Royal Courts of Justice
Strand, London, WC2A 2LL
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
His Honour Judge Yelton
Case No: 8ED03576
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
MR JUSTICE PETER SMITH
| THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HARINGEY
|- and -
|SAMANTHA ABIGAIL HINES
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Mr Ali Reza Sinai (instructed by Attwaters) for the Defendant
Hearing dates: 28 & 29 July 2010
Crown Copyright ©
Lord Justice Rimer :
Secure tenants and the 'right to buy'
'The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.'
Section 82(1) provides that a secure tenancy which is either a weekly or other periodic tenancy, or a tenancy for a term certain but subject to termination by the landlord, cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house or an order under subsection (3).
'32. Power to dispose of land held for purposes of this Part
(1) Without prejudice to the provisions of Part V (the right to buy), a local authority have power by this section, and not otherwise, to dispose of land held by them for the purposes of this part.
(2) A disposal of land under this section may be effected in any manner but, subject to subsection (3), shall not be made without the consent of the Secretary of State.
(3) No consent is required for the letting of land under a secure tenancy or an introductory tenancy or under what would be a secure tenancy but for any of paragraphs 2 to 12 of Schedule 1 (tenancies, other than long leases and introductory tenancies, which are not secure).
44. Avoidance of certain disposals of houses without consent
(1) A disposal of a house by a local authority made without the consent required by section 32 or 43 is void, unless
(a) the disposal is to an individual (or to two or more individuals), and
(b) the disposal does not extend to any other house
(3) In this section "house" does not have the extended meaning of the definition of "housing accommodation" in section 56, but includes a flat.'
The judge's findings and conclusions
'20. I therefore find that [Ms Hines] moved to Harlow [Little Pynchons] in the spring of 2002. I also find that at that time it was her intention to live there permanently, a conclusion which I reach not only on the evidence as to school and doctor but also on her own testimony that she then saw her future as living with Mr Rogers and that, despite the difficulties in their relationship arising from infidelity on his part while she was pregnant with Raejan, she thought they could work through their problems. I find that she was there from the time of Raejan's birth until after the conveyance to her of the Tottenham flat [ie the flat] and that during that time it was her intention to remain there and not to return to live in Tottenham.'
'29. both objectively and indeed subjectively, on her own evidence ceased to occupy the Tottenham flat as her principal residence in the spring of 2002 when she moved to Harlow, as at that time she did not intend to return: Harlow thus became her principal home.
30. It follows that at the time of the lease to her, in October 2002, [Ms Hines] was no longer a secure tenant of the Tottenham property [the flat]'.
Ms Hines's appeal
'Q. In terms of the Right to Buy application, you knew, did you not, that you could not buy the property if you were not living at [the flat]? A. I knew that I wouldn't-----
Q. Have the right to buy it if you were not living there. A. But I was living there.
JUDGE YELTON: I appreciate that is your case, but counsel is asking that you knew you had to be living there. A. Yeah, that you had to yeah.
MR GRUNDY: And if your position changed you understood that you had to tell the Local Authority about that. A. If it was no longer my place of residence.
Q. Yes. A. Yeah, if it was no longer my place of residence, but between that time I always saw [the flat] as my main home.
Q. Your Honour, I have no further questions.'
'16. The evidence to that effect [namely, that from about February 2002 onwards Ms Hines was living not at the flat but at Little Pynchons] is as follows:
(A) On 27th February 2002 [Ms Hines] wrote to [Haringey's] payroll services advising that she would be going on maternity leave and asking for her payroll slips to be sent to "my home address". She continued "I have recently moved home and my new address is [Harlow]".
(B) On 27th March 2002 [Ms Hines] recorded her home address on Raejan's birth certificate as being that in Harlow.
(C) In March 2002 [Ms Hines] changed her General Practitioner from one in Wood Green, near [the flat], to one in Harlow, near Little Pynchons: she accepted that she told the doctor that she was living in Harlow.
(D) In April 2002 Jelani's school was changed from one in Wood Green to one in Harlow. [Ms Hines] accepted that she told the education authorities they were living at Little Pynchons.
(E) On 2nd July 2002 [Ms Hines] wrote asking for further maternity leave, again using the Harlow address.
(F) On 14th November 2002 she again wrote to extend her maternity leave, again giving the address in Harlow.
(G) On 6th May 2008 [Ms Hines] was interviewed by an officer of [Haringey's] internal audit department (Ms L. Johnson, who gave evidence) and admitted to her on tape clearly and unequivocally that she had moved to Harlow in April 2002 (p85 and again at p88. At p89 she said "my stuff and everything was still [in the flat]. It's just that I wasn't". Later in the interview she recanted partly and said (p91) that she was still [at the flat] a lot of the time, but that was when it was being put to her that she had been claiming housing benefit for [the flat] in late 2002. [The emphasis in paragraphs (A) and (G) is as in the judge's judgment]
19. I find that the representations set out by [Ms Hines] in 2002 as to where she was living, as set out in paragraph 13(A) to (F) above [sic: should be paragraph 16(A) to (F)], and the admissions made by her in 2008 in relation to 2002, as set out at 13(G) [sic: should be 16(G)], were true and that therefore her claim that she was in fact living in Tottenham [ie at the flat] during the relevant period was manifestly untrue
29. I find that [Ms Hines] both objectively and indeed subjectively, on her own evidence, ceased to occupy [the flat] as her principal residence in the spring of 2002 when she moved to [Little Pynchons], as at that time she did not intend to return: [Little Pynchons] thus became her principal home.
38. On my findings, the assertion by [Ms Hines] that she was living [at the flat] was, by the time the lease was executed, clearly untrue and was known by her to be untrue.'
The judge's finding was that Ms Hines's untrue assertion was one made fraudulently.
'46. As May LJ observed in Vogon International Ltd v. The Serious Fraud Office  EWCA Civ 104:
"It is elementary common fairness that neither parties to litigation, their counsel, nor judges should make serious imputations or findings in any litigation when the person against whom such imputations or findings are made have not been given a proper opportunity of dealing with the imputations and defending themselves."
47. Thus it is the case that before a finding of dishonesty can be made it must not only be pleaded, but also put in cross-examination. In Dempster v. HMRC  STC 2079 HMRC alleged that certain alleged transactions were a dishonest sham. On appeal from the VAT Tribunal HMRC argued that because their statement of case before the tribunal had constituted a case of dishonesty, it was unnecessary for it to be put specifically in cross-examination to the taxpayer either that he was a knowing party to a VAT fraud, or that he knew, or turned a blind eye to the fact, that the software which he traded was fake or worthless. Briggs J said (paragraph 26):
"I emphatically disagree with that submission. First, the tribunal's summary of what was not put in cross-examination is stated with clarity on no less than three occasions in the decision and I was provided neither with a transcript, nor notes (whether by the tribunal itself or the by the parties) of the cross-examination with which to be in any position to conclude that the tribunal's summary of the cross-examination was other than fair and accurate. Secondly, it is a cardinal principle of litigation that if a serious allegation, in particular allegations of dishonesty are to be made against a party who is called as a witness they must be both fairly and squarely pleaded, and fairly and squarely put to that witness in cross-examination. In my judgment the tribunal's conclusion that it was constrained, notwithstanding suspicion, from making the necessary findings of knowledge against Mr Dempster (necessary that is to permit the consequences of the alleged sham to be visited upon him) was nothing more nor less than a correct and conventional application of that cardinal principle."
48. I respectfully agree. These principles have had an important effect in the present case; because a number of essential building blocks in the claimant's case depend on allegations that, in the case of witnesses, were never put to them; or, in the case of third parties, on conclusions based on allegations that were never made.
49. Mr Shaw [counsel for the claimants] made a sustained attack on Mr Hone's veracity. It is the case that Mr Hone has told lies in the past (as he himself accepts). It is also the case that, as will be seen, I found some of his evidence untruthful. However, I must remind myself that even where a witness lies about a matter of importance, that does not necessarily mean that he is guilty of whatever it is that he is accused of doing. People tell lies for a number of reasons, including attempting misguidedly to bolster a genuine case (cf. R v. Lucas  QB 720).'
' well-known principle that where in pre-contract negotiations a party makes a representation which is true at that time, but which then ceases to be true before the contract is entered into, the representor must inform the representee of the new circumstances .'
There is no dispute that that is the way the case was pleaded and the way in which the case in fraud was presented to the court at the trial. In the context, the relevant 'contract' was said to be the lease dated 14 October 2002, as the judge explained in paragraph 29.
'alleges fraud, not restricted to contractual fraud under the Misrep. Act. Fraud (or deceit) as a tort entitles the innocent party to damages (Doyle v. Olby (Ironmongers) Ltd  2 QB 158).'
He said nothing to the effect that it was, or remained, Haringey's case that it was entitled in the alternative to damages for innocent misrepresentation. If anything, the email tacitly recognised that Haringey was not so entitled: it appeared to accept that the judge was right that Rushton ruled out any argument that Haringey could assert that there had been a material misrepresentation that had induced a contract; and such acceptance tacitly excluded any alternative claim based on an alleged innocent misrepresentation under section 2(1) of the Misrepresentation Act 1967.
Mr Justice Peter Smith :
Lord Justice Pill :