England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE COWELL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th January 2012

Lord Justice Lewison:

1. Mr Anas was the tenant of Flat 422, Block 6, Park West, in Paddington. HHJ Cowell held, on appeal from District Judge Price, that his tenancy had been validly terminated under the Housing Act 1988. Mr Anas seeks permission to bring this second appeal, which was refused on the papers by Carnwath LJ.
2. Mr Anas applied for an adjournment of the renewed application on the ground that he suffered from depression and asthma and was not fit enough to attend the hearing. I considered that application on the papers, in support of which Mr Anas produced a letter from a doctor. That letter did not say that Mr Anas was unfit to attend the hearing itself.
3. In Levy v Ellis-Carr & Ors [2012] EWHC 63 (Ch) Norris J set out the approach that the court will take to a request for adjournment on medical grounds. He said of the evidence in that case :

"In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case)."

4. The letter upon which Mr Anas relied did not meet any of those criteria. I therefore refused the application for an adjournment and a renewed application also made on paper on the same grounds. Mr Anas renewed his application to adjourn this morning. He says that he suffers from stress and asthma and he also adds that his son recently broke his ankle. The breakage of his son's ankle does not prevent Mr Anas from conducting his own application. I regret to say that stress is often experienced by litigants in person. It does not go away and, if a hearing is adjourned, it simply reappears on the adjourned hearing. There is therefore nothing to be gained in an adjournment.
5. Moreover Mr Anas made his application for the adjournment fluently and articulately. I refused the renewed application to adjourn and the application for permission to appeal proceeded. Again Mr Anas put his case fluently and articulately.
6. The test for the grant of permission to bring a second appeal is set out in CPR Part 52.13 (2). That reads :

"The Court of Appeal will not give permission unless it considers that –

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

7. Mr Anas's tenancy was created by a written agreement dated 18 July 2008 in which the term of the tenancy was expressed to be the term of 24 months from 1 November 2008 to 1 November 2010. The rent was expressed as a monthly figure to be paid on the 1^st of each month, the first payment to be made on 1 November 2008. There was a deposit of £4,200 payable on signing the agreement, which was to be held by the landlord under the Tenancy Deposit Protection Scheme.
8. A term of 24 months "from" 1 November 2008 would normally exclude the date from which the tenancy is expressed to run, with the result that the period of 24 months would begin on 2 November 2008 and expire on 1 November 2010. This is plainly what the parties intended, since 1 November 2010 was expressly included in the term of the tenancy. Thus any statutory monthly tenancy that arose after the end of the contractual term would have begun on 2 November 2010. As Mr Anas points out, under section 5(3)(d) of the Housing Act 1988 the periods of the periodic tenancy are the same as those for which rent was last payable under the fixed term tenancy. The period for which rent was last payable under the fixed term tenancy means the period for which the rent was contractually due. It is plain from the tenancy agreement that it was due at monthly intervals. Mr Anas says that the rent was in fact paid every four weeks rather than monthly, but in my judgment that does not change the operation of section 5(3)(c) of the Housing Act 1988. It is plain in my judgment that the statutory periodic tenancy was a monthly tenancy.
9. It further follows therefore that the date specified in the section 21 notice, which was 1 July 2011, was properly specified. In my judgment, therefore, HHJ Cowell was quite correct on this point. Accordingly the point raised obiter in Lower Street Properties v Jones [1996] 28 HLR 877 does not arise, but in any event the restrictions in section 21 are restrictions on the making of orders for possession. This is quite unlike, for example, section 83 of the Housing Act 1985 dealing with secure tenancies or indeed section 8 of the Housing Act 1988 dealing with assured tenancies which impose a restriction on the court entertaining proceedings for possession unless certain notices have been served. Section 21 does not preclude the court from entertaining proceedings. It precludes the court from making orders for possession. In my judgment, therefore, the proposed ground of appeal does not have a real prospect of success and moreover does not raise any important point of principle or practice.
10. The second point taken by Mr Anas is that it was not open to the landlord to serve notice under section 21 because section 215 of the Housing Act 2004 precludes the service of a Section 21 notice at a time when the deposit is not being held in accordance with an authorised deposit scheme. The issue here was whether the deposit had been repaid to Mr Anas by the time that the proceedings were begun. On the face of it, that is a question of fact which does not raise any point of law. The judge noted that Mr Anas had signed a number of documents in which he had acknowledged repayment of the entire deposit and that his acknowledgment was indeed witnessed on more than one occasion. The judge held that, in those circumstances, Mr Anas was estopped from denying what he had acknowledged in those documents. Mr Anas says that the man who restored the money was not in fact authorised to do so by the landlord, but that does not go to the question whether the money was in fact repaid. As I have said, that is a question of fact. Mr Anas then points to a receipt for the deposit in which it is said that Mr Anas agrees to vacate the property subject to finding alternative accommodation. Mr Anas says that that acknowledgment amounts to an agreement on the part of the landlords not to serve a section 21 notice. That, in my judgment, is an impossible interpretation of that letter and moreover section 215 of the Housing Act does not deal with agreements. It is concerned with whether the deposit was repaid or not. Mr Anas also complains that the judge, here I think meaning the District Judge, decided this question on the basis of hearsay evidence, but hearsay evidence is admissible in civil proceedings and in any event the application was made under the accelerated procedure.
11. In my judgment, the conclusion reached by HHJ Cowell was a conclusion to which he was entitled to come. Moreover, even if it was wrong, which I do not think it was, the point is not one of principle such as to justify a second appeal. Mr Anas also makes certain complaints in his written submissions about the procedure that the judge adopted. In particular, he complains that although HHJ Cowell granted permission to appeal he in fact dismissed the appeal. His first point is that this was contradictory. I do not agree. It is an everyday occurrence that judges grant permission to appeal and then dismiss the appeal itself. The second point is that the judge granted permission to appeal and dismissed the appeal at a single hearing rather than in two stages that on the face of it the Practice Direction requires. This is, I accept, an unusual procedure, but the purpose of splitting the appeal into two stages is to allow the respondent to the appeal to have his say. In this case the judge dismissed the appeal without apparently hearing the respondent. One might have thought that that was a reason for refusing permission to appeal in which case that would have been the end of the road for Mr Anas. This procedure has in fact worked to Mr Anas's advantage since it has given him the opportunity to put his proposed appeal before this court. It has now been considered twice, once as I have said on the papers by Carnwath LJ and then again this morning by me, I do not consider that there is therefore any real substance in Mr Anas's procedural complaints, which in any event do not cross the threshold for justifying a second appeal.
12. I therefore refuse permission to appeal.

Order: Application refused