England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(MR RECORDER BALDWIN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th February 2007

Lord Justice May:

1. The applicant, a social landlord called Places for People Homes Limited, seeks permission to appeal against a decision and order of Mr Recorder Baldwin QC sitting in the Bristol County Court dated 23 October 2006. The Recorder's order was that the applicant's case for a possession order against the defendant Wendy Maddocks of the premises 15b St Edwards Road, Clifton, be dismissed. The application for permission was refused on paper by Lord Justice Longmore on 9 January 2007. He gave written reasons for doing that. This is a renewal orally of that application.
2. As I have said, the applicant is a registered social landlord registered with the Housing Corporation under the Housing Act 1996. The defendant respondent, Mrs Wendy Maddocks, is a secure tenant under the provisions of the Housing Act. The applicant granted her the tenancy as long ago as 28 June 1982 of these premises in St Edwards Road, Clifton. They are an upstairs flat or maisonette. Mrs Maddocks is some 60 years old and lives there with her 26 year old son, Christopher Vickery. On 13 July 2005 the applicant served a notice seeking possession under section 83 of the 1985 Act. Possession was sought on grounds 1 and 2 of schedule 2 of the Act. It was alleged under ground 1 that Mrs Maddocks was in breach of an obligation under her tenancy agreement not to cause any disturbance likely to annoy adjacent tenants, neighbours or those who lived nearby. It was alleged as a ground for possession under ground 2 that she was guilty of conduct causing or likely to cause a nuisance or annoyance to persons residing, visiting or otherwise engaging in lawful activity in the locality.
3. The heart of the allegations was that Mrs Maddocks or her son had been causing nuisances principally to the Ameur family, who lived in a downstairs flat. This family had been granted a tenancy in February 2003 and the family consisted of Mr and Mrs Ameur and their young children. There were no less than 60 allegations of nuisance pleaded in this case which were categorised on behalf of the claimants as (1) racist and other abuse including making racially offensive remarks to Mrs Maddocks's neighbours; (2) noise nuisance by loud music and banging; (3) disturbance by knocking on the neighbour's door; and (4) obstruction or difficult behaviour concerning the communal areas and garden. The Recorder said that the last of these was background and would not have been actionable without the more serious, recent nuisances by way of racist abuse and noise.
4. The Recorder in his judgment correctly directed himself in law. In particular he referred to section 84(2)(a) of the 1985 Act by which the court may not make an order for possession unless the court considers it reasonable to do so and section 85A, which requires the court to consider the effect that established nuisance or annoyance has had or may continue to have in any event, or if it is repeated, on others.
5. The Recorder carefully considered the evidence in relation to each of the 60 allegations and found that the majority of them were not established. These were findings of fact after obviously careful consideration of the evidence. The Recorder's judgment as we have it is 192 paragraphs long. It was probably longer than that as given, because the tape failed part way through. The remaining parts of the judgment as we have it were reconstructed by the Recorder from his notes without adding material which he gave orally, but which he could not safely remember in the absence of a full note on behalf of the claimants. The grounds of appeal are likewise voluminous and the initial skeleton argument in support of it occupies 102 paragraphs. The applicants will have to take it on trust that I have read and carefully considered these documents in full and looked at other documents besides, including two further written submissions made to the court on behalf of the applicants. I am not going to recite large parts of these documents or of the Recorder's judgment.
6. The essential point is that the Recorder made a whole series of findings of fact upon a full and careful consideration of a great deal of evidence. Miss Bretherton's attempt to dress criticisms of the detail of these findings up as points of law is not persuasive and in my judgment there is no real prospect of this court disturbing such findings of a first instant judge who had heard the critical evidence given orally. As Lord Justice Longmore wrote, the remainder of the skeleton argument, that is that relating to allegations and findings other than those relating to noise, is merely an invitation to re-try the whole matter on paper when it was the Recorder, who saw the witnesses, who made the necessary findings and who had to exercise his discretion.
7. Two examples will suffice to illustrate the shape of the Recorder's factual decisions rejecting many of the individual allegations. Allegation four of the 60 allegations were referred to as the "Pearson incident". The allegation was that on 6 April 2003 at approximately 11pm, Samir Ameur went to investigate noise in the communal hallway whereupon a visitor of the defendant used foul and abusive language towards him saying, "Fuck off to your flat". When asked to leave the premises, the visitor made a racist remark to Mr Ameur saying, "You wouldn't do this in your own country". The defendant behaved in a foul, abusive and racist manner when she said, "Fucking foreigners. Not knowing how things are done in this country".
8. Mr Pearson, who was 65 years old, gave evidence which the Recorder recounted at length in paragraph 26 of his judgment. Mrs Ameur gave evidence recounted in paragraph 27. Both the defendant and Mrs Ameur reported the incident to Miss Cunningham, the claimant's relevant officer. She suggested mediation which got nowhere because Mrs Ameur refused to co-operate. The Recorder's finding on this allegation is in paragraph 32 of the judgment, which reads as follows:

"I need to make findings about the incident on about 6 April and can say at once that I have no hesitation in preferring the account given by Mr Pearson. He struck me as a good coherent and reliable witness who was doing his best to assist me. I believe that the Ameurs fabricated the allegation of racial abuse in order to cover up the fact that Mrs Ameur was inappropriately rough with Mr Pearson on that evening in 2003. Neither Mr nor Mrs Ameur were consistent in their evidence and both of them gave me the impression that they will say things which they think will help them against Mrs Maddocks. This is an example of that approach in action. I also think it likely that Miss Cunningham did not believe that there had been any racial abuse at the time. She said that with hindsight she thought that she had made a mistake and should have followed up the allegation. However she accepted that she was talking to Mrs Maddocks regularly at the time. I conclude that she did not follow up this allegation because she was not satisfied that there was a case of racial abuse for her to consider. This is an important allegation and it is not proved."

9. So much for allegation four. The second example that I am taking simply to show the shape of the Recorder's findings is allegation 19, which was as follows:

"That on 12 May 2005 at 5pm the defendant shouted and banged around within the premises. Further nuisance was caused when the defendant contacted the police alleging that Mr and Mrs Ameur had vandalised the front garden after Samir Ameur had moved the position of the defendant's half-barrel planter. When Samir Ameur returned from work the defendant shouted at him in an unreasonable manner. Christopher Vickery told Mr Ameur to 'fuck off' from where he had come from at midnight. The defendant caused further annoyance by slamming the communal front door."

10. It is appropriate by way of illustration simply to proceed with the Recorder's consideration of this allegation. It is as follows:

"Some of the evidence about this allegation gives a little insight into the case. Thus the second sentence complains of nuisance as a result of Mrs Maddocks contacting the police as a result of Mr Ameur moving her half-barrel planter. Now this planter was one Mrs Maddocks had kept up for very many years and was just to the right of the pathway to the front door. It was not in anybody's way. Mr Ameur moved it because it was next to his window and he thought it shouldn't be there. He said that it was his property: property which belonged entirely to him. Of course he was wrong about that. It was communal property but he thought it was his own property and that explains why he did not like Mrs Maddocks going onto it to water the plants. He said that he did not like her watering the plants since she looked in the window. But since the blinds are such that one cannot see in the window it seems to me that his real problem was that Mrs Maddocks was in the front garden at all.

"Unfortunately the claimant does not appear to have explained sufficiently clearly to Mr Ameur that the front garden is communal and must be shared. Secondly the next sentence of this allegation is that Mrs Maddocks shouted at Mr Ameur in an unreasonable manner. He was asked in cross-examination to tell the court what she said. He said that she said that he Mr Ameur that is was causing a lot of trouble here. No more than that. In the circumstances of this case and bearing in mind what had happened I do not regard that as at all unreasonable and I am quite sure that Mr Ameur thought nothing particularly of it. He regarded himself to be in the right because he thought he owned the communal front garden and could do what he liked with it. Thirdly the next sentence alleges that Christopher Vickery uttered an expletive at Mr Ameur. Mr Ameur did not go along with that. He said that Chris only said go back to where you come from. The expletive was added by Mrs Ameur when she reported the matter to Miss Cunningham. Such action makes it difficult for me to know when she is telling the truth and when she is making things up. On this occasion she was clearly making things up when she reported the matter to Miss Cunningham.

"Another aspect of the allegation in this last sentence is that according to Mrs Ameur the remark from Christopher came after Mr Ameur shouted up to him from his flat 'come down and face me like a man'. That is it was a statement made after provocation and an invitation perhaps to a fight. So had Christopher said something offensive? It was not out of the blue but in the context of an aggressive statement from Mr Ameur. Mrs Maddocks's evidence on this incident is that Christopher was not even in the house at the time and Chris himself has no recollection of it. If the time given by Mrs Ameur is correct it is more likely than not that the incident occurred while Chris was at work.

"Mrs Snow, one of the claimant's witnesses gives evidence about this encounter. She says that Mrs Maddocks phoned her to complain that someone had vandalised the garden and she had phoned the police. Mrs Snow then phoned Mrs Ameur to tell her that the police were coming. She says she heard Mrs Maddocks and Mr Ameur shouting but makes no mention of Christopher at all. She said she felt sorry for Mr Ameur because he is in her opinion such a lovely man. I am not satisfied that any nuisance or annoyance was caused to Mr and Mrs Ameur which was anything other than they had brought upon themselves through Mr Ameur's action in moving the planter and behaving as if he had complete control over the front garden. In the circumstances Mrs Maddocks's remark, according to what Mr Ameur said it was, was not unreasonable. Because of the inadequacies of the evidence of Mr and Mrs Ameur I am not satisfied that Chris Vickery was present on the occasion or said that which is alleged of him."

11. Towards the end of his judgment the Recorder said in paragraph 174 that it was much more likely that Mrs Ameur complains about normal and acceptable behaviour because of her dislike of Mrs Maddocks. He then said in paragraph 175 that it could be seen that he had rejected the allegation of racism and making racially offensive remarks and all other allegations except those in relation to noise. That was, as I have said, the numerical majority of the 60 allegations that were made and was, as I read the judgment, the large bulk of the matters which occupied time at the trial.
12. Allegation 32 was one of the noise allegations. It was that on 14 January 2006 between 10.15pm and midnight very loud music was being played in the premises and someone was jumping up and down on the floor. There was ample evidence that the soundproofing in the house was poor. The Recorder rejected the evidence about jumping noise because Mr Ameur gave evidence that he heard these sounds but did not regard them as anything out of the ordinary. He said at paragraph 117:

"Counsel for the claimants suggested that Mr and Mrs Ameur were talking about different occasions but I reject this as unlikely. It is much more likely that Mr Ameur was telling me what happened and that Mrs Ameur was exaggerating in order to improve what she regarded to be her position."

13. As to music noise, Chris Vickery the defendant's son admitted that he sometimes played loud music. The Recorder said of this initially in paragraph 12:

"In relation to noise there had been admissions of playing loud music late into the night as well as at earlier times of the day. Some of these relate to pleaded allegations and some of them do not but because of these admissions I can deal with some of the allegations about noise quite briefly and I turn to the allegations in turn."

14. He found two of the specific allegations of noise proved. These were allegations 39 and 44. In summary allegation 39 related to 3 February 2006 at 10.30pm in the evening; it being alleged that the respondent's son played excessively loud music and started jumping. The Sculls complained and a row ensued during which the respondent described the Ameurs as "fucking bastards". The Recorder held in summary that that allegation was made out and that the respondent played excessively loud noise on this occasion. This led to the row that ensued. Allegation 44 concerned 4 March 2006; it being alleged that excessively loud music was played in the premises which caused nuisance to the Ameurs. A friend of a neighbour asked the respondent to turn the music down. The respondent's son turned his music down and slammed the door. In summary the Recorder found that that allegation of noise was proved.
15. An example of how the Recorder dealt with other noise allegations, of which there were quite a number, is allegation 26, which the Recorder dealt with in paragraph 96 as follows. He said:

"This is another allegation of noise. There is no corroboration and no complaint to the Environmental Health. It may or may not be one of the admitted ones. As with other allegations of this kind I can take them together in the light of the admissions. Not every one need be proved."

The Recorder rejected the submission that noise and other nuisances -- staring, for instance -- were racially motivated. He said this in paragraph 178:

"Going back to the occasional noise nuisance, does that noise amount to actionable nuisance? Is it sufficiently serious to amount to a breach of the tenancy agreement and if so is it reasonable to make a possession order? Counsel for the claimant urged upon me that the threshold in cases like this was very low and that I have all the latitude I need when it comes to the question of reasonableness. I do not necessarily think that is right but I have followed this approach in this judgment. If I make any error it is in favour of the claimant."

It has been explained that this might be a slight misrepresentation of the submission that was made. However that may be, the Recorder was making an assumption as to the approach which he regarded to be in favour of the claimant.

16. An important witness on noise was Mr Tremaine, who lives next door in the downstairs apartment. Of him the Recorder said at paragraph 182:

"It was suggested to him that he was often away from the property and whilst he accepted he was away sometimes, he said he was usually there. I regard his evidence as important. He is an immediate neighbour with no axe to grind commenting that he had never been disturbed by loud music from Mrs Maddocks flat and also stating that he had been disturbed by the Ameurs from time to time but not sufficient to fuss."

As to Chris Vickery, the Recorder said this:

"Mr Chris Vickery was frank in his acceptance that occasionally he played music too loudly and he then said furthermore his equipment has been disconnected for some time. I do not believe it will be used again in such a way as to cause a nuisance.

Proceeding, the Recorder said:

"Sometimes people have parties and sometimes this causes a problem for neighbours but I have no reason to think that the music from the Maddocks is any different now from what it was during all those years before the Ameurs moved in. That is something which one would ordinarily not complain about either to Environmental Health or the landlord. It was something which ordinary neighbours accept. So there have been some breaches of the tenancy agreement on the basis that the threshold is low. They are not likely to be repeated."

17. Then the Recorder noted in the writing that in his oral judgment he had expanded on that point since this was part of the judgment which had not been properly recorded. Then the Recorder said in paragraph 187:

"Bearing these required matters particularly in mind I would not regard it as reasonable to make an order for possession. Mrs Maddocks has had a very difficult time over the last three years: her happy life and in particular her pleasure in tending the front garden has come to an end. There has been loud music from her premises on occasions but none sufficient to warrant attendance by the Environmental Health Authorities. There is evidence of unacceptable noise from the Ameurs as well and this is not disputed. It was a problem for Mrs Maddocks: she complained about it but did not go so far as to encourage an action for possession. I do not believe that the Ameurs or the claimant would have supported an action for possession if they did not believe there was a racial element to the claim. In my judgment they were wrong to have this belief. As for the other neighbours, that has been some inconvenience to them but again, I am not satisfied that it has been such as to make it reasonable to make an order for possession."

Then the Recorder again said that in his oral judgment he expanded his reasoning on reasonableness.

18. In my judgment, this decision which I have summarised, albeit at a little length, is one of fact and in part discretion which is unassailable in this court.
19. There are a number of grounds of appeal, supported by much detail but, sensibly, Miss Bretherton has concentrated on the first of those this morning, acknowledging that the subsequent five grounds of appeal are there to support that first ground.
20. The first ground is in substance that the Recorder was wrong in law to find that it was not reasonable to make a possession order. The essential thesis is that although a majority of the allegations failed, the admissions by Chris Vickery taken with the evidence of witnesses other than Mr and Mrs Ameur that on occasions he played loud music should alone have carried the day. It is said that the judge failed sufficiently to consider lack of remorse and the effect which the noise had or would continue to have on others. It is said that the Recorder's reliance on the evidence of Mr Tremaine was in effect perverse in the light of the evidence of others, the location of his premises and the fact that the noise admittedly went on over a period of two years.
21. It is today at any rate said that the Recorder should at least have made a postponed or suspended possession order. Faced with the question of what this court, if permission were given, might do if the appeal was successful, Miss Bretherton sensibly backed away from the idea that there should be a new trial, although she acknowledged that it might have to be necessary. She suggested that this court, if the appeal succeeded, should and would be in the position to make a finding that an order for possession suspended or postponed was reasonable. This in my judgment in the end is not a point of law. The Recorder had to make an evaluative judgment of what was reasonable on the evidence and in my judgment he did so properly. As Lord Justice Longmore wrote, the fact that numerous other allegations were unproved or trivial was not irrelevant in dealing with the admitted noise allegations.
22. Next, the Recorder is said to have been in error in law in failing to find some of the noise allegations proved when they were admitted. This in my view is unpersuasive. These allegations were, according to the Recorder's findings, scarcely proved individually on the evidence but the Recorder properly took account of what was admitted as to noise in the round.
23. Next it is said that the judge was wrong to find that the noise was no greater than before the Ameurs moved in when that was not the evidence; Chris Vickery having admitted that from 2004, he sometimes played loud music at full volume. This in my view is unpersuasive; the Recorder had to evaluate the noise as it was and did so.
24. Next it is said that the Recorder gave undue weight to matters of no or limited relevance, and examples are given. This is supposing that this court should retry the matter on paper, not having heard the witnesses. The same applies to the next ground which complains that the judge failed to make findings on certain evidence, in particular that of witnesses other than Mr and Mrs Ameur. The same again applies to the next ground which says that the Recorder got some particular facts wrong on the evidence.
25. The final ground, ground seven, relates to costs when the decision as to costs was, as Lord Justice Longmore wrote, inevitable. It is today submitted that if the some of the facts were as they were proved, a full costs order against the claimants with statutory and social responsibilities should not be made. This may be arguable at first instance and was indeed probably in some form in fact argued, but it does not, in my judgment, sustain a ground of appeal by itself. The court is not required in deciding a renewed application for permission to appeal to address individually every single point made. The important thing is that the proposed grounds depend entirely on trying to make inroads into findings of fact or discretion, when the Recorder, who heard the witnesses, gave a full, careful, clear, detailed and measured decision which contains persuasive reasons for his evaluative judgment.
26. It is not, in my judgment, amenable to appeal and I would refuse this application.

Lord Justice Longmore:

27. I agree.

Order: Application refused.