England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL A
STAY OF EXECUTION AND PERMISSION TO RELY
ON FURTHER EVIDENCE
APPLICATION FOR PERMISSION TO RELY ON FURTHER EVIDENCE
APPLICATION TO RELY ON FURTHER EVIDENCE

		Royal Courts of Justice Strand London WC2 Wednesday, 26th September 2001

1. LORD JUSTICE ALDOUS: This is an application for permission to appeal the order of His Honour Judge Wakefield and his judgment given on 14th June 2001. The crucial issue that the judge had to decide was a claim by Mr Job, who was the defendant, to have the right to occupy the ground floor at 13 Hanger Lane, Ealing. His claim was a claim to possessory right pursuant to the appropriate years of adverse possession.
2. The judge in a full and careful judgment concluded that during the period of 1988 to 1992 occupation by Mr Job had not been established. He relied on the register of electors for the property and for another property which showed Mr Job was registered. He also relied upon a demand in 1990 by the Ealing Borough Council for empty property rate in respect of the second floor of the Hanger Lane property which he said showed that that was not occupied and therefore Carlos - Mr Job's son - was at that time living in the ground floor and not Mr Job.
3. His conclusion was in these terms:

"I find, on the balance of probabilities, that the defendant ceased to occupy the ground floor as a residence for a continuous period between 1988 and 1992 and, moreover, gave up possession of the ground floor to Carlos during that period. Carlos, of course, was the true owner.

In October 1992 Carlos issued a summons for possession against Lomek in the County Court giving the address as 12 Granville Gardens. Perhaps, by then, Carlos had himself begun to reside at that address. I need not decide that point. What I do decide is that the oral evidence of the defendant professing to have lived continuously at 13 Hanger Lane is not sufficient to displace the inference I have drawn from the documents. I accept that, at some point in 1992, the defendant did again take up residence in the ground floor of Hanger Lane and retake possession, although only jointly with the son.

The effect of the break in the defendant's occupation of the ground floor as a residence, and the break in the possession, was to end the status as a statutory tenant. It had ceased to be the home. The discontinuance in possession also means that time ceased to run against the freeholder for the purposes of limitation."

4. For my part I would have come to the conclusion that there was no real prospect of success in overturning those findings without fresh evidence. It is just that on which Mr Job wishes to rely.
5. Before us are more than one application for permission to admit fresh evidence. The fresh evidence consists of documents that Mr Job has discovered in a garage at the premises. He says that in practice it was not possible for him to produce those documents before as he was sent to prison for eleven years in 1995 and has only recently been released.
6. The documents show Mr Job's address being at Hanger Lane. The most important, according to Mr Weiniger who has appeared before us, is a document of 23rd November 1989 written by Mr King the claimant. It is directed to Mr Alan Job at the Ground Floor Flat, Hotspur Lodge, 13 Hanger Lane and Mr Carlos Job at 12 Granville Gardens. It calls a meeting of the parties interested in a particular riding school. It states that the meeting is "to take place at 20.00 hours on Thursday 30th November 1989 at the home of Alan Job, Ground Floor Flat, Hotspur Lodge, 13 Hanger Lane, Ealing, W5."
7. Mr Weiniger submitted that that document in particular showed that Mr King knew that during the period in question Mr Job lived at 13 Hanger Lane. Contrary to that knowledge he represented the contrary to the court, both in his pleading and his evidence. Mr Weiniger referred us to Skone v Skone [1971] 1 WLR 812 and the decision of this court in Prentice v Hereward Housing Association TLR 30th March 2001 at page 256. He accepted that under the Civil Procedure Rules the principles in Ladd v Marshall, although not binding, were still relevant. The aim of the Civil Procedure Rules was justice. In the circumstances of this case where in practice it appears that Mr Job could not get at his documents, where the documents appear to show that Mr King had misled the court, there was good grounds for them being admitted. If so, there was a real prospect of success.
8. In Prentice v Hereward Housing Association the court did hold that the principles of Ladd v Marshall were satisfied. However Lord Justice Kay went on to say:

"It was also manifest from what the House of Lords said in Skone v Skone [1971] 1 WLR 812 that special considerations applied in circumstances such as these where there was disclosed a strong prima facie case of wilful deception of the court.

There were matters here that merited consideration afresh as to whether or not the judge was wilfully deceived and accordingly the interests of justice would in any event require a re-trial."

9. I do not intend to make any observations as to the strength of the evidence which is sought to be admitted. For my part I believe there is a real prospect of Mr Job succeeding in persuading this court to accede to his applications to admit fresh evidence. If so, there appears to me a real prospect of success in this appeal.
10. For those reasons I would give leave to appeal and leave to the Court of Appeal the question as to whether the fresh evidence should be admitted.
11. LORD JUSTICE RIX: I agree.
Order: Application for permission to appeal granted. Costs to be in the appeal; legal aid assessment if required. If the parties cannot agree to continue the stay the district judge is to decide.