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 CENTRAL LONDON CIVIL JUSTICE CENTRE
(Mr Recorder Baldwin)

		Royal Courts of Justice Strand London, WC2
		13 September 2005

1. LORD JUSTICE RIX: This is an application of Mrs Catherine Tibbs and Mr Ronald Tibbs for permission to appeal from the judgment of Mr Recorder Baldwin QC, dated 12 May 2005, whereby he found that the applicants did not have a right to buy a property known as 28B Michison Road, London N1, and that the respondent London Borough of Islington's notice to quit was to be given effect.
2. This application was due to come on this morning at not before 12 o'clock. There was an application to adjourn this application which came before me, on paper, and was refused yesterday. I am told that Mrs Tibbs, who alone has filed the appellant's notice in this case, was in contact, or was contacted, by telephone yesterday and knew of the appointment today and that no adjournment had been allowed. When Mrs Tibbs, who was expected to be coming and assisted by her daughter Doreen Tibbs, was not here for this morning's appointment the contact telephone number was used without success to see if contact could be made with her. The court has received no further information or communication from Mrs Tibbs or her daughter Doreen. It is now 3.45 pm, and I am proceeding to deal with this application in the absence of the applicant.
3. Mrs Tibbs and her son Ronald served a notice under the right to purchase legislation pursuant to the Housing Act 1985 upon the respondent borough on 9 February 1999. At first the borough was willing to permit Mrs Tibbs to acquire the property under the right to buy provisions. The parties came close to a completion of the purchase, albeit not until 2003. However towards the end of 2003 Islington appears to have become aware, to their satisfaction at any rate, that Mrs Tibbs was not living in the property (which I will refer to as 28B) and declined to proceed further.
4. On 5 December 2003 Islington served a notice to quit to take effect on 5 January 2004 on the basis that 28B was not Mrs Tibbs' home. The relevant section of the Housing Act 1985 for these purposes is Section 81 which lays down that the so called "tenant condition", which must be met for a tenant to have a right to buy, is that "the tenant is an individual and occupies the dwelling house as his only or principal home".
5. At the trial below at which Mrs Tibbs and her son were represented by counsel and solicitors it was common ground that the issue was whether Mrs Tibbs occupied 28B as her home and if she did not then the notice to quit would have to take effect, and Islington would be entitled to evict Mrs Tibbs and gain possession of the property. Occupation for these purposes can be either physical or at least a matter of intention. The test of intention is one to be objectively ascertained.
6. Evidence in favour of Mrs Tibbs was given by herself and her daughter Doreen. The son Ronald gave no evidence. The judge described Mrs Tibbs, whom I should emphasis straightaway is an elderly lady of some 88 or 89 years, as being confused albeit, in essence, she gave evidence to the effect that she lived in 28B as her home. That was also the daughter Doreen's evidence. Doreen also gave her own address in her witness statement as 28B. However the judge found that Doreen's evidence was not credible and that he was not prepared to accept it where in conflict with other evidence and in the absence of evidence by way of corroboration or support.
7. There were three principal witnesses who gave evidence on behalf of Islington. The first was the next door neighbour, at 28A Michison Road, Mr Atkinson. He has been at No 28A since July 2000. Soon after his arrival, as he described in his evidence, he visited and was shown around 28B by a lady who said that she was the tenant's daughter. In her evidence Doreen recalled that visit and gave her own account of it albeit it was not consistent with Mr Atkinson's evidence. Mr Atkinson said that there was no sign of current habitation at 28B, and that it was inhabitable. It was agreed to be so by the daughter and she, the daughter, told him that although her mother was the tenant she did not live there but was living with herself. The judge found that Mr Atkinson was an impressive and honest witness and accepted his version of the events in preference to the version given by Doreen. She had asserted that her mother was present at the meeting as well, that the property was habitable although it needed work, and that she had not said her mother was living with her rather than at that property.
8. The second important witness for Islington was Miss Cachart, who was a residenet at No 33 Michison Road. She described herself as the typical "nosy neighbour" who, from her sitting room, was able to see the comings and goings of her neighbours, including any occupants of 28B, and that she liked to know what was going on and to talk about what was going on in the neighbourhood. She was sure that no one lived at 28B for the time she had been on the street which was some 18½ years. She said she had talked about this with other neighbours. She said she had only seen the daughter once before, some time after 2000. This was in conflict with Doreen's evidence that she regularly took her mother out shopping. The judge said that it was inconceivable that Mrs Tibbs could have gone out shopping with her daughter without Miss Cachart observing her. He described Miss Cachart as a good witness whom he was sure was truthful and doing her best to assist the court.
9. The third important witness on behalf of Islington was Miss Steel who was Islington's housing investigations officer. She gave evidence that she had tried to visit Mrs Tibbs at 28B some ten times, each time without success. She also produced certain documentation such as that concerned with an application that Mrs Tibbs had made for a disabled badge under the Orange Badge Scheme. That application had been made by Mrs Tibbs - although it is likely Doreen had filled out the form - in March 2001. In the application form Mrs Tibbs, who signed the form, gave her address not as 28B Michison Road but 149 White Cross Street, EC1. She stated on the form that it was very difficult for her to walk and that the maximum distance she could go without stopping in severe discomfort or without help was 10 yards. A form using the address 149 White Cross Street was sent to her general practitioner who signed it appropriately, thus recognising Mrs Tibbs as living at that address, 149 White Cross Street. It is true however that in a subsequent letter from her general practitioner to Islington he gave the address of Mrs Tibbs as a third address, neither 28B or 149 White Cross Street, but 52 Allerton Road. This was a property owned by Mrs Tibbs' son Ronald at that time. Mrs Tibbs said the address of 149 White Cross Street was where Doreen lived. However Doreen said she never lived at 149 White Cross Street, and only used that address on her mother's application form as a convenient address at which to pick up mail. She was asked: if she, Doreen, did not live at 149 White Cross Street, where she did live? She said it may have been at her brother's house at 52 Allerton Road but she could not be more precise, and she was reluctant to tell the judge where she did live.
10. The judge rightly said that whatever the explanation for the various other addresses used in connection with the orange badge application, none of that evidence sat easily with Mrs Tibbs' assertion that she had always lived in Michison Road. He also found that the more likely explanation for the use of 149 White Cross Street as Mrs Tibbs' address at that time was that she was not living at 28B, which was the judge's finding in any event on the basis of the other evidence which he heard. The judge took account of some evidence - essentially from the immediately previous year, namely when the issue of occupation had become critical between the parties to this litigation - that lights had been turned on and off at 28B, and that that had been used as an address for certain purposes such as registration on the electoral roll and so forth. But, on the basis of the evidence he had heard as a whole, the judge had no difficulty in finding that neither Mrs Tibbs' confused evidence nor Doreen's unsatisfactory evidence to the effect that Mrs Tibbs lived at 28B was correct. He found that it was not correct. He concluded in the final paragraph of his judgment by saying:

"On the facts Mrs Tibbs had not been in occupation for many years and had no intention of returning to it. She did not occupy it as her only or principal home in January 2004."

She did not satisfy the tenant condition in Section 8. He did not believe her or or her daughter's evidence to the contrary, and Islington's claim to possession therefore succeeded.

11. On this application there are essentially three grounds of appeal put forward. The first is that the judge made no finding as to where Mrs Tibbs was living if she was not living at 28B. That is correct so far as it goes. But the issue was not where she was living but whether she was occupying or had any intention to occupy 28B. In any event, given that it was Mrs Tibbs' and her daughter's evidence that, in the main, the two were living together, and that the daughter, whose evidence that they were living at 28B was not accepted, was not prepared to say where she, the daughter, was living, it is not in these circumstances at all surprising that the judge was not able to make any finding about where Mrs Tibbs was living, having rejected the case that she was living at 28B.
12. The second ground of appeal is that the judge gave disproportionate weight to the address in White Cross Street which had been used on the application form for the orange badge scheme and failed to give any weight to correspondence which pointed to 28B. In my judgment, although the judge gave some weight to the evidence relating to the orange badge scheme, he certainly did not give disproportionate weight to it. In essence, the orange badge application evidence was collaterial evidence which merely went to undermine Mrs Tibbs' case and Doreen's evidence.
13. The principal evidence, however, in respect to the occupation of 28B that the judge relied on was that of the neighbours, Mr Atkinson and Miss Cachart. The judge did take account of certain correspondence which used the address of 28B, but, quite rightly in my judgment, he found that it was not of critical weight.
14. The third ground of appeal is that the judge failed to consider in sufficient detail the facts applicable to the legal test for an intention to return to the premises. In my judgment, that is not so. The judge delivered a reserved and careful judgment.
15. The difficulty for Mrs Tibbs was that neither her confused evidence nor that of her daughter Doreen was found to be credible, whereas evidence to the contrary, stretching over many years and covering essential facts such as the habitability of the premises, was clearly of preponderant weight. In any event, Mrs Tibbs' and Doreen's evidence was not of an intention to return but to the effect that they were living there at 28B together over the relevant period. Moreover, any question of intention to return was belied by the evidence of mere pretence of habitation at the time within the last year or so when the issue of occupation had become acute.
16. The notice of appeal or supplementary notice also raise a certain amount of other matters such as new evidence, essentially of documenetary form. That comes too late. It was always available for trial. There is a suggestion that an application to strike out Islington's defence was made, but overlooked, and never brought before a hearing. But whatever may be the position in respect of that, and no complaint is made so far as return of fees is concerned, it was overtaken by a trial on the merits. Complaint is also made about small factual errors in the judgment, which to my mind are neither here nor there.
17. The question I have to ask myself is on an essentially factual matter: in a trial in which principles of law were agreed, is there a real prospect of success on appeal or some other compelling reason why an appeal should take place? In my judgment, it is impossible to say that the judge was not fully entitled on the evidence he heard to come to the factual conclusion to which he did come. In my judgment, an appeal would offer no prospect whatsoever of any success. Nor is there any other compelling reason for an appeal to take place.
18. In those circumstances it is my duty to refuse this application.
19. It may be that, strictly speaking, this application - which appears to have been filed in the Court of Appeal on 10 August 2005 - was nearly three months out of time. However it appears to have been filed at the High Court on 26 May 2005, just within the necessary 14-day period allowed. This is therefore perhaps one of a number of cases which this court sees of appellants' notices being filed in the wrong quarter leading to delay in proper filing in the Court of Appeal. There is not much information before the court to explain what has happened, but it does appear to have been before a High Court judge before being re-routed to the Court of Appeal.
20. I prefer to deal with this application on its merits rather than by reason of the question of whether extension of time should be granted. I am prepared in all the circumstances to assume that any necessary extension of time should be granted, but for the reasons which I have given this application must be refused.

Order: Application refused