England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		19 December 2005

1. LORD JUSTICE MUMMERY: The appellant, the London Borough of Lambeth, is the landlord of a flat at 79 Munro House, London, E7. It is held on a secure tenancy by the respondent Miss Vandra. She has been a secure tenant since 31 May 1999.
2. As a result of two visits to 79 Munro House by the Lambeth Housing Officer on 30 April 2003 and 13 May 2003, a notice to quit dated 13 May was served on 16 June 2003 on Miss Vandra. The Lambeth Council then took proceedings for possession on the basis that there had been an unlawful subletting by Miss Vandra of the whole of the premises prior to the service of the notice to quit. On 22 September 2004 District Judge Wakeham made an order for possession on the basis that the council had made out a case of unlawful subletting of the whole. That judgment was overturned on appeal on 11 March 2005 by His Honour Judge Cotran, sitting in the Lambeth County Court. Permission to appeal to this court was granted by Lord Justice Neuberger on 8 August 2005.
3. The question before the district judge was whether Miss Vandra had unlawfully sublet the whole of the premises. The district judge found, as a fact, that she had and that, in consequence, she had ceased to be a secure tenant. In her judgment the district judge, having disposed of a question concerning the validity of the notice to quit which is not material to this appeal, then went on in paragraph 4 to say:

"That leaves the issue of whether the defendant sublet or parted with possession of the whole of the premises. It is, I think, accepted if she did so the secure tenancy terminated and cannot be resurrected. The claimant relies on the evidence of Abiola Akinpalu who visited the premises on two occasions. First on 30 April 2003 and then on 13 May 2003. On the first occasion she spoke to a Mr - there is a challenge with some of the names in this case - Penumisci, who would not let her in but said he was a student living there. He paid rent to a Kim Hyotung. He did not know the tenant/defendant and when told the defendant's name he did not recognise it. On the second occasion on 13 May Miss Akinpalu gained access to the premises and spoke to four people in all: Kim Hyotung, Hyang Juan, who I think is in fact Kim Hyotung's sister and two young men, Kyung Woo and Sung Wong. She saw some of the premises. She was not able to see into two rooms. Another two rooms were locked and she was refused entry to the fifth room by Kim. She said that there were Yale locks on all the doors and she referred to thinking that there was a padlock on one of them. She saw no room being used as a lounge. In one of the rooms she went into there were two single beds. In the other there was a double bed and two singles. Four out of those people she spoke to - that is including the man she saw on the first occasion - said they were paying rent to Kim. The fifth, Kim herself, said she was paying rent to someone called Chris. Miss Akinpalu concluded this was a clear case of subletting, and I accept that that was the case - that the premises was sublet."

She went on in paragraph 5 to say:

"The issue then as I understand it, and I hope I have understood the defendant's position correctly, if there was subletting - and I accept that she did not necessarily accept there was subletting - but if there was subletting she was not responsible for it, but she had in effect been let down by Kim, or Jim as the lady was known to her, a friend that was house sitting at the property rent-free. Miss Akinpalu also gave evidence that there were no signs of family life at the property - no children's toys, no pictures or children's belongings."

4. The district judge then dealt with the evidence given by Miss Vandra, seeking to explain a state of affairs in which there appeared to be five people living in her flat, paying rent to a person she had allowed into the flat. That person was called Kim, who was paying the rent to someone called Chris and living in a flat where there appeared to be rooms internally with locked doors. After considering various aspects of the evidence given by Miss Vandra as to how this state of affairs arose, the district judge rejected her evidence and came to the conclusion in paragraph 17 as follows:

"It will be apparent from what I have said that I do not find the defendant's explanation for the events which occurred credible, and I find the defendant did sublet and part with possession of the whole of the premises in about December 2002. On the basis of that finding her secure tenancy, therefore, terminated. Notice to quit was served and expired on 16 June 2003 and on that basis I find that the claimant is entitled to possession."

5. There was then an appeal by Miss Vandra. It was heard by His Honour Judge Cotran. The question for him was whether the district judge's decision was wrong. He found that it was wrong because, in his judgment, there was no evidence for the finding of fact that there had been unlawful subletting of the whole of the premises. In a lengthy judgment only two paragraphs need to be quoted. At paragraph 39 he said:

"In this appeal it is urged by Miss Meacher, who also appeared below for the respondent, that this was a conclusion (that is the unlawful subletting of the whole) that the district judge was entitled to come to on the evidence. With the greatest respect, I beg to differ. The burden of proof here must be, and always is, on the landlord (in this case Lambeth) to show that there was a subletting, not any subletting, but a subletting by Miss Vandra to somebody of the whole. However one looks at this case, the only evidence that is accepted that is the only evidence is that of Miss Akinpaulu and her two visits. There is nothing, nothing, nothing in that evidence which shows that this lady Miss Vandra was the one who did the letting or was even connected with any letting."

He went on in paragraph 40 to say:

"To the extent that the caretaker story was not accepted, as I have repeatedly said, that does not equal a subletting by her."

I pause to mention that appointing Kim as a caretaker of the flat was one of the explanations given by Miss Vandra.

"Furthermore it seems that in this last paragraph calling for an explanation seems to have reverted [I think he means 'reversed'] the burden of proof which was necessarily lie, in cases of this sort, on he who seeks to say that there was a subletting. Of course I accept that there were documents in this case. But a subletting can be proved in many, many, many other ways than based on two visits of the kind that were made here and the conclusion reached on that alone which was accepted by this trial judge."

6. Following those comments, His Honour Judge Cotran concluded at paragraph 41:

"It seems to me that this case does fulfil the test of no evidence, whatever, and switching the burden of proof. And for those reasons it is not I who come to a different conclusion based on the evidence but on saying that the learned judge unfortunately misdirected herself, both on the question of proof and on coming to the conclusion which Miss Akinpaulu did, testing it on those two visits alone. For those reasons I would allow this appeal and set aside the order for possession made by the district judge."

There were 38 previous paragraphs which I do not think add anything significant to the summing-up of the views of His Honour Judge Cotran.

7. The critical question is whether there was sufficient evidence before the district judge to entitle her to find as a fact that there was subletting of the whole of the premises. It is true, as pointed out by Mr Bronnger on behalf of Miss Vandra, that there was no direct evidence that Miss Vandra had sublet the whole of the premises to anyone whether called Kim, Jim or Chris. There were also, as pointed out by Mr Bronnger, other possible explanations of the state of affairs found by the housing officer on her two visits. One of the possible explanations which Mr Bronnger mentioned was that there was subletting or parting with possession of only part of the premises. He pointed out that the housing officer had only seen two of the rooms. She was unable to see another two rooms that were locked. Her entry to a third room was barred. Mr Bronnger submitted that the district judge went too far. She took what he described as an unwarranted extra step of finding subletting of the whole. He said that in order to persuade the district judge to go that far Lambeth Council should have obtained more evidence by making further inquiries.
8. In my judgment, the fact that there is another possible explanation for the state of affairs found by the housing officer does not mean that there was no evidence or insufficient evidence for the inferences made by the district judge as to subletting of the whole. The absence of direct evidence is not fatal. Judges are entitled, when finding facts, to make inferences as a matter of probability from the primary facts which are established.
9. What were the primary facts here? The facts found by the district judge in support of her inferred conclusion were helpfully listed by Miss Meacher for the council in her oral submission. First it was a fact that Miss Vandra was not in occupation of the premises on either of the two visits. It was found that she had not in fact been in occupation since the previous December 2002. Secondly, there was no evidence or sign seen by the housing officer of any family occupation of the premises by Miss Vandra and her four children. Thirdly, there were five other people met in the two visits who were in occupation. Fourthly, there were Yale locks on all the doors and on one of them an additional padlock. Fifthly, there was no sign of any room being used as a living room. The two rooms that she had seen had beds in them. The other rooms were locked, and she was not allowed access to them. Sixthly, four of the occupants said that they paid rent to Kim or Jim, and Kim said that she paid rent to Chris. Kim was the person who Miss Vandra had put into occupation of the premises, Miss Vandra said, as a caretaker.
10. In the light of those facts the council were entitled to submit to the district judge that an explanation was called for from Miss Vandra as to why she was not there and as to why all these other people were there and were paying to be there.
11. As I have said, most of the judgment given by the district judge from paragraph 6 down to the concluding paragraph 17 consists of setting out the various explanations given in evidence by Miss Vandra, but which were not accepted by the district judge as credible. She explained why she did not find them credible. In those circumstances it seems to me that the district judge was entitled to conclude that there was in this case an unlawful subletting. The fact that the explanations were not credible does not mean that there was a complete vacuum in relation to a subletting of the whole. As I mentioned earlier, a possible view of the evidence was that there was subletting of only part. But the fact that that was a possible inference does not make impossible the inference by the district judge that, taking all of the facts together and the lack of a credible explanation from Miss Vandra, it was reasonable to infer that there was a subletting of the whole.
12. In my judgment, that is sufficient to dispose of this appeal.
13. We have received from both sides very detailed arguments in writing about the legal position. It is unnecessary, in my view, to go into many of the detailed questions raised. There was a crucial finding of fact by the district judge as to sub-letting. In my judgment, the county court judge hearing the appeal was not entitled to reverse it on the basis that he purported to do so, namely that there was no evidence. There was no direct evidence, it is true, but there was sufficient evidence from which a reasonable inference could be made about a state of affairs in which a number of people were paying to live in Miss Vandra's flat and were in fact living there.
14. For those reasons I would allow the appeal and restore the order for possession made by the district judge.
15. LORD JUSTICE LATHAM: I agree.
16. LORD JUSTICE CARNWATH: I also agree.

Order: Appeal allowed with the costs, detailed assessment of same if not agreed. Possession of premises within six weeks.