we have made clear, it is not the judge’s treatment of counsel which is relevant for present purposes. Rather, it is his inappropriate conduct during the course of the oral evidence.

In our judgment, there can be no question of this court making a possession order, as Miss Bhogal invites us to do. Apart from anything else, we would have to be satisfied that as the date of the appeal it would be reasonable to make such an order: a task which we could not possibly discharge. Accordingly, the only relief available to Southwark on this appeal is a retrial.

For obvious reasons, a retrial is always a last resort; and on the face of it to order a retrial of the present claim would appear futile, given that it is open to Southwark to bring a fresh claim for possession based on the then current rent arrears (it will be recalled that the rent arrears amounted to some £6,600 as at 6 February 2006: see paragraph 48 above) and, if so advised, on nuisance and annoyance. The more so since on a retrial the court would be concerned with the factual situation as at the date of the retrial. So a retrial would to that extent be on all fours with a fresh claim. On the other hand, the effect of ordering a retrial would be that, in inviting the court to make a possession order in the light of the factual situation as at the date of the retrial, Southwark would not be bound by the findings made by the judge in the judgment under appeal.

If a retrial were ordered it would, of course, be a matter for Southwark to what extent (if at all) it would wish, in support of a claim based on nuisance and annoyance, to rely once again on the evidence of Mrs Aitcheson – evidence which will inevitably be extremely stale by the time any retrial takes place. On the other hand, on a retrial of the claim based on rent arrears Southwark would clearly be in a better position than if it were to bring a fresh claim in that it would not be bound by the judge’s findings in relation to housing benefit.

In all the circumstances, we conclude that it is appropriate to order a retrial in this case. We can see no reason why, on any renewal of its application to the court for a possession order, Southwark should be in any way hampered by findings made in the judgment under appeal; a judgment which, for the reasons given earlier, is fundamentally flawed.

We allow this appeal, and order a retrial. The retrial must take place before another judge.