England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
HIS HONOUR JUDGE ELLIS

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th May 2010

Mr Justice Morgan:

1. This is an application by Mr Crawford for permission to appeal against an order made against him in the Croydon County Court. The proceedings in the County Court were brought against Mr Crawford by the London Borough of Croydon, which was the local housing authority, and Mr Crawford's landlord. In the proceedings they claimed possession against Mr Crawford, who was a secure tenant of a flat, 18 Pawsons Road, Croydon. The London Borough of Croydon claimed possession relying on ground 1 and ground 2 of Schedule 2 to the Housing Act 1985. For this purpose, it had to prove, for the purposes of ground 1, that Mr Crawford had broken an obligation of his tenancy, and for the purposes of ground 2, that the tenant, or a person residing in or a visitor to the flat, had been guilty of conduct causing a nuisance or annoyance. Ground 2 is more extensive than the part that I have referred to, but it is not necessary to refer to the full wording.
2. In addition, and importantly, the London Borough of Croydon had to satisfy the court that it was reasonable for the court to make an order for possession against Mr Crawford (see Section 84(2)(a) of the Housing Act 1985).
3. The claim was tried over two days and the judge, HHJ Ellis, gave an ex tempore judgment on the second day. He held that the grounds for possession were established, that it was not reasonable to make an outright order for possession but it was reasonable to make a suspended order for possession of the flat. The court order was drawn up a few days after the judgment. The order as drawn recited that the parties had agreed terms of settlement and that the defendant had admitted he had been in breach of his tenancy agreement. The order also recited that the court had read a witness statement from a Miss Wright and from PC Abrahams and the court was satisfied that the grounds of possession were established and it was reasonable to make a suspended possession order. The order then was in the form of a suspended possession order. It specified a date for possession of 2 July 2009 but the order was to be suspended so long as the conditions in paragraphs 3 and 4 of the order were complied with. The condition in paragraph 3 referred to two persons, a Mr James Glen Crawford and a Mr Wayne Constable. The condition was that they should not attend visit and/or reside at the flat.
4. The fourth paragraph of the order imposed further conditions as to the suspension. These conditions referred to the defendant himself not permitting prohibited drugs to be brought to or to remain on the property, and the paragraph went on to refer to other conditions as to the keeping of dogs on the property, the committing of criminal damage and the payment of the rent as and when it fell due.
5. Paragraph 5 of the order stated that it was to remain in force until 2 July 2012 on which date it should lapse.
6. I can comment straight away on one or two features of that order. As I have stated, the order recited that the parties had agreed terms of settlement. That was not in fact the position. The error in the recital came about because the court had been supplied with a draft order at the outset of the hearing and the draft order had been prepared on the basis that the parties had agreed terms for disposal of the claim. The matter was not settled and therefore the recital needs to be corrected to reflect that fact. It was accepted by Ms Rai, counsel for Mr Crawford, who appeared both in the County Court and in this court, that the recital can be corrected under the slip rule and an appeal to this court is not necessary to effect that correction.
7. The order refers to the court being satisfied that grounds 1 and 2 in Schedule 2 to the Housing Act 1985 were satisfied. In very brief summary, so as to explain what follows, what the learned judge had held was that the flat had been used by Mr Crawford's son, also called James Crawford, and another man, Mr Constable, who was described as the son's stepbrother, for the purpose of dealing in cocaine, a class A drug, for a period from late 2007 until the premises were raided by the police on 20 June 2008, when the drug-dealing stopped. The judge made further findings about other unsatisfactory events after that and held that grounds 1 and 2 were established and that it was reasonable to make an order for possession.
8. The order made was a suspended possession order. The London Borough of Croydon had invited the judge to make an outright order for possession but he declined to do so; conversely Mr Crawford had asked the judge to dismiss the claim for possession or to adjourn it or to make a postponed order for possession. The judge (inaudible) why he concluded that the order should be a suspended order.
9. Mr Crawford sought permission to appeal against the order. That application was initially refused by Lloyd LJ after considering the matter on the papers. The application for permission was renewed orally before Rimer LJ. He ruled that permission to appeal on certain grounds would be refused and I need not refer further to that matter. However, he went on to direct that the application, insofar as it was based on paragraph 36 of the grounds of appeal, should be adjourned to the full court with the appeal to follow immediately on any ground or grounds for which permission might be given. Today is the hearing in accordance with that order.
10. At today's hearing Mr Crawford is represented, as I have explained, by Ms Rai, and the London Borough of Croydon is represented by Mr Beglan. Both counsel appearing today also appeared at the trial in the county court.
11. I turn then to consider the grounds of appeal as set out in paragraph 36 of the document which contains those grounds. Paragraph 36 begins with the opening words:

"The Learned Judge in making a suspended possession order was wrong in law in exercising his discretion under Section 84 of the Housing Act 1985 by firstly making an order for possession; secondly making a suspended order rather than a postponed, adjourned or dismissed order; thirdly making clause 3 of that order and fourthly making the duration of the order for two years"

The paragraph as drafted refers to two years, whereas in fact the judge's order was for a period of three years.

12. The opening words of paragraph 36 are followed by nine sub paragraphs a) to i) which set out nine individual challenges as to alleged errors of law in the judgment below.
13. Before considering these nine subparagraphs I note, as Ms Rai of counsel accepted, that there is no appeal to this court on any question of fact in a case like the present (see Section 77(6)(e) of the County Courts Act 1984). That section applies here because the county court judge was only able to make the order which he did make on being satisfied that it was reasonable to make such an order. Subparagraph a) of paragraph 36 identifies the alleged error of law as failing to have proper regard to the fact that the appellant had not committed any act and was not alleged to have committed any antisocial behaviour. The point being made is that the problems in relation to drug dealing and the other problems at the flat were directly caused by Mr Crawford's son and by the stepbrother Mr Constable, and they did not directly involve Mr Crawford himself. However, in my judgment the judge is not open to criticism in the way alleged. He was well aware of how the problem had arisen and the fact that Mr Crawford senior did not himself directly bring about those problems. The judge clearly took the real facts into account; he regarded those facts as relevant and they were part of the picture he had to assess when he considered what order was reasonable for him to make. Accordingly he did not go wrong in principle and this ground of appeal cannot be sustained.
14. I will take the grounds of appeal subparagraphs b), c), d) and e) together as the contentions put forward in those paragraphs significantly overlap. Paragraph b) states that the judge failed to have proper regard to the fact that the London Borough of Croydon had not explained in any direct evidence it gave why it was not reasonable to produce the original makers of the statements as witnesses. Paragraph c) states that the judge gave undue weight to hearsay statements in finding that drug dealing had taken place from the end of 2007 to June 2008 and then drawing an inference that the appellant must have known it was taking place. Paragraph d) states that the judge gave undue weight to statements, in finding that any social behaviour had occurred; that is, apart from the fact of the police raid which took place in June 2008. Paragraph e) states that the judge erred in law in giving weight to Sergeant Farmer's witness statement when that statement was unsigned and undated.
15. To consider these proposed grounds of appeal I need to describe as briefly as I can what were the sources of the evidence before the court as to the breach of the tenancy agreement and as to the antisocial behaviour. The judge in his judgment referred specifically to the following evidence. First, there was the oral evidence of WPC Abrahams. This witness gave evidence at the trial; she gave evidence in relation to the raid on 20 June 1998; but she also gave evidence, hearsay evidence, of complaints made to her from a number of residents living near to the flat in question, which complaints had led the police to obtain a search warrant which they executed in June 2008.
16. The second piece of evidence was a witness statement of a police support officer, Miss Nash. This witness statement contained details of a statement made to Miss Nash by a nearby resident. That resident had told Miss Nash, according to the statement, that the resident was frightened of reprisals if she had been known to be a complainant. The third piece of evidence was a witness statement of a police support officer, Mr Aldan . He described various complaints and reports to him made by local residents. The next piece of evidence was a witness statement of a Community Support Officer, Mr Mahoney, and this statement referred to a complaint by a female local resident.
17. The next witness statement is slightly different. It was from PC Hacking. He set out the previous criminal record of Mr Crawford Junior, of Mr Constable, and also of Mr Constable's lady friend, who had been in the flat at the time of the police raid. PC Hacking also referred to an occasion in December 2007 when the police attended at the flat and arrested Mr Constable. The statement also referred to certain information relating to the possession of drugs on that occasion. PC Hacking's statement, when listing the previous convictions of the three individuals, identified those offences which were drugs related offences.
18. Next the judge referred to a witness statement from Police Sergeant Farmer. The judge thought this statement did not take the matter much further. The statement was not signed by Sergeant Farmer. Ms Rai had submitted to the judge at the trial that it would be unsafe to place much reliance on this statement and the judge had accepted that submission. Indeed, he held he had reached his essential findings by relying on evidence other than that contained in that statement.
19. Next there was the evidence of the defendant himself. The defendant described the fact that his son and Mr Constable had been living in the flat and were beyond his control. The defendant also gave evidence about the times when he was at the flat and he was approached in connection with drugs. The specific finding made by the judge was that Mr Crawford was asked whether he wanted to buy drugs, rather than to sell drugs. The judge however found that evidence supportive of the general case being put forward by the London Borough of Croydon.
20. Lastly in his judgment the judge referred to the oral evidence of Ms Sonia Wright of the London Borough of Croydon. She had given evidence of three discussions she had with three residents who described the activities at the flat. The residents were not identified. At the point in his judgment when he referred to this evidence the judge had already expressed his essential findings about drug dealing at the flat, so he had reached those conclusions without drawing in particular on Miss Wright's evidence. Ms Rai emphasised in her submissions to this court that it was only PC Abrahams and Miss Wright who gave oral evidence for the London Borough of Croydon. It was only those two witnesses who were available to be cross-examined. Further, she pointed out that a large part of their evidence was not direct evidence within their own knowledge but was hearsay. The other police officers to whom I have referred, and the local residents, were not called to give oral evidence. Ms Rai also stresses that not only was the evidence from the police officers hearsay as they were not called, but their statements themselves recorded statements made by others so that their evidence was double hearsay.
21. For the defence the only witness, as I have described, was the defendant himself. Mr Crawford junior was not called to give evidence nor was Mr Wayne Constable.
22. Throughout his judgment in a number of places the learned judge reminded himself of the fact that a large part of the evidence placed before him was hearsay evidence. He reminded himself of the need to exercise care in assessing what weight to give to that evidence. He did not specifically address the question of why the various persons who had made hearsay statements were not coming forward to give evidence; however it is to be expected that he had in mind that fact when he made his assessment. He did refer to one specific piece of evidence as to why one complainant did not wish to be identified. That evidence referred to a fear of reprisal.
23. If and insofar as the grounds of appeal under discussion suggest that the judge did not have proper regard to the fact that much of the evidence was hearsay, I would not accept them. Insofar as the evidence was hearsay, it was for the judge to assess the weight to be given to it. It is clear from his reasoned judgment that he did assess that matter with care. He felt that he could act upon the evidence. It should be remembered that the hearsay evidence was all one way and was all of a piece; it was supported by the evidence of the police raid; it was also supported by the defendant's own evidence; it was not contradicted by any evidence called by the defendant. The judge was entitled to assess this evidence in the way which he did.
24. Ms Rai drew our attention to the relevant rules dealing with the admission of hearsay evidence in civil proceedings. She reminded us of Section 4(2)(a) of the Civil Evidence Act 1995, which states that when estimating the weight to be given to hearsay evidence the court should have regard to all the circumstances and in particular regard may be had to whether it would have been reasonable and practicable for the party by whom the evidence was adduced to produce the maker of the original statement as a witness. Ms Rae also relied on the way in which a similar point was dealt with by the Court of Appeal in the case of Moat Housing v Harris [2005] EWCA Civ 287, [2006] QB 606. For present purposes it is not necessary to refer to the facts of that case. That case, like the present, involved a claim for possession of residential premises when the claim was based on allegations of antisocial behaviour and much of the evidence in support was hearsay evidence. The judgment of the Court of Appeal was given by Brooke LJ. At paragraphs 131 to 140 of the judgment he considered the subject of the hearsay evidence in that case and the way in which a trial judge should deal with such evidence. Brooke LJ referred specifically to Section 4(2)(a) of the Civil Evidence Act 1995. Having referred to the way in which the trial judge in the case before him had dealt with the evidence he reached the conclusion it would not be right to reverse the assessment of an experienced County Court judge simply because he had not set out in terms the matters referred to in the Civil Evidence Act 1995.
25. Ms Rai told us that she had cited these passages from the Moat Housing case to HHJ Ellis in the County Court in this case and that HHJ Ellis had been specifically reminded of this guidance from Brooke LJ. In my judgment HHJ Ellis in the present case dealt with the subject of the hearsay evidence with care. Whilst it would have been possible to spell out in greater detail the way in which he had regard to all the relevant circumstances, including the matters listed in Section 4 of the Civil Evidence Act 1995, there is no reason to think that the judge did not take into account all the relevant circumstances when deciding what weight to give to the hearsay evidence before him. It should also be remembered that this was an ex tempore judgment. He did not commit an error of law by not referring specifically to the fact that he had not been told why the persons who made the hearsay statements had not been called. Ms Rai also emphasised in her oral submissions to the court that the more serious the allegation which is made the more cogent should be the evidence relied upon to prove that allegation. She accepted that the standard of proof in this case was the civil standard. I do not see that the judge made any error of principle in this respect in relation to the way in which he treated the evidence and made his findings of fact.
26. That disposes of most of the points which arise in relation to subparagraphs b), c), d) and e) at paragraph 36 of the grounds of appeal. There remain, however, one or two particular points to be addressed under those paragraphs.
27. In subparagraph c) there is a criticism of the judge's finding that Mr Crawford must have known that drug dealing was taking place. In my judgment there is no proper criticism that can be made of the judge's finding on the evidence before him; the finding was open to him and, speaking for myself, I do not entertain any doubt or concern about that finding. Subparagraph e) refers to the unsigned witness statement in the name of Sergeant Farmer. I have already referred to the way in which the judge dealt with the totality of the evidence and the fact that he placed no real weight on this unsigned statement when making his essential findings.
28. I go then to the remaining paragraphs of paragraph 36 of the grounds of appeal. Paragraph f) criticises the judge for the approach he adopted in relation to earlier authority, and the ground refers in particular to the case of Bristol City Council v Mousah [1997] 30 HLR 32. In that case the court made an outright order for possession. In the present case the London Borough of Croydon invited the judge to follow that example. The judge declined to do so. In that respect he ruled in Mr Crawford's favour. The judge gave himself an entirely correct self-direction in his judgment when he said:

"Each case depends on its particular facts. It is very much a matter of judgment for the individual judge on the particular facts to decide, having made the order for possession, whether to suspend or postpone, and with some hesitation I come to the conclusion that I should suspend or postpone the order."

That deals with subparagraph f) of the grounds of appeal.

29. Subparagraph g) of the grounds of appeal states that the judge failed to have proper regard to the efforts of Mr Crawford in stopping any antisocial behaviour when it came to his attention in and after June 2008 and that the antisocial behaviour had stopped since that date. Again, in my judgment there is nothing in this point. The judge was well aware of the relevant facts and made specific findings in relation to them. He took those facts into account when he made his overall assessment of what was a reasonable order for him to make.
30. Subparagraph h) of the grounds of appeal states that the judge failed to have proper regard to the effect of making an order on the appellant's health. Again, my comments in relation to the last ground of appeal are also applicable to sub paragraph h).
31. The last ground of appeal is subparagraph i). It states that in making an order the learned judge erred when he had stated that the order should be agreed and in circumstances where he could not consider Mr Crawford's submission as to why the order was not agreed. It is necessary to refer briefly to the sequence of events which are relevant for the purposes of this ground of appeal.
32. At the beginning of the trial, when opening the case for the London Borough of Croydon, its counsel, Mr Beglan, gave the judge a draft order. As I understand it, it was a draft suspended order which set out the terms or conditions in essentially the same way as the order which was finally made. When the judge came to give his judgment he made his findings, he discussed the type of order which he wished to make, and at paragraph 63 of his judgment he said this:

"So for those reasons I have decided that there will be a possession order suspended or postponed and I will now hear counsel on the precise terms of the appropriate order."

33. The judge then did hear submissions from both counsel on the form of the order. This court has been provided with a transcript of the hearing in the County Court. The submissions which were made at that point in the hearing are set out at pages 261 to the top of 263 of the transcript. The judge invited Ms Rai to address him first. Ms Rai put forward a number of points of concern to Mr Crawford on his behalf; in particular she urged the judge to make a postponed order and not a suspended order. I read from the transcript where she says:

"So it should be postponed. Having regards to the order there are no real difficulties with those terms proposed."

34. She then continued for some lines in putting the forward her points about paragraph 3 of the order, which is to do with the stepbrother and the son coming to the flat, and she made a number of submissions on that score. At the top of page 262 of the transcript the judge reacted to those submissions by saying that he was against Ms Rai's contention for reasons that he felt he had already dealt with in his judgment.
35. After Ms Rai's submissions the judge heard from Mr Beglan and then he resumed his judgment adding orally three or four paragraphs dealing with whether the order should be suspended or postponed. He explained why it should be a suspended order. He also explained what would happen in the event of a breach of such an order. His last paragraph, paragraph 67, is in these terms:

"As I say, my hope is that there is going to be no breach. It is unlikely that there would be, is my finding, but if there is to be a breach then it must be dealt with quickly and effectively, and that can best be done by a suspended order."

36. I have referred to the submissions made by Ms Rai on the point about paragraph 3 of the order. Significantly for today's purposes she did not submit to the judge, when she had that opportunity, that the period of three years referred to in the draft order was inappropriate or unreasonable. She told us today that if one re-read the transcript it was arguable that she was invited to deal with the terms of the order and the question of the terms of the order did not extend to a point such as the duration of the order. I do not agree that that is what was happening in the County Court at that point. Ms Rai was invited to make her submissions on any point which the court was to be asked to rule on, and those submissions should have dealt with the length of the order if that had been a matter on which Ms Rai wanted to ask the judge to give a ruling. The judge was perfectly entitled having heard the submissions to proceed on the basis that there was no point of controversy as to the duration of the order.
37. Following the final paragraphs of his judgment, to which I have referred, there was then a short discussion with counsel as to what remained to be done to prepare an engrossment of the order to be made by the court. That discussion is set out in full in the transcript; it is not necessary to read it out. On my reading of the transcript the judge was saying that the detailed terms of the suspended order should be in accordance with the draft order, but there were one or two typos which would need to be corrected and counsel should agree on wording which removed the typos.
38. Ms Rai draws attention to a passage on page 266 of the transcript where the judge refers to Ms Rai objecting to anything in the order. Taken on its own that might suggest that the judge was inviting written submissions from counsel on the terms of the order. However, reading the remark in context and in the light of all the other things that had been said, my conclusion is that the judge had determined that the order should be in accordance with the draft with the typos corrected. Accordingly there was no procedural irregularity nor anything which went wrong when the court made the order in accordance with the draft without the court being aware that Ms Rai had later decided to raise further points on the draft order.
39. At today's hearing Ms Rai says that the defendant's concern about the order made related to its period. She said that the judge had not given reasons why the order should last for three years rather than for a shorter period. It is true that he did not give reasons; he plainly accepted the London Borough of Croydon's submission that the local residents should have protection of the order for three years. As I have described, Ms Rai did not quarrel with that when she was addressing the judge on the terms of the order. It was not therefore necessary for him to give reasons on that point. Further, there was no error of principle in relation to the length of the order; the period chosen was one which was open to the judge when deciding what was a reasonable order to make.
40. At today's hearing Ms Rai did not press any other criticism of the order which was made. The other terms of the order were terms which it was open to the judge to impose.
41. I have now reviewed all of the grounds of appeal at paragraph 36. For the reasons set out above I conclude that Mr Crawford does not have a real prospect of success in establishing that there was any error of principle or error of law in the way in which the judge reacted to the evidence before him and made his decision, making his findings of fact and deciding whether it was reasonable to order possession. I would therefore refuse permission to appeal. The error in the recital to the order can, if need be, be corrected in the county court under the slip rule.

Lord Justice Carnwath:

42. I agree. I would only add one point. As my Lord has said, the scope of an appeal in this jurisdiction is limited specifically to points of law, and the court may not entertain an appeal on a question of fact. The scope of such an appeal undoubtedly overlaps with the sort of grounds which may be advanced on appeal against the exercise of discretion, which are familiar from cases such as AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1990] 1 WLR 1507 at 1523. But they are not necessarily identical.
43. In the Moat Housing case to which reference has been made, at paragraph 152, Brooke LJ said this:

"So far as the reasonableness point is concerned, s 77(6)(ee) of the County Courts Act 1984 forbids the court from entertaining an appeal on any question of fact in a case of this type. If, however, there is no evidence to support a finding of fact which a judge took into account when he considered it reasonable to make an order for possession, that raises a question of law which this court is entitled to entertain."

44. He there was reciting the well established principle that lack of any evidence to support a finding is an error of law. But it is not the same to say, as Ms Rai did on a number of occasions, that the judge failed to give "proper weight" to particular considerations. That raises a questions of factual judgment, not one of law. To my mind it is important, when anyone is drafting grounds of appeal in a case like this, that specific reference should be made to the statutory limitation on the scope of the appeal so that the judge considering the permission application is in no doubt as to the limitations of his jurisdiction.

Lady Justice Arden:

45. I agree with both judgments.

Order: Application refused