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
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Wednesday, 21st March 2001

1. LORD JUSTICE CHADWICK: This is a renewed application for permission to appeal against an order made on 20th October 2000 by Sir Oliver Popplewell, sitting as an additional judge of the High Court in the Chancery Division, in proceedings brought by the London Borough of Hammersmith and Fulham, as landlord, for possession of a flat known as 47 Thackeray Court, Spring Vale Estate, London W14.
2. The flat had been let to Mr Edward Kryszyn under a tenancy agreement dated 20th October 1973. It is common ground that the tenancy was a secure tenancy under the Housing Acts. Mr Kryszyn died on 17th January 1999. The defendants to the proceedings are Mr Darek Jastrzebski and his wife Mrs Barbara Jastrzebska. They moved into the flat - 47 Thackeray Court - in July 1997, and thereafter occupied it with Mr Kryszyn until his death. They have remained in occupation of the flat since the death of Mr Kryszyn. It is against them that the council seeks an order for possession of the flat.
3. Mrs Barbara Jastrzebska is a cousin of the late Mr Kryszyn. The precise relationship is described in a letter dated 13th August 1999 from her solicitor to the council. It is said that Mrs Jastrzebska is the great granddaughter of Mr Kryszyn's mother's sister. In common parlance she would be described as a first cousin two generations removed.
4. On 1st February 1999, shortly after the death of Mr Kryszyn, Mrs Jastrzebska applied to the council for recognition as a person entitled to succeed to the secure tenancy under the provisions of the Section 87 of the Housing Act 1985. The council's response, by letter dated 24th February 1999 was that, following a full investigation of the facts, it had been decided she was not eligible to succeed to the tenancy.
5. It is not clear what that full investigation encompassed. It seems likely that the council had taken the view that Mr and Mrs Jastrzebska had not been in occupation of the premises for a year or more before Mr Kryszyn's death; and that it had formed that view on the basis of a return made by Mr Kryszyn when applying for housing benefit. In making that return Mr Kryszyn had stated that there was no one residing at the property other than himself. The council did not, at that stage, question Mrs Jastrzebska's relationship to Mr Kryszyn. As at 24th February the council seemed to have thought, no doubt from what they had been told, that Mrs Jastrzebska was the niece of Mr Kryszyn. If she had been the niece of Mr Kryszyn then she would have qualified under Section 87 on the grounds of relationship although it would still be necessary to establish that she had actually been resident there.
6. On the same day, 24th February 1999, the council sent to the occupier at 47 Thackeray Court a letter in these terms:

"Dear Sir or Madam,

You are currently in occupation of the above premises without the Council's consent. No tenancy or licence exists giving you permission to be there. You are liable to pay to the Council money for the use and occupation of the premises until premium is delivered up to the Council."

7. I interpose to say that "premium" must be a mis-type for the word "premises".

"This is known as mesne profits. This demand and any acceptance of money for your occupation do not mean that permission is being given for your presence.

Please note that Housing Benefit is available in respect of mesne profits. A claim should be made immediately (HB form enclosed).

Should you wish to discuss this matter further you should contact your housing officer on the above extension. However, your Housing Officer does not have any right or powers to give you permission to be there.

In the event that the Council is considering your situation, failure to make payment may well be taken into account. In addition, a money judgement may be entered against you, which might well affect your obtaining of credit.

Please note that the contents of this letter do not in any way affect the current action being taken against you to repossess the property."

8. Criticism is made of that letter; and rightly made in the circumstances that the letter appears to have been sent out without any thought being given to the actual facts in this case. For example, it is difficult to reconcile the suggestion that the council is considering Mrs Jastrzebska's in circumstances where it writes, on the same day, to say that after a full investigation into the facts it has been decided that she is not eligible to succeed to the tenancy. It is also difficult to reconcile the terms of the letter with the fact that, as at 24th February 1999, the contractual tenancy granted to Mr Kryszyn had not been determined. But notwithstanding those justifiable criticisms of a letter that may aptly be described as "mindless", it is plain enough from that letter that the council are asserting that the occupiers of the premises are there without consent; that money paid for being there would not be treated as rent giving rise to the creation of a new tenancy; and that, if financial assistance was needed there could be a claim for housing benefit. The probability is (as it seems to me) that the council wanted to ensure that during any period that elapsed before the occupiers vacated something woudl be paid; and, if necessary, those payments would be funded through housing benefit.
9. Two days later, on 26th February 1999, the council purported to terminate the contractual tenancy which had been enjoyed by Mr Kryszyn. They sent a letter to "the representative" of Mr Kryszyn giving notice to quit and asserting that the notice to quit was being served because of failure to comply with Section 3 paragraph (K) of the conditions of the tenancy. That was said to be a condition which required the tenant to occupy a dwelling as his own or principal home. In the circumstances that the tenant, Mr Kryszyn, was dead that was a strange letter to send. Nevertheless, it is plain enough - and that is reinforced by the notice to quit served on that day, 26th February - that what the council was seeking to do was to terminate the contractual tenancy previously enjoyed by Mr Kryszyn with effect from 29th March 1999.
10. Mr and Mrs Jastrzebski, having received those various letters and notices, instructed solicitors. From March 1999 until October 1999 their solicitor sought by correspondence to persuade the council to change its mind in relation to the right to succeed under Section 87 of the Housing Act. First of all, they addressed the question whether or not the Jastrzebskis had been resident in that flat for the required period prior to Mr Kryszyn's death. That was eventually sorted out. The question then arose whether or not Mrs Jastrzebska was a qualified relative under the provisions of Section 87. It transpired that she was not the niece of Mr Kryszyn, as the council had originally been told; and so she did not qualify.
11. On 26th October 1999 the council issued a summons for possession in the West London County Court. A defence and counterclaim was served on behalf of the Jastrzebskis in January 2000. The Part 20 counterclaim alleged that the council had accepted Mr and Mrs Jastrzebski as tenants by acceptance of rent which, it was said, had been claimed by the council and paid by the Jastrzebskis. In reply, the council asserted that the payments that were made had been made by way of mesne profits for user's occupation while the question whether or not Mr and Mrs Jastrzebski were entitled to succeed to Mr Kryszyn's tenancy was being investigated and determined.
12. On 10th January 2000 the action was allocated to the fast track. It came before His Honour Judge Cotran on 14th April 2000. He dismissed the council's claim for possession; and made a declaration on the Part 20 counterclaim to the effect that the council had accepted Mr and Mrs Jastrzebski as tenants. The judge directed that the council should pay their costs, and he refused leave to appeal. His reasons are set out in a very full judgment of which a transcript is included with the papers lodged in this application.
13. This being an action which had been allocated to the fast track, an appeal from Judge Cotran, if permission to to appeal were granted, lay to a judge of the High Court. Permission to appeal was granted by Mr Justice Jonathan Parker in May 2000 and the appeal came before Sir Oliver Popplewell, sitting as an additional judge in the Chancery Division, on 20th October 2000. He allowed the appeal and made the order for possession.
14. It is clear from the history which I have set out that this is an application to which CPR 52.13 applies. That is to say, it is an application for permission to appeal from an order of the High Court which itself was made on an appeal from the County Court. Permission to appeal is not to be granted in those circumstances unless the appeal would raise some important point of principle or practice or there is some other compelling reason why the appeal should be entertained by this court. CPR 52.13 gives effect to Section 55 (1) of the Access to Justice Act 1999. That is the test to be applied. It has not been suggested that the appeal in the present case raises any point of practice in the sense in which that phrase is ordinarily understood. Certainly, I have not been able to identify anything that could be discribed as a point of practice.
15. It is said, however, that the appeal raises a point of principle which is of sufficient importance to justify a second appeal. The point of principle identified in the course of the oral submissions is said to arise from the following passage in Sir Oliver Popplewell's judgment at page 21 line 12 of the transcript:

"I have got to look at the particular facts of the particular case, and more particularly, I think, today, when councils are investigating what may be a perfectly proper claim by the occupants, as in this case by the Jastrzebskis, as to whether they have a right to succeed. We all know, who sit in judicial review dealing with housing cases, that these things do not proceed at any great speed because the housing officers of councils dealing with homeless people and housing cases are overwhelmed with cases. They are under-funded, they are overworked, and they are under-staffed. So the speed with which a private landlord may deal with a single person in occupation and the inference to be drawn from the acceptance of rent over a period of time may vary enormously depending on the circumstances."

16. Mrs Nicholas, who appears for the applicants, says that that passage suggests that the judge was applying a dual standard: one test for private landlords and one test for local authority landlords. In my view, that is to misunderstand the issue which the judge was addressing. The judge had directed himself - correctly in the light of the authorities to which he had referred - that the relevant question in circumstances where a person remained in occupation making payments to the freehold owner was whether it was to be inferred from those facts that the payments were made and accepted as rent, so as to create an acknowledgement of a tenancy. That was the question which Judge Cotran had addressed. He had asked himself, at page 21 in his judgment, whether it was to be inferred from the facts that the payments - which, as was common ground, had been made by Mrs Jastrzebska to the council in respect of the flat - had been paid and accepted as rent so as to give rise to an acknowledgement of a tenancy. There is no dispute, as it seems to me, as to the relevant principle: the court has to ask itself whether the correct inference from the facts is that the payments have been paid and accepted as rent or whether the correct inference is that they have been paid and accepted in some other character.
17. In drawing that inference it is necessary, as Sir Oliver Popplewell pointed out, to look at the facts of each particular case. In circumstances in which a council is dealing with occupiers who are claiming to have succeeded to a secure tenancy under the Housing Acts, it is legitimate when deciding what inference to draw to have regard to the time which it may take the council to investigate the position; particularly in circumstances in which, as the judge pointed out, it is common experience that councils often do move slowly in these circumstances. That is not to excuse the council from fulfilling its duties. It is simply to recognise that delay in a case like this may not lead to the inference of acceptance or acquiescence; but may be explicable by the pressures that are placed upon a council's housing department. It is relevant to appreciate that the housing department may well be underfunded, overworked and under-staffed; and that its priority may well be with providing accommodation for the homeless. To ignore that would be unrealistic. I am not persuaded that there is any question of principle which would be raised by this appeal; let alone any point of principle that could be described as important. The court is required. also, to consider whether there is some other compelling reason why the appeal should be entertained in this court. It can be said with some force that in a case of this nature, where one judge has taken one view and a second judge has taken a different view, there must be something to argue about. But that is not the test. The test is whether there has been shown to be a compelling reason for this court to entertain a second appeal. For my part I would readily accept that, if this Court could see that an appeal was very likely to succeed, then that would be a compelling reason for allowing the appeal to be brought before this Court so that an apparent injustice could be remedied. But in the present case that test is simply not satisfied. For my part, I doubt whether this is an appeal which can even be said to surmount the threshold of having any real prospect of success. The judgment of Sir Oliver Popplewell seems to me to be compelling, for the reasons which he gives. In reaching his conclusions Sir Oliver Popplewell took full account both of the judgment of His Honour Judge Cotran and of the principle that an appellate court should not interfere with the judgment of a trial court unless satisfied that it has gone wrong.
18. But even if I were wrong in my view that this appeal has no real prospect of success, I have no doubt that it is not an appeal which can be said to have a high degree of likelihood of success. It does not, in my view, surmount the applicable test of "compelling reason".
19. For those reasons this application must be refused.
Order: Application refused