London Borough of Southwark v Adatola Erekin

I have before me today an appeal brought by the Mayor and Burgesses of the London Borough of Southwark against a decision of His Honour Judge Cottran given on 20th January 2003 by which he refused to make a possession order in respect of premises occupied by the first respondent, Adatola Erekin, and her five children.

The circumstances giving rise to these proceedings may be stated briefly as follows. Mrs Erekin obtained housing from the council on the basis of an application form, which is now admitted to have been fraudulent. Mrs Erekin is guilty not only of fraud in relation to the application but in relation to a number of other issues as well. Indeed, such was her wrongdoing that she was sentenced to 18 months imprisonment.

When she was not in prison she had lived in the premises in issue and her children had stayed in the premises since 1997. Indeed during her imprisonment, as I understand it from the evidence filed before His Honour Judge Cottran, Mrs Erekin's mother moved into the premises to look after the children. By all accounts the children are doing well locally and there is nothing to suggest the home environment is unstable.

When the matter came before the Judge in January 2003 there were, potentially, two issues which he had to consider. The first was whether the legislation giving him jurisdiction to order possession had been triggered, and secondly whether or not in all the circumstances it was appropriate for a possession order to be made, the onus being on the council both to show that this was a case where the judge had jurisdiction to make a possession order and that the circumstances were such that a possession order was appropriate.

There was no dispute on the first point because, as I have indicated, the fact that Mrs Ekekin had committed fraud was not in dispute. So the only issue which the learned judge had to consider was that of whether or not in all the circumstances the council had made out a sufficient case to justify making a possession order.

The hearing before the Judge took the better part of a day and, as I have indicated, the only issue was whether or not a possession order should be made. He had the benefit of evidence filed on behalf of the council. That evidence took the form of witness statements from a number of witnesses including Mr Richard Adusa. The evidence explained in detail the frauds which Mrs Erekin had committed, and Mr Adusa's evidence explained very clearly that the claimant had to be concerned about the critical state of its housing availability. He said in particular in paragraph 6 of his witness statement:

At paragraph 10 of his witness statement he says:

The claimant's witnesses, including Mr Adusa, were cross-examined before the Judge. He also had the benefit of counsel's submissions and counsel's skeleton arguments. The crucial part of the claimant's skeleton argument is that set out in paragraph 4 which lists the reasons why the council says it would be reasonable for the court's power to make a possession order to be exercised in its favour.

In substance two points are made. First, of course, is the extensive fraud committed by Mrs Erekin. The second is the immense pressure on the claimant's housing stock. The learned judge's attention was drawn to Shrewsbury v Atcham Borough Council [1997] 30 HLR 123 in which the Court of Appeal said that, where there has been a deliberate lie to obtain public housing, it is only in exceptional cases that the court will consider the effect of homelessness legislation in deciding whether or not a possession order should be refused.

The learned judge also had his attention drawn to the speeches of Lord Green in Cumming v Danson [1942] 2 All ER 653 in which he said as follows:

The learned judge, having heard submissions from counsel, having read the evidence and having heard the cross-examination, came to the conclusion that the council had not discharged the onus upon it to show that a possession order in the particular circumstances of this case was justified. It is clear from the terms of his judgment, an agreed note of which has been provided to me today, that he considered this to be a very borderline matter. He refers to the authorities I have mentioned. He refers to the extensive fraud committed by the first respondent. He refers to the situation of the children, and the fact that they have been enjoying a stable home life in the property for the last five years. His judgment ends as follows:

The fact that this was a close run thing is emphasised by the fact that, when it came to the question of costs, although the council had lost he decided that it should not have an order for costs made against it.

The council asked the judge for permission to appeal. He refused it but such permission was subsequently given in a written application to the High Court.

Mr Moore, who appears on behalf of the council, accepts that since this appeal concerns the exercise of a discretion by a judge an appeal will only be successful if the guidance given in Tanfern Ltd v Cameron-Macdonald [2000] WLR 1311, at paragraph 32, is met. That is to say, where it can be shown that the judge at first instance has exceeded the generous ambit within which a reasonable disagreement is possible.

Mr Moore relies upon two points. First of all he says that the pressure on the claimant's housing stock was a major part of the council's case. It was not only expressly referred to in the skeleton argument and in the submissions made to the learned judge but it also was, as I have indicated already, the subject of strong evidence from Mr Adusa and the subject of cross-examination. He says it was therefore incumbent upon the learned judge to take that matter into account. He says that it was such an important part of the case that it warranted specific mention in the judgment. Since, as is clearly the case, the judge does not expressly refer to the pressure on the claimant's housing stock, it must be assumed that the judge did not take that into account. If he did not take it into account, then he did not fairly balance the factors in favour and against making a possession order and the court should now do the job afresh.

As attractively as Mr Moore has put the argument, I am afraid to say I am not persuaded by it. He pointed out that the evidence of Mr Adusa was given before the short adjournment. It was not the last piece of evidence that the learned judge heard. If by that Mr Moore was suggesting that I should assume that the learned judge had forgotten what Mr Adusa had said, I reject it. This was a discrete hearing before an experienced judge where the issue of the pressure on the housing stock played a large part in the claimant's arguments. The fact that it is not referred to expressly in the judgment does not, in my opinion, mean that it was not taken into account by the learned judge. It is a fact that when judges give extemporary judgments things are omitted. There is no reason to believe that the judge here did not take into account all the arguments advanced on behalf of the claimant, including the one relating to the pressure on the housing stock. Indeed, in view of the very powerful way it was put on behalf of the claimant before the learned judge, I think it is inconceivable that that is a matter which he did not take into account.

Second, it is said that, given the weight of the fraud here, the judge should have exercised his discretion in favour of making a possession order. As I have said, his attention was drawn to the Shrewsbury case and a large part of his judgment does recite the frauds committed by the first respondent.

The job of an appellant court is not to substitute its views for the views of a judge of first instance. It is not enough to persuade the appellate court that if it had heard the case for the first time it would have come to a different decision to that reached by the judge at first instance. It may very well be that had Mr Moore addressed me as a first instant judge I would have decided that the balance was in favour of granting a possession order. But that is irrelevant. The question is whether or not it can be said at this stage that the learned judge who heard a whole day's evidence and submissions has exceeded the generous ambit within which a reasonable disagreement is possible.

I think there may be reasonable disagreement as to the outcome of the balancing exercise in this case, but in my view there is nothing to suggest that the learned judge exceeded the generous ambit which is given to him in deciding issues like this. For that reason I will dismiss this appeal.