Sharing, R (on the application of) v Preston County Court

MR JUSTICE WILKIE: This is, in many ways, a deeply troubling case. It is an application for judicial review following the decision of a circuit judge, sitting at the Preston County Court, on 22 November 2010. He refused the claimant, Kimberley Sharing, permission to appeal against a judgment of District Judge Park given on 28 June 2010 where, under the fast-track procedure, he dismissed her claim against her erstwhile landlord, Gary Tomlinson, and upheld his counterclaim in respect of rent and/or deposit due endowing.

The procedural context of such an application for judicial review is that a judicial review quashing a decision of a circuit judge in relation to such a decision is a wholly exceptional remedy, to be granted only in the rarest of cases. The authorities have recently been considered and pulled together in the case of the Queen on the application of Strickson v Preston County Court & Ors [2007] EWCA Civ 1132, and in particular at paragraph 32 in the leading judgment of Lord Justice Laws, with whom Lord Justice Gage and Lord Justice Rimer agreed. Lord Justice Laws indicated that from the authorities it became apparent that before a judicial review could be granted a defect much more fundamental than an error of law in the particular case had to be established, and at paragraph 32 he expressed himself thus:

Lord Justice Laws at paragraph 35 said, amongst other things, as follows:

In considering this application for judicial review I must therefore be, as Lord Justice Laws puts it, vigilant to see that only truly exceptional cases -- where there has indeed been a frustration or corruption of the judicial process -- are allowed to proceed to judicial review.

The claim giving rise to these proceedings was commenced on 1 February 2010. The brief details of the claim are said to be, "For compensation for unlawful eviction...". The particulars of claim cited the implied term of quiet enjoyment of the property, which had been let by the defendant to the claimant. It was said that the defendant was in breach of that term and had unlawfully evicted the claimant, harassed her and trespassed to her property.

The particulars were then set out. They included allegations that on a number of occasions the landlord had obtained access to the property by using a key without invitation; on one occasion, when she was asleep, and when she woke she found the defendant standing there, demanding her rent be paid. The particulars also alleged, as indeed seems to be borne out by the police records, that she complained to them about the defendant's behaviour and was advised to put bolts on the entry door, which she did.

The particulars then went on to allege that on a date which was unidentified, but which appears to have been 15 December 2009, the claimant having fitted bolts to the door, the defendant attempted to gain entry using his own key and, finding that the way was barred, barged through and broke the bolts off the door. Following upon that, the police attended and, according to the claimant, the police suggested that she would have to leave the flat as she was not able to pay the rent. Accordingly, she cleared the property of her belongings and left. That last incident and its aftermath appears to be the allegation of unlawful eviction.

The claim was hotly disputed. It was said, in effect, that the claimant had always been in arrears with the rent and had failed to pay the requisite deposit. The defendant denied ever having entered the property without giving her notice and without her permission, and in particular did not do so on the occasion described in the particulars.

The defence contended that he did not barge his way in on that occasion, and this is supported by the police and an independent witness, Tracy Morley, who was with him at the time. Tracy Morley was a tenant of another flat within the defendant's property. The defence goes on to claim that the claimant left the property of her own accord and without interference. She having vacated the property -- and having, as he put it, "trashed it" -- he changed the locks on 19 December.

The claim was heard by a district judge and no criticism is now made of the district judge; either the way in which he conducted the hearing or, on the evidence that the district judge heard, his entitlement to come to the conclusions that he did.

The transcript of the hearing before the district judge reveals that early on in the hearing the district judge, whilst engaged in managing the case, raised the question of whether a police officer, WPC Dempster, who had attended the premises and the contents of whose notebook were in the trial bundle and from whom a witness statement had been taken and submitted as part of the trial bundle by the defendant, was in attendance. The defendant, Mr Tomlinson, who by that stage was acting by himself, indicated to the judge that WPC Dempster had given a signed statement, but that he understood through his wife that she was not available. The judge asked whether the defendant had issued her with a witness summons and Mr Tomlinson said, "My wife did, yes."

The judge then asked when it had been served and Mr Tomlinson said he did not know, but he had got a message that morning to say she was unavailable. The judge then said that if he had issued a witness summons and could prove that it had been served, that would be reasonable grounds for an adjournment. Mr Tomlinson then said that he understood that she was caught up in an inquiry, or she is on leave. The judge then pointed out that if there was a witness summons which she had received but had not attended then that would potentially be a contempt of court, at which point Mr Tomlinson said that he left it to his lawyer and did not know the ins and out. Mr Tomlinson then said that he was happy to go ahead with the statement.

There is no suggestion in the transcript that at that stage counsel acting for the claimant asked for an adjournment. It is now clear from a second witness statement, which has been produced by WPC Dempster, that Mr Tomlinson lied to the district judge when suggesting that a witness summons had been issued and/or served, and/or that he had received information that WPC Dempster was unavailable because she was on leave or on another inquiry. Indeed, WPC Dempster in her second witness statement recorded that the police had not receive any witness summons, neither had she, and that in fact on the day of the trial she was available and at the police station a matter of minutes from the court.

The trial, however, proceeded. Live evidence was given by the claimant, her boyfriend and her grandparents. Evidence was called by Mr Tomlinson, who gave evidence himself, and called Ms Morley. In addition, the district judge, as he was entitled to do, relied on evidence in the form of the witness statement of WPC Dempster.

Given the nature of the various contentions, and in particular the different version of events of the incident on the evening of 15 December, the judge had to form a view as to the credibility of the accounts given in respect of the claimant and the defendant. There were a number of side issues, one of which in particular related to the question of deposit, another of which related to housing benefit. Yet another related to the question of whether the boyfriend of the claimant had been the subject of an assault by the defendant, or had alleged such an assault.

The learned district judge, under the heading of "Findings", began that section of his judgment by commenting that he did not find either of the parties particularly open or convincing. He said the claimant was manipulative and he had little doubt the defendant could be both aggressive and abusive. He then proceeded to make a series of findings and it is clear to a person reading the judgment that he was concerned only to make findings either in favour of one or other of the parties where he felt that there was credible independent evidence to back it up and he was not prepared to make findings in favour of either the claimant or the defendant only on their own account.

In particular, in relation to the question of the paying of the deposit, he made very clear and adverse findings contrary to the claimant's case. He did so based on independent evidence. That therefore meant, in effect, that the claimant had a credibility problem. He made a finding that the claimant either had not paid rent or did not intend to pay the rent out of her own resources, but he reminded himself that failure to pay a rent or deposit did not permit the defendant to enter into a course of conduct designed to bring -- and which actually results in bringing -- the tenancy to an end by making it impossible for the claimant to stay. He then pointed out that the claimant's allegations in that regard were at the nub of the case and, in his judgment, she had failed to establish that those allegations were true.

In so doing, the judge importantly stated that he accepted Ms Morley's evidence as being essentially true and he also had regard to the fact that the police evidence favoured the defendant, having regard to whatever weight could be attached to it, bearing in mind, as he had reminded himself, that it could only have limited evidential force.

The relevant evidence of WPC Dempster on this issue was that she did not support the claimant's claim that she had advised her to leave the premises. She had said that the defendant denied that he had assaulted anybody, but confirmed that he was at the claimant's property to collect rent which he said was outstanding. WPC Dempster, in her first witness statement, made it clear that at no time during her presence at the premises did the defendant say or do anything which would have suggested to the claimant that she had to leave, either that night or at all, and every effort was made by the defendant to assure the claimant that she was welcome to stay.

She also gave evidence that there were, by the stage she had attended, others at the premises including her brother, who had also advised the claimant she was under no obligation to leave the property that night or at all, and that there were at least two other people present who gave similar advice to the claimant, but she nonetheless indicated that she wished to go.

The witness statement of Tracy Morley was to the effect that the defendant had asked her to accompany him to the claimant's flat because he wanted to speak to her about the tenancy. She was present when Mr Tomlinson knocked on the claimant's door, there was no answer but there was shouting from the inside. After a couple of knocks, the claimant and her boyfriend flung open the door and screamed abuse at the defendant and herself. She also claimed in her evidence, in her witness statement, that on previous occasions the claimant had indicated that she had intended to leave the flat and make a claim against the defendant for illegal eviction, that it was easy and she had done it before.

In her evidence before the district judge, Ms Morley had been cross-examined and, in particular, the contents of the police officer's notebook were put to her. That notebook appeared, on the face of it, to record that the defendant had stated that he had broken in but he had a right to enter the premises for overdue rent, and that he had broken the claimant's fastening which was poorly affixed, and that it was his door which had got cracked. When this was put to Tracy Morley, she said that she had been right there when the door was opened and that it was not Mr Tomlinson who opened the door and that he certainly did not barge in.

She also gave evidence in cross-examination that she had been interviewed by a woman police officer on her own and that she thought that Mr Tomlinson had already been spoken to by the police. When she was asked about the claim that the claimant had said she was going to engineer a false unlawful eviction claim against the defendant, she rather resiled from that and indicated that what the claimant had said to her was that it was easy to get away with not paying the rent, saying, "Just don't pay it" and that she had done it before.

Given the way in which Ms Morley had given her evidence, and the fact that the written evidence from WPC Dempster was inconsistent with a contention that there had been an unlawful eviction rather than a voluntary leaving the premises against the advice of her family and friends, the district judge concluded that the claimant's claim failed on the grounds that she had failed to prove on the balance of probabilities that her landlord behaved as she had alleged.

There was a notice of appeal issued, which required the permission of the court to launch into an appeal. That is quite a voluminous document and goes into a great deal of analysis of the minutiae of the evidence, but the only relevant point for the purpose of this hearing is that it was said that there was now fresh evidence to be adduced which was not available to the lower court, and that it would have had an important influence on the result of the case, in particular effecting the credibility of the defendant.

Attached to the notice of appeal was a skeleton argument which included a summary of the law in relation to fresh evidence, namely that the evidence must be such that it would probably have an important influence on the result of the case, although it need not be decisive, and that it could not have been obtained with reasonable diligence for use in the trial.

That fresh evidence was in the form of a second witness statement of WPC Dempster. It included evidence in paragraph 3, to which I have already referred, that WPC Dempster had not been witness summonsed but had been available to attend court if so required on the date of the hearing before the district judge. In addition, in paragraph 5, she refers to the notes which were in the notebook which was before the district judge as part of the bundle. She says that those notes were made by her during an interview she had with the defendant, in the presence of a female who at the time she believed to be the defendant's partner, because of the way that she related to one another. They did not appear to her to act like a landlord and his tenant, but she now understands that the female was in all likelihood the tenant of one of the other flats at the premises, namely Tracy Morley.

At paragraph 6, she says that the defendant admitted to her that he had let himself into the claimant's flat that evening using his own key, claiming that he had a right to do so because of rent that was overdue and owing to him. He had admitted that he had broken a chain fastening which he said was poorly affixed, and claimed that it was his door that had got damaged. WPC Dempster goes on in her witness statement to say that she remembered seeing a bolt on the door of the claimant's flat which clearly had been forced, but it was very small and would have been more suited to securing a rabbit hutch rather than a main door to a flat. They were fixed with very small, short screws which had been forced away from the door and the door frame. Quite probably, the door could have been opened and the bolt forced away from the door and door frame without the person opening the door even knowing that had happened.

In addition, she said that she would like to repeat the comments that she made in her first statement regarding the claimant deciding to leave the property that night. Her understanding was that there had been an agreement reached between the claimant and the defendant that she would agree to leave the property if the defendant agreed not to pursue her for unpaid rent. However, there was no pressure put on the claimant to leave the property that night and the decision to do so was hers and hers alone, and was done against the advice of most other persons present.

The application for permission to appeal was heard on 22 November 2010 before His Honour Judge Appleton, and I have the benefit of having the full transcript of that hearing. I will return to that transcript later. At the end of the hearing, the judge gave a short judgment. He first of all dealt with the question of extending time for the application for permission, which he granted. He then said that it was a plain and straightforward situation where the judge had listened to the case for the whole day and produced a reserved judgment, and had come to the conclusion that he did not accept the claimant's case because he did not accept that she or her boyfriend were believable. He then comments on the very lengthy nature of the appellant's notice.

Then, at paragraph 5, he turns to the question of fresh evidence. He says as follows:

The learned judge then goes on to say that it was true that the district judge had expressed reservations about both the claimant and the defendant, but he then goes on to deal with the way in which the district judge had dealt with the deposit issue. He records the fact that the judge had then gone on to say that failure to pay rent or a deposit does not permit the defendant to enter into a course of conduct designed or actually resulting in bringing the tenancy to an end. He reminds himself also of what the judge said about Ms Morley's evidence, that he did not think -- having seen and heard her in cross-examination -- that she had been telling lies.

Finally, he reminded himself that the district judge had concluded that, having found against the claimant on the issues of payment of deposit and the events of 15 December, her credibility in respect of her other allegations must be in doubt. Hence, he found the allegations were not true.

His Honour Judge Appleton then went on to say this:

Mr Stark, in support of the claim for judicial review, has effectively focused on three issues. The first is the fact that Mr Tomlinson plainly, on the transcripts, told a lie to the district judge about the availability of WPC Dempster and the circumstances where she was not to be called live. It is said that this lie is revealed by WPC Dempster's second witness statement and, as such, must be admissible as fresh evidence on that ground alone. Clearly it could not have been available at the trial and it is said that it reveals Mr Tomlinson to be a liar and, accordingly, affects the credibility of his evidence, the assessment of which the district judge had to make. On that basis, it is said that His Honour Judge Appleton must have admitted that evidence.

His Honour Judge Appleton did not address that particular aspect of it explicitly in his judgment. In my judgment, that on its own really does not get the claimant home in this type of challenge. The district judge had already formed an adverse view of the credibility of both claimant and defendant and was plainly unwilling to make any finding in either of their favour where there was not independent evidence to support it. The fact that Mr Tomlinson was found out in yet another lie does not, in my judgment, add substantially to the weight of a point which the district judge already had in mind.

However, Mr Stark also says that judge Appleton has stepped over the line and that this truly is a case where it is not just that he has got it extremely wrong, but that the judicial process itself has been frustrated or corrupted. That, essentially, is because of the way in which he conducted the hearing, as evidenced from the transcript. He has taken me very carefully through the transcript and it is right to say that he gave counsel who appeared for the claimant an extremely rough ride. He did not permit her to develop the main point that she wished to make, namely to focus on the second witness statement of WPC Dempster. The learned judge repeatedly said that the case had been won or lost because the district judge had not believed the claimant, essentially because of the lies she must have told in relation to the deposit and also because of the fact that Ms Morley's evidence was believed by way of contrast.

It is said that the learned judge has, effectively, revealed to the claimant -- and to any fair-minded or interested party -- that he had already, finally, made up his mind about the case and that it was not going to go any further, and that the aggressive way in which he interrupted the claimant's counsel repeatedly and failed to permit her to develop the point that she wished to make evidences, or gave rise to, an apparent bias on his part.

The high point of that, although it is by no means the only place where he says this, is that when Miss Cawsey for the claimant explicitly asked that the fresh evidence of WPC Dempster be brought into court he said:

The point which Miss Cawsey was trying to make -- and which, in the end, she articulated -- was that PC Dempster's second statement:

In effect, what the second witness statement of WPC Dempster records as her evidence is an admission by Mr Tomlinson that he had broken down, or broken through, the door and that, therefore, his evidence that he had not done so was false or, at any rate, inconsistent with what he had told WPC Dempster on the night. Furthermore, that evidence would place a wholly different light on the evidence of Ms Morley to the effect that she had been present with Mr Tomlinson and had observed that he had not opened the door, as alleged by the claimant. Thus, the evidence of WPC Dempster to that effect would potentially have undermined the evidence both of the defendant and of Ms Morley, the credibility of whose evidence was explicitly said to be crucial to the conclusion of the district judge as to who was telling the truth about 15 December and, by way of consequence, whether the claimant was telling the truth about other earlier incidents about which she had claimed to the police.

Mr Stark has tried to suggest to me that the way in which the learned judge dealt with the issue of fresh evidence in his judgment was, on its own, sufficient to entitle this court to quash his decision, on the basis that it evidenced a total failure to enquire or adjudicate upon a matter which it was his unequivocal duty to address. In my judgment, that submission cannot be right. It is clear from the judgment of His Honour Judge Appleton that he did address the question of fresh evidence, the fresh evidence of WPC Dempster, and he did address the question of its importance to the case. He did articulate why it was that he was ruling against that fresh evidence because of, firstly, her own dishonesty in relation to deposit and, secondly, the evidence of Tracy Morley whose evidence was devastating of the claimant's case.

However, Mr Stark also puts the case on the basis that the way in which His Honour Judge Appleton conducted the hearing -- the way in which he made plain as plain could be to the claimant and to any impartial bystander that he was not minded to have regard to fresh evidence because of his very firm and fixed view that she had lost the case because the district judge found her to be a liar and that she had lost the case because the district judge believed Ms Morley -- that this was a judge who was not minded to give anything like a fair consideration to the claimant's application.

In my judgment, and with very great hesitation and regret, I have been forced, by reading the transcript of the hearing, to conclude that His Honour Judge Appleton did act in such a way that a fair-minded and independent bystander would conclude that he had finally and firmly made up his mind from the outset of the application that he was going to refuse it, that he was going to refuse to admit the fresh evidence of WPC Dempster, and that his repeated interruptions of the claimant's counsel and the way in which he focused on the way in which the district judge had decided the case, was the clearest possible evidence of that apparent bias.

I have considered long and hard whether if, notwithstanding my conclusion, I should refuse the relief sought, namely to quash the decision and require a different circuit judge to consider the application for permission to appeal based on the claim that there is fresh evidence in the form of the second witness statement of WPC Dempster, on the ground that the bottom line of her evidence remains, as it was initially, that on the night of 15 December the claimant voluntarily left the premises, notwithstanding the fact that she was receiving advice from all and sundry that she did not need to do so and notwithstanding the fact that WPC Dempster says that the defendant was saying that she did not need to leave. That evidence is very damaging to the claimant's case, at least insofar as it is a claim for unlawful eviction. It, of course, does not necessarily invalidate her claims in respect of harassment and trespass relating to events prior to 15 December or, indeed, trespass in relation to 15 December itself.

But I have concluded that it would be wrong of me to exercise my discretion to withhold the remedy which otherwise the claimant is entitled to, namely that the decision of His Honour Judge Appleton to refuse permission to appeal on the grounds of fresh evidence should be quashed and that the question on whether there should be permission to appeal should be remitted to a different district judge for consideration of that issue. No doubt, however, that issue, whether, ultimately, a claim for unlawful eviction has any real prospect of success on appeal, is something which the circuit judge will need to consider. No doubt a transcript of this judgment will be made available to him on that occasion.

MR STARK: My Lord, the only issue arising is the question of costs. I have to admit, I have never previously made an application against a County Court in that regard, but it seems to me that, obviously in light of my Lord's findings --

MR JUSTICE WILKIE: Is your client --

MR STARK: She is legally aided.

MR JUSTICE WILKIE: She is legally aided. Well, I will certainly give you an order for assessment of your costs.

MR STARK: My Lord, the only thing --

MR JUSTICE WILKIE: The County Court has not, in fact, taken any part --

MR STARK: It has not taken any part in these proceedings, and it does not normally ever take a part in such cases either.

MR JUSTICE WILKIE: No.

MR STARK: Perhaps if I could crave my Lord's indulgence and that if I am going to make any application for costs I should need to do it within a very short period of time. It does occur to me that I do not want to make an application that is not appropriate in the normal circumstances, but I do not want to abandon it because I also have to have regard to the Legal Services Commission.

MR JUSTICE WILKIE: Yes.

MR STARK: (Inaudible) will say that one arm of the Ministry of Justice should be paying the other potentially, in that regard.

MR JUSTICE WILKIE: Of course, the interested party has not played any substantive part either.

MR STARK: No, and in light of the fact that -- may I just take instructions?

MR JUSTICE WILKIE: Yes.

MR STARK: The other reason why, my Lord, it may be appropriate for me to make an application against the Ministry of Justice is this: that obviously I bear in mind my Lord's observations, but if Ms Sharing obtains permission to appeal and convinces another trial judge that she was maligned, perhaps I could say, in relation to the first hearing and convince another trial judge that what she is saying is correct, that she will be facing a statutory charge in relation to the costs of these proceedings if she does not obtain an order against either Preston County Court or Mr Tomlinson. Now, I accept in relation to Mr Tomlinson the difficulty is that it is not his behaviour that has given rise to my Lord's finding.

MR JUSTICE WILKIE: Yes.

MR STARK: But I will ask for permission that if I am going to make an application for costs against Preston County Court to do it in writing within seven days, on notice to them.

MR JUSTICE WILKIE: Yes.

MR STARK: So, if the Ministry of Justice wishes to make any representations on that then they can do so.

MR JUSTICE WILKIE: Yes, I think that is probably the best way. I will make an order for detailed assessment of your legal aid costs. I will give you permission to apply in writing, if so advised, for an order for costs against the defendant, if so advised, within seven days and upon giving written notice to the Ministry of Justice for that application.

MR STARK: I am grateful. My Lord, I think otherwise you have quashed the decision and remitted it to the Preston County Court?

MR JUSTICE WILKIE: Correct.

MR STARK: To be heard by another circuit judge. I think His Honour Judge Appleton has actually retired since this, so it may be there will not be any issue in any event.

MR JUSTICE WILKIE: Yes. Right, thank you.