England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HER HONOUR JUDGE BELCHER

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th December 2010

Mr Justice Norris:

1. On 26 November 2001 the Leeds and Yorkshire Housing Association ("the Association") let the ground floor flat of 91 Spencer Place ("number 91") on an assured tenancy to Mr Vertigan.
2. There was only one dispute over the terms of the tenancy, to which I will make brief reference because it provides part of the context for the decision we have to make on this appeal. That issue was whether the flat included the cellar of number 91. In a reserved judgment delivered after trial in the Leeds County Court in April 2010 HHJ Belcher determined that issue against Mr Vertigan. In the course of doing so, she found that he had been told in June 2007 that the cellar did not form part of his tenancy and that he could not use it, and the landlord blocked the access; but on the departure of the landlord Mr Vertigan immediately regained access to the cellar by sawing through the floorboards of the flat, doing so in full knowledge that he had no right of access to the cellar. The judge noted his evidence, which was:

"I resorted to taking this desperate measure in view of the landlord's completely unreasonable and overhanded action. The landlord does not derive any benefit from the cellar whatsoever. It does not make sense for it to be locked up and not used by anyone."

3. The landlord discovered the re-entry in September 2007 and took steps to secure the cellar. Mr Vertigan at the trial conceded moving a lock from the internal cellar door to the external cellar door so as to prevent the landlord gaining further access to the cellar (thereby restricting access to the cellar only through the floorboards of the flat).
4. This was not a breach of the tenancy, but Mr Vertigan's behaviour in relation to the cellar forms part of the context for our present decision.
5. The landlord also relied on further breaches. In a balanced and thoughtful review of the evidence HHJ Belcher found some of these were not proved, some were technical and did not warrant an order for possession, but others she did find proved. They related to covenants as to user and as to unauthorised works to the flat.
6. The tenancy contained obligations as to user in clause 3.5. They included an obligation not to cause nuisance or annoyance to neighbours. There was evidence of dog-fouling in the front garden of number 91. The judge found it proved that Mr Vertigan, who had four dogs, was responsible for that fouling. Mr Vertigan had admitted that he had four dogs which fouled the front communal garden, and that he did not clear it up on a daily basis, but only every couple of days. He acknowledged that the landlord's contractors, in particular the gardeners and the tree surgeons, were hampered in their work by the quantity of dog faeces, and he acknowledged that the matter had been raised in February 2007 but had been persisted in even down until the trial in April 2010.
7. As to the matter of unauthorised works, the obligations in relation to the premises were contained in clauses 3.11 and 4.5 of the tenancy agreement. In breach of those obligations Mr Vertigan had erected a metal structure with two disco balls onto the front of the flat in 2003 as part of his 40th birthday party celebrations. He acknowledged that he did not seek and had never been given permission to erect this structure and had been repeatedly asked to remove it. The judge recorded his evidence to the effect:

"I am not taking them down because I don't want to."

And again:

"…the premises are his home which is sacred to him and he wishes to decorate it and make it special. He said he will not be treated like a child and that it is not for someone else to tell him what he could or could not do with his home."

At that point in Mr Vertigan's evidence, the judge noted, he was quite angry.

8. The judge also found that sawing through the floorboards in order to gain access to the cellar, the removal of the locks and the placing of locks on other doors to number 91 constituted damage. She summarised the position in this way:

"What is clear from the evidence is that Mr Vertigan considers that he can do exactly as he likes in relation to the Premises. Taken together with the evidence of his repeated refusals to comply with requests to remove the metal structure, it is clear that he puts his own desires and wishes before the obligations in his Tenancy Agreement."

9. After a careful review of competing factors the judge found that it was reasonable to make a possession order. She thought the metal structure was a breach that was persistent and deliberate in nature and continued right up to the date of the trial. She thought the damage by cutting the floorboards in order to gain access was plainly deliberate and carried out in full knowledge that Mr Vertigan had no right of access to the cellar. She found that the landlord had repeatedly encouraged Mr Vertigan to comply with the terms of his tenancy agreement but that he had deliberately persisted in the breaches. She found that, despite being requested repeatedly to deal with the dog-fouling, he had taken the view that it was unnecessary to clear it up until there was an amount which he thought merited his attention. She noted that by the time of the trial the breaches had been ongoing and complained of by the landlord and disregarded by Mr Vertigan for at least two-and-a-half years. Permission to appeal against all those conclusions has been refused.
10. The learned judge then identified and separately addressed the question whether, if a possession order was to be made, that order should be outright or should be suspended. It is not on this appeal disputed that she correctly directed herself on the law. It is also accepted that she correctly described the nature of the order that would have to be made if it was suspended. She said at paragraph 69 of her judgment:

"…if I were to suspend the order for possession, the suspended order would plainly have to include terms requiring the removal of the metal structure and making good on any associated damage, the making good of the floorboards to the cellar and a requirement not to damage any other floorboards (the net effect of which would be to deny Mr Vertigan access to the cellar), and to clear all dog fouling in the communal garden immediately. Mr Vertigan was not asked in the witness box whether he was willing to comply with any such orders, but Dr Hodgson told me in closing that his instructions were that Mr Vertigan would comply with any order of the court and was anxious to keep his home."

11. In assessing whether he would be likely to comply with the conditions attached to any suspended order, the factors of which the judge expressly took account were, first, Mr Vertigan's attitude to his obligations under the tenancy; secondly, his attitude to the landlord's requests for compliance (written, verbal and under threat of litigation); thirdly, Mr Vertigan's credibility; and, lastly, his attitude in the witness box.
12. Permission to appeal her decision to make an immediate order was refused on paper. Mr Vertigan applied in person to Peter Smith J. In the course of that application he acknowledged that he had in fact once more gained access to the cellar, notwithstanding what his counsel had said to the judge below; but he seemed willing to offer undertakings as to his future conduct. Accordingly, Peter Smith J took that into account in granting permission to appeal. The permission he gave was in these terms:

"the application for permission to appeal be allowed, but the issue to be limited to whether it is reasonable to suspend the order for possession in the light of the applicant's willingness to give undertakings to the court as to the control of his dogs, the removal of the ornament and the non-replacement of it, and his undertaking not to re-enter the cellar."

13. A form of undertaking to that effect is now to be found in the appeal bundle.
14. Dr Hodgson, in moving the appeal, went straight to the heart of the matter and put the point as forcefully as it could be put. He says that an undertaking is a serious thing, breach of which is punishable; that Mr Vertigan is now willing to offer such an undertaking, and, in the light of that present offer, it warrants the withdrawal of the immediate order for possession and its replacement by a suspended order. I am not persuaded that the existence of an undertaking now offered justifies the court, on a proper application of the law, in allowing the appeal.
15. Firstly, our function on appeal is not to give a second bite of the cherry to a party who has lost in the lower court; it is our task to consider whether the judge was wrong in law on the evidence that was adduced at the trial and the way the case was run at the trial. Permission to appeal has been refused on all grounds relating to those matters. Exceptionally, of course, a court may consider a rehearing in the light of fresh evidence, but the rules as to the admission of that fresh evidence are restricted.
16. Secondly, I do not think the present offer of an undertaking constitutes fresh evidence in any meaningful sense. I respectfully disagree with Peter Smith J's view that Mr Vertigan did not have the opportunity below to offer an undertaking. It seems to me that clearly he did; he had the opportunity to do so in evidence, if the offer of the undertaking is genuine. The judge noted that that course was not taken. That is no criticism of counsel, who, on Mr Vertigan's performance in the witness box, could not be sure what answer he would receive if he asked as to Mr Vertigan's willingness to comply with his tenancy obligations; and counsel took the sensible forensic decision to deal with it in the closing speech on instructions. But the fact remains that Mr Vertigan had his chance to offer an undertaking and did not take it. The question, I think, has to be answered in terms of principle rather than by reference to authority, but I am comforted to seek that my approach to the question mirrors that taken by Richards LJ in Sharab v Abdul-Aziz Al-Saud [2009] EWCA Civ 353 at [52], to which we have been referred by both counsel.
17. Thirdly, I do not myself seek that the present offer of an undertaking is of any greater significance than a promise given through counsel on instructions of compliance with the conditions for the suspension for possession order. In each case the question for the court must be: what is the likelihood of compliance?
18. Fourthly, the making of a suspended order inevitably involves an assessment as to the future conduct of the tenant. That assessment is grounded on past behaviour, the circumstances in which the offer of compliance is put forward, and the reliance that can be placed on the word of the promisor. That is pre-eminently the province of the trial judge, who draws on a depth of experience of cases of this sort; an intimate knowledge of the facts of this particular case and all their nuances, not all of which translate readily into the written word; and the inestimable advantage of having seen Mr Vertigan over a two-day trial. The judge plainly drew on all of that material and gives an account of it in her careful judgment. Her conclusion upon that material cannot be thought to fall outside the proper range of decisions; in fact, I think it was plainly right.
19. Those who commit persistent breaches of their tenancy agreements, albeit that the breaches may not individually be serious, must understand that they are at risk of an immediate order for possession in an appropriate case. They should not assume that, because an individual breach is not serious, the outcome will inevitably be a suspended order, however many or repeated the breaches. That is the assumption which I fear Mr Vertigan made in his approach at trial.
20. I would accordingly dismiss this appeal. I am able to reach this conclusion without reference to the additional evidence which was sought to be adduced by the landlord which, as I understand it, endeavoured to demonstrate continued breaches; breaches which, naturally enough, Mr Vertigan disputes.
21. The pressures of a county court possessions list are not to be underestimated. This judge took the trouble to reserve her judgment, and I respectfully think that the judgment she delivered was exemplary in its approach to the evidence, the issues for decision and the balancing exercise to be undertaken in the exercise of her discretion. I would dismiss the appeal.

Lord Justice Elias:

22. I agree. In a conspicuously careful and impressive judgment, the judge determined that an order for possession should be granted and then she in terms addressed the question of whether it should be suspended. She did so in some detail between paragraph 67 and 75 of her decision. She noted that counsel had submitted on behalf of Mr Vertigan that he would comply with any order of the court in order to keep his home, save that he was insisting on keeping his dogs. With that in mind, she considered whether the order should be suspended. She gave cogent reasons why she did not consider that it was appropriate to do so; she was not satisfied that he would comply with the terms of any suspended possession order.
23. Counsel does not in fact criticise the way in which she exercised her discretion. He accepts that it was unchallengeable. What he says is that now there is new material, to put it neutrally, before the court, namely the fact that the appellant has indicated that he will give an express undertaking to comply with the terms of the tenancy agreement and any conditions which the court may make. I confess I do not see that this is, in substance, any different from the undertaking that he was prepared to give through counsel below. For that reason it seems to me that it casts no material doubt at all on the way in which the judge exercised her discretion and cannot be a basis for interfering with the exercise of that discretion. If I am wrong about that, and it is in some way qualitatively different from the undertaking that was given below, then in any event, in my judgment, we ought not to allow that material to be adduced in this appeal before us. Whether or not it is strictly to be described as fresh evidence, as Richards LJ noted in the case of Sharab v Abdul-Aziz Al Saud [2009] EWCA Civ 353 at paragraph 52(iii), the discretion to admit the acceptance of an undertaking should be considered in much the same way as one would consider whether to admit fresh evidence. Accordingly the principles in Ladd v Marshall will normally have to be satisfied before that material is heard.
24. I respectfully agree with Richards LJ's observation, and in my judgment there is no reason why this more formal undertaking, if indeed it is materially different from that given below, could not have been offered below. So the principles in Ladd v Marshall are not satisfied.
25. It follows that either this is not new material, in which case it was already before the judge in a decision not otherwise open to challenge; or it is new material, in which case it was not before the judge but should have been. Either way, the appeal fails.
26. For these reasons and those given by Norris J, I too would dismiss this appeal.

Order: Appeal dismissed