North Devon Homes Ltd. v Batchelor

With permission granted on paper by Rimer LJ on 9 May 2008, the appellant, North Devon Homes Limited, appeals against an order made by His Honour Judge Neligan, sitting in the Torquay and Newton Abbot County Court on 13 February 2008. The appellant, which was the claimant in the court below, is a registered social landlord, and had sought an order for possession of premises at 15, Jubilee Close in Ilfracombe (the premises) of which the respondent to this appeal (who was the defendant to the proceedings before the judge) was the tenant under an assured tenancy agreement commencing on 15 May 2005. The current rent of the premises at the date of the hearing before the judge was £58.89 per week, and the arrears as at 11 February 2008 were £2,246.71.

The appellant’s claim in the court below was brought pursuant to Grounds 10, 12 and 14 of Part II in Schedule 2 of the Housing Act 1988 (the 1988 Act). Pursuant to section 7(4) of the 1988 Act, proof of any one of these Grounds enables the court to make a possession order “if it considers it reasonable to do so”. Ground 10, in summary, relates to arrears of rent; Ground 12 relates to breach or non-performance of “any obligation of the tenancy (other then one related to the payment of rent)” and under Ground 14, possession may be granted where: -

The judge dismissed the claim under Grounds 12 and 14. He adjourned the appellant’s claim for possession based upon ground 10 to a date in March 2008 at which the respondent was expected to make realistic proposals for the payment of arrears of rent. He refused permission to appeal.

This appeal is limited in its scope. It is not concerned with the judge’s order in relation to arrears of rent. However, the appellant challenges the judge’s dismissal of the claim for possession based on Grounds 12 and 14. It invites this court to say that the judge was wrong to decide that it was not reasonable to make possession order, and rather than ordering a re-trial, it submits in paragraph 15 of counsel’s skeleton argument that this court can and should both make a possession order, and decide whether that order should be outright, suspended or postponed.

The premises are part of a 22 property sheltered housing scheme. The respondent herself is aged 61 and not in good health. Attached to her defence in the proceedings is a medical report which describes her condition as at 25 July 2007.

It can, I think, properly be said – indeed, it was found by the judge and is not the subject of challenge in this court - that there was a paucity of admissible evidence before the judge in support of the appellants’ claim for possession under Ground 14(a) and 14(b)(i). However, the judge summarised the position accurately in paragraph 3 of his judgment, when he identified the factual basis upon which the appellant advanced its case against the respondent under Grounds 12 and 14(b)(ii) namely:-

her conviction before Exeter Crown Court on May 2007 of possession of 7.5 grammes within 76 wraps or thereabouts of cocaine, a controlled drug of Class A with the intent to supply it, and also of money laundering. She pleaded guilty to possession of the cocaine with intent to supply, upon the specific basis that she had been asked to hold the drugs for her son and had agreed to do so intending to hand them back to him. However, she was prevented from doing so by the arrival of the police on 22^nd September 2005 to execute a search warrant at the flat. Conversely, the jury convicted her of having laundered about £1600 on two specific occasions. The £1600 was part of a larger sum of £27,000 which had been laundered, not necessarily by her, over about a three month period. She had also pleaded guilty to a specific offence of possession of cannabis. She was sentenced to eighteen months imprisonment to run concurrently on the offences of possessing cocaine with intent to supply and on money laundering, with no separate penalty being imposed for the possession of the cannabis.

When the proceedings were issued, the respondent was in HMP Send, but as the judge records in his judgment, between 8 January 2008 (when she gave evidence in the possession proceedings before him) and 14 February 2008, when the judge delivered his judgment, she had been released from prison on licence and was back living in the premises. She gave oral evidence to the judge who, in paragraph 18 of his judgment, said: -

Insofar as a factual comparison has to be drawn between the tested evidence of (the respondent) and the untested evidence of (the appellant’s) witnesses on issues of dispute then of course I prefer the evidence of (the respondent).

Much of the judge’s judgment is taken up with a consideration of the respondent’s alleged anti-social activities as described in the particulars of claim. However, I do not think that I need take up time on this part of the case because; (1) the judge in paragraph 24 of his judgment states in terms that he was not satisfied on the evidence, or rather the lack of it, that the appellant had proved its case on the balance of probabilities under Ground 14(a); and (2) in its skeleton argument no issue is taken by the appellant with the judge’s dismissal of the claim for possession in so far as it is based on the respondent’s alleged anti-social behaviour resulting from nuisance, annoyance, inconvenience or harassment caused to neighbouring residents. Similarly, there is no challenge to the judge’s dismissal of the claim under Ground 14(b)(i).

However, the judge found that the appellant had established its case on Grounds 12 and 14(b)(ii). In relation to the conviction for possession with intent to supply, the judge expressed himself as follows:-

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In my judgment that plainly falls within Ground 14 I find that it is also a breach of clause 3.2.15 of the Tenancy Agreement, by which the (respondent) agreed not to use the premises for an illegal activity. Examples of illegal activities given in clause 3.2.15 are selling drugs or storage of stolen goods. But it would be absurd to suggest that keeping illegal drugs on the premises with the intention of supplying, that is passing them on, to someone else was not an illegal activity within that clause, any more or less than possessing illegal drugs with the intention of giving them away would be an illegal activity.

In relation to the respondent’s conviction for money laundering, however, the judge found on what he described as “the limited and unsatisfactory facts” before him that this conviction did not fall within either ground 12 or ground 14. There is no appeal against the judge’s finding on this point and I need say no more about it.

Having found that grounds 12 and 14 had been established in the terms I have set out, the judge then turned to consider whether it was reasonable for him to make a possession order. He cited section 7(4) of the 1988 Act and the factors he was required to consider under section 9A(2). He also recorded the appellant’s argument that Jubilee Close was sheltered accommodation reserved for the less robust members of the community, and its submission, based on the respondent’s evidence in cross-examination, that “maybe” she would continue to use cannabis on the basis that it alleviated her physical condition. On this basis, he recorded, the appellant had argued that in any event there would be a continuing breach of the tenancy agreement.

After extensive citation of authority, and in particular of the decision of Lloyd J (as he then was) in Stonebridge Housing Trust v Gabbidon [2002] EWHC 2091 (Ch) (Stonebridge) the judge reached his conclusion on Grounds 12 and 14 in paragraph 34 of his judgment in the following terms:-

Mr James (counsel for the respondent) argued that once the Court puts on one side, as it has to do, and as I have done, the complete absence of satisfactory evidence produced to establish nuisance or annoyance and looks at the defendant’s conviction for possession of 7.5 grammes of cocaine with intent to supply, this court must, as the Crown Court had to do so, accept the defendant’s basis of plea, namely looking after it for her son, intending to hand it back to him on one occasion only in September 2005. Whilst I would not necessarily agree with Mr James that this was merely a technical offence, I would nonetheless agree that in gradation of seriousness it is at the lower end of the scale of possession with intent to supply a Class A controlled drug. Insofar as the possession of cannabis is concerned, whilst of course this remains a criminal offence now of Class C, if every tenant of a dwelling house within the public sector was to be visited by a possession order because it was reasonable to make one, the courts would inevitably be swamped with such claims. The facts of this case as presented are wholly different from those in the Musah case and those in the Stonebridge Housing case. Having considered the available evidence and the arguments I do not therefore consider that it would be reasonable to make an order for possession under either Grounds 12 or 14 in this case. (Emphasis supplied).

(The judge’s reference to “the Musah case” is to the decision of this court in City Council of Bristol v Martin Musah (1997) 20 HLR 32.)

The judge concluded his judgment with this paragraph: -

39.

Finally, I think I should say this. Had the claimant’s case been more focused, and better prepared for trial than it had been on calling the necessary evidence to support the allegations in sub-paragraph 13.1 and 13.2 of the amended Particulars of Claim, the decision might, I use the word might, have gone very much the other way, but the lack of it in my judgment leads to the result of the dismissal of those allegations. So I adjourn to the week 11-14^th March for the claim for possession under Ground 10.

In its grounds of appeal, the appellant takes three points in support of its submission that the judge was wrong not to find that it was reasonable to make an order for possession on the facts of the case. Each relates to a factor which it is said the judge either took into account or failed to take into account.

The first ground of appeal is that the judge took into account an irrelevant matter, namely that identified in the highlighted part of paragraph 34 of the judgment, which I have set out in paragraph 12 above.

The second ground is that the Judge failed to take into account a relevant matter, namely the fact that the respondent had ignored oral and written warnings about her conduct from the appellant prior to the police raid on 22 September 2005, which resulted in her convictions for possession of cocaine with intent to supply and of cannabis resin for personal use. In this respect, Mr. Treneer relied on a letter from the appellant to the respondent 9 September 2005, which is not in our papers. However, the relevant terms of the letter are set out in paragraph 12 of Mr. Treneer’s skeleton argument, and read: -

You will remember that I visited you on 5 August 2005 following several complaints that had been made by those living around you. You will remember that one of the complaints was that you were having a steady stream of visitors to your home and it was alleged that you were involved in drug dealing or using. I am continuing to receive complaints about the number of visitors you have visiting you during the day.

Thirdly, it is said that the judge failed to deal with the issue of the respondent’s evidence that she would continue to smoke cannabis and thus remain in breach of her tenancy agreement. The judge had thus further failed to take account of a relevant matter. All he had done was; (1) to refer to the respondent’s evidence in cross-examination when she had said that “maybe” she would continue to use cannabis for medicinal purposes; and (2) to comment that “during her evidence she seemed to be saying that cannabis was prescribed for her which was neither factually accurate or truthful”.

As these were the only grounds advanced in the appellant’s notice, I propose to deal with them seriatim. In my judgment none of them, whether considered individually or cumulatively, has the effect for which Mr. Treneer argues, namely to demonstrate that the judge was wrong to reach the conclusion that it was not reasonable to make an order for possession in this case.

As to the first, Mr Treneer asserted that the judge’s comments were irrelevant in that they went to the consideration of whether or not, or to what extent, rehousing would be available if a possession order was made. Basing himself on paragraph 15 of Lloyd J’s judgment in Stonebridge, Mr. Treneer submitted that what the judge was doing was engaging in “illegitimate speculation” as to whether the respondent would be re-housed if she was to made the subject of an order for possession.

In oral argument, Mr. Treneer submitted that smoking cannabis was a criminal offence: it was not to be condoned, and that if there were to be a radical increase in applications for possession based on such a criminal activity, the function of the courts was to uphold the law, and judges should not be perceived as condoning illegal activities.

Speaking for myself, I do not agree with Mr. Treneer’s interpretation of this passage from the judge’s judgment. As I read the passage, the judge is not engaging in the illegitimate exercise of speculating as to whether or not the respondent would be rendered homeless. All it seems to me that the judge is saying – albeit in somewhat colourful language – is that on the facts of this particular case he did not regard the respondent’s conviction for possession of cannabis (in relation to which no separate penalty had been imposed) as being of sufficient seriousness to warrant the making of a possession order. Had I being trying the case, I might or might not have reached the same conclusion. But that is not the test. The question is whether or not the judge was plainly wrong to reach that conclusion.

In my judgment, the conclusion reached by the judge on this first point is one which, on the facts; (a) was open to him; and (b) was for him to make. It thus does not vitiate his overall conclusion. I therefore have no hesitation in rejecting the appellant’s case on its first ground of appeal.

As to the second point, I read the letter of 9 September as addressing the stream of visitors and the allegation that the respondent was dealing in drugs, and thus going to Ground 14(a). However, the judge had rejected the appellant’s case on the role of the visitors (and the rejection is not challenged). It is not suggested by the appellant that the evidence warranted a finding that the respondent was dealing in drugs. The conviction for possession of cocaine with intent to supply was dealt with by the judge (and again this is not challenged) by reference to the basis of the respondent’s plea of guilty, which – as already stated - was to the effect that she had discovered the drugs, for the first time, only hours before the police raided, and that she intended to hand them to her son in order for him to dispose of them.

Accordingly, as it seems to me, the terms of the letter are not directed to issues of which the appellant makes complaint on this appeal. The reference in the letter to “using” seems to me to relate, in context, not to the respondent’s possession of cannabis but to the stream of visitors and alleged dealing in drugs, neither of which was established, and neither of which is thus relevant to this appeal.

Even if, however, I am wrong about that, and a specific reference to the respondent’s use of cannabis can be read into the letter, the result is the same. The judge was not satisfied that the respondent’s use of cannabis warranted the making of a possession order. The fact that the Respondent may have received a somewhat Delphic warning about it is, in my judgment, peripheral, and does not vitiate the judge’s essential conclusion.

In my judgment, therefore, the complaint that the judge failed to take the letter into account has no force, and the second ground in the appellant’s notice fails.

As to the third point, the difficulty here is that the respondent dealt with the question of continuing to smoke cannabis in evidence in several places and in different ways. Her final words on the subject appear in a renewed cross-examination by Mr. Treneer, which the judge permitted when, at the judge’s request, the respondent’s pre-sentence probation report surfaced during the course of the hearing. Mr. Treneer put passages of the report to the respondent, and the following exchange occurred:

Earlier, in re-examination, the following exchange had occurred: -

In my judgment, these two passages have to be put into the scales along with the “maybe” elicited by Mr. Treneer, to which the judge refers. It is, of course, unfortunate that the judge does not appear either to have made a finding on the point, or, indeed, otherwise to have dealt with it. However, it is plain to me that this court could not possibly make the finding of fact sought by Mr. Treneer, namely that the respondent would continue in breach of her tenancy agreement and would continue to commit the criminal offence of smoking cannabis. If this point has any force, therefore, the only course open to us would be to remit the matter to the judge for him to address it.

Speaking for myself, I do not think that this would be the right course. I have already made it clear in relation to the first ground of appeal that in my view the judge was entitled to take the view that the smoking of cannabis by the respondent, on the facts of this case, was insufficient to make it reasonable for a possession order to be made, and even if, on remission, the judge made the “maybe” finding, it would not, in my judgment, affect his overall analysis.

I would therefore dismiss this appeal. Given the limited nature of the appellant’s challenge to the judgment, I do not think it necessary to examine the authorities which were put to the judge and which he himself considered. There is no perversity challenge to the judgment, although in oral argument Mr Treneer sought to say that if the judge’s decision were permitted to stand, the wrong message would be given out.

In my judgment, there are two short answers to that submission, although neither is strictly necessary for the determination of this appeal. The first is that if there is a message in this case (and speaking for myself the case seems to me to turn on its particular facts and to raise no point of principle) it is that actions for possession are serious and regard must be had to the facts of the particular case. As I see it, the judge paid careful attention to the particular facts and weighed them up meticulously. The second follows from the first, namely that, on the particular facts of this case and as the case was presented to him, the judge was entitled to deal with the respondent’s convictions as he did, and he was thus entitled to hold, as he did, that the respondent’s breaches of her tenancy agreement did not bring her within the scope of this court’s decision in Bristol City Council v. Mousah: or, to put the matter another way, that they were not such as to make it unreasonable for the judge, to decline to make a possession order.

That being the case there is, in my judgment, no basis upon which this court can properly interfere with the judge’s order, and I would dismiss this appeal.

I agree.

I also agree. The question whether it was reasonable to make an order was a question of evaluation of the facts. Where a conclusion of a question of fact involves evaluating all the relevant evidence on a particular issue, this court would not interfere with that evaluation, unless it is plainly wrong: see, for example, Cresswell vHodson [1951] 2 KB 92 at 97 per Singleton LJ.

There is of course an important link between the second and third grounds of appeal. The judge had to consider whether there was a possibility that Mrs Batchelor would repeat the conduct, which was the basis of the relevant convictions, namely the possession of cocaine and cannabis. The plea accepted by the court by which she was convicted was that the possession of cocaine was not for personal use, but because her son had left the substance in her flat without her permission. In other words, there was no basis for treating her as a supplier or user of that substance. Moreover, the letter she had received from the appellant before the offence was committed did not give any real warning against possession of drugs, and in addition, the judge accepted, by implication, her evidence that he did not intend to possess cannabis in the future in spite of the fact that she had a medical condition for which she had found it useful.

The real problem in the case was that the appellant failed to prove that Mrs Batchelor had committed the serious acts of nuisance, which it also relied. Thus by the time the judge gave his judgment the case was a very different one from the one on which the appellant had opened. The judge had to proceed on the basis that the nuisance allegations failed and were not relevant to the question whether it was reasonable to make a possession order.