England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE ROSE)

		Royal Courts of Justice Strand London WC2A 2LL Friday 14 December 2001

1. LORD JUSTICE MANTELL: Mr Justice Wall will give the first judgment.
2. MR JUSTICE WALL: This is the renewed application by the trustees of Richmond Church Estate for permission to appeal against an order of His Honour Judge Rose, sitting in the Wandsworth County Court on 26 September 2001, by which the judge dismissed their claim as landlords for possession of a dwelling house at 28 St Mary's Grove, Richmond, Surrey. The other party to the proceedings was the tenant of the premises, the respondent to this application, Lesley Frederic Rushbury. The judge refused permission to appeal. On 8 November 2001 Buxton LJ endorsed that refusal, stating that, in his view, the appeal had no prospect of success.
3. It was common ground between the parties, that this was a tenancy to which the provisions of the Rent Act 1977 applied. In addition to an order for possession, the applicants sought damages based on the rent they would have been able to charge had they been in a position to obtain possession and re-let the property under an assured leasehold tenancy on the open market. That claim, of course, fell with the judge's decision not to make a possession order.
4. The story behind the proceedings was complex. The judge made it clear at the very outset of his judgment that his task in unravelling it had been made more difficult by the unreliability of the principal witnesses. The essential structure of the case was, however, reasonably clear.
5. The applicants had let the property to a lady called Hanora McCarthy in November 1982 for a term of 8 years from 1 November 1980. Initially, Mrs McCarthy lived there with her husband. They divorced and, on the expiry of the lease in 1988, Mrs McCarthy became a statutory tenant. At the end of 1992 the respondent moved in with Mrs McCarthy and they lived together as husband wife until Mrs McCarthy died in June 1996. The respondent was thus entitled to succeed to Mrs McCarthy's tenancy. From the date of her death he became the statutory tenant, a position accepted by the applicants in a letter from their solicitors dated 14 October 1996.
6. The applicant's case is that in October 1996 the respondent vacated the property and went to live at 42a Arundel Gardens, West London with Mrs McCarthy's sister, Annette Panter, thereby, they say, losing the protection of the Rent Act 1997 and bringing the tenancy to an end. Further, or in the alternative, the applicants claimed that the respondent had unlawfully sublet the property.
7. The respondent's case was that he had neither vacated nor sublet the property, although he had spent some time with Mrs Panter after October 1996. He says that she had recently been widowed and that he visited her to comfort her. He accepted that he and Mrs Panter had had a short-lived sexual relationship between October 1996 and May 1997. He said they had never lived with each other as husband and wife. The respondent also admitted that he had, from time to time, allowed friends to stay for short periods in the Richmond property, but that he had not sublet and had always been in occupation himself.
8. Thus, it will be seen that the judge was faced with stark conflicts of evidence, and that the outcome of the case depended entirely on his assessment of the credibility of the various witnesses and his findings of fact.
9. As I have stated, it was common ground that the tenancy was one to which the provisions of the now repealed Rent Act 1977 applied. It is not suggested that the judge misapplied the law. If the respondent had effectively lost his right to remain in the property as a statutory tenant, because he no longer occupied it as his residence, the applicants were entitled to a possession order as of right. However, if he had sublet, that was a breach of the terms of the lease and the applicants had to establish that it was reasonable for the court to make an order for possession.
10. The only other point of law in the case, again common ground, was that if the applicants satisfied the judge that the respondent's absence from the property was sufficiently prolonged to infer cesser of occupation, the burden of proof switched to the respondent, and it was for him to show that his residence had not ceased by establishing that he had an intention to return and that his intention was manifested by some outward sign, for example leaving furniture and other effects in the property. If there is not such intention or sign, the tenant's protection ceases (see Brown v Brach and Ambrose [1948] 2 KB 247, and the judgment of Asquith LJ).
11. The judge reflected that approach in his judgment in these words:

"...from this morass of half truths and deception...."

(the judge's description of the evidence):

"I have to try to ascertain the facts. The first matter that I ascertain is this: I consider, on the evidence that I have heard, that Mr Rushbury was away from the premises at Richmond for an unbroken time sufficient to transfer the onus of proof, on the balance of probabilities from the claimants to him. In other words, it is for him to show me that it was more likely than not that he continued to use the Richmond property as his home, rather than for the claimants to have to prove that he did not."

12. The judge's eventual conclusion states:

"I find that the defendant did not sub-let the premises. I also find that he was present at the premises on sufficient occasions for a sufficient purpose and with sufficient of his belongings remaining on the premises to bring him still, just, within the ambit of the statutory protection afforded to him by the 1977 Rent Act."

13. Any attack on a case which derives its authority from judicial findings of fact is a difficult task in this court.
14. In the notice of appeal two points are taken. First, it is said that the judge's conclusion that the respondent continued to occupy 28 St Mary's Grove as his residence, notwithstanding at least one lengthy absence, was wrong and/or unjust because, having found that the burden of proving the requisite intention to return passed to the defendant, the judge found himself satisfied as to that intention by a man (the defendant) whom he variously described as "evasive", "disingenuous", "downright dishonest" and "unreliable" as a witness. The learned judge thus found himself satisfied as to the requisite intention, despite what he described as "an absence of any real evidence".
15. Ground 2 is that the learned judge's conclusions that the respondent was not in breach of clause 2.11 of the lease (the provision against subletting), and that it was, in any event, not reasonable to make a possession order against the respondent were wrong and/or unjust because: (a) there was ample evidence of the respondent having parted with possession of at least part of 28 St Mary's Grove; (b) the learned judge failed to consider any circumstance as to the reasonableness of making a possession order other than the fact that the respondent was now living in the property with his wife as to which there was no evidence other than that of the respondent, whom the learned Judge found to be an unreliable witness and dishonest.
16. The principal witnesses whom the judge heard were Mrs Panter and the respondent. Mrs Panter said that the respondent had remained living with her until early 2000. However, the judge found that she was an unreliable witness and said so at various places of his judgment. I will read one of those references at the bottom of page 8 where he says:

"I found her, not entirely for reasons which attract blame to her, a difficult witness to believe on many points, and I did find her, I have to say, not a person on whom I could place much reliance, if any reliance, when it came to matters of fact concerning Mr Rushbury. She may well be a prisoner of her own emotions but I did not find her a compelling or reliable witness."

17. There was other evidence called. It was clear that the respondent had at some stage in 1996 put his name on the electoral register as living at Mrs Panter's address. She says he had moved a number of belongings to her house.
18. The respondent also gave evidence. The judge indicated that much of what he said was unsatisfactory. So far as subletting is concerned, there was evidence that the respondent had signed a housing benefit form for one Timothy Clarke, who was undoubtedly staying at the Richmond property from September 1998. On this aspect of the case, it is clear that the judge found that the respondent had been dishonest.
19. Mr Williams makes the point that the respondent was thereby caught in a double bind; either he had sublet, in which he case he was in breach of the lease and the possession order ought to be made, alternatively he was dishonest and his evidence was not entitled to be relied upon. There was, however, other evidence which the judge cites, in particular from Mr Booth which was supportive of Mr Rushbury's case.
20. The critical question, to my mind, is, whether or not on the evidence available to him, the judge was entitled to find that the respondent had discharged the burden of proof and had established, on the balance of probabilities, that his occupation of the premises had not ceased, that he had an intention to return and that there were outward signs of that intention.
21. The applicants rely upon the judge's finding about the respondent's dishonesty. However, having considered carefully the two points which Mr Williams has put forward, I am clearly of the view that the judge was entitled to make the findings of fact that he did and to reach the conclusion that he did.
22. As my Lord indicated during the course of the argument, this was an extempore judgment with a very complex factual substratum. I would not expect the judge to cross every "t" and dot every "i"; it would be unreasonable to expect him to do so. He clearly formed a view as to the credibility of the respective parties and, provided there was a factual basis on which he could reach his conclusions, in my judgment he was entitled to do so.
23. I have some sympathy for the applicant because it is quite possible that another judge, hearing the same facts, would have reached a quite different conclusion. But that is not the issue. The question is whether His Honour Judge Rose was entitled to make the findings of fact that he did on the available material before him. In my judgment he was.
24. In those circumstances, this appeal has no prospect of success and I would dismiss this application.
25. LORD JUSTICE MANTELL: So would I.
Order: Permission to appeal refused.