England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE MITCHELL
2CL01677

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 February 2016

Lord Justice David Richards:

Introduction

1. The appellant is the landlord of business premises. The tenant, the respondent to this appeal, brought proceedings under Part II of the Landlord and Tenant Act 1954 for the grant of a new tenancy. The landlord resisted the application on the ground set out in section 30(1)(g), that he intended to occupy the premises for the purposes of a business to be carried on by him at the premises.
2. The entitlement of the landlord to rely on this ground was the subject of a preliminary issue. At the conclusion of a three-day trial, HH Judge Mitchell, sitting in the Central London County Court, held that the landlord had not established his entitlement to rely on section 30(1)(g) and made a declaration to that effect. He ordered that a new tenancy of the premises should be granted by the landlord to the tenant on terms to be determined by the court in default of agreement. The landlord appeals with permission given by Briggs LJ on a renewed oral application.

Facts

3. The landlord, Abdul Salam Seid Ahmed, is a solicitor and a notary public. He carries on his practice as a solicitor and notary public under the name Freeman Solicitors Limited at ground floor and basement premises at 60 Bell Street, London NW1. In August 2011, he became the sole owner and director of Mayfair Car Service Limited which carries on a minicab business from premises on the third floor of 220 Edgware Road, London W2.
4. The landlord is the freehold proprietor of a property at 210 Edgware Road, London W2, which comprises a basement, ground floor and three upper floors. The upper floors are let to business and residential tenants. The premises to which these proceedings relate comprise the ground floor and basement (the premises) which are let to the respondent, The Gulf Agencies Limited (the tenant). It occupied pursuant to an oral lease declared as such by an order of the Central London County Court made on 13 February 2009. The tenant is owned by Mr Ali Al-Jawad, who also owns an estate agency which has a tenancy of part of the first floor of 210 Edgware Road.
5. The landlord acquired the freehold in 210 Edgware Road in May 2007 and there appear to have been antagonistic relations between him and the tenants since then.
6. The landlord served a notice under section 25 of the Landlord and Tenant Act, giving notice of termination of the tenancy of the premises and opposing the grant of a new tenancy, on 14 May 2012, the fifth anniversary of his purchase of the freehold title and hence the first occasion on which he could do so. The notice specified the grounds of opposition as those arising under section 30(1)(f) (redevelopment) as well as under section 30(1)(g) but in his first witness statement the landlord made clear that he relied only on his intention to occupy the premises for the purposes of a business.

The law

7. The relevant law is well-settled and not in dispute. The landlord must establish that he intends to occupy the premises for the purposes (or partly for the purposes) of a business to be carried on by him on the premises. As was stated by Rimer LJ in Humber Oil Terminals Trustee Ltd v Associated British Ports [2012] EWCA Civ 596 at [16]:

"The issue before the judge was whether ABP had established that intention. That was a question of fact for the judge which had to be answered by considering the two requisite elements making up the necessary intention: (a) did ABP have a fixed and settled desire to do that which it intended to do; and (b) did ABP have a reasonable prospect of being able to bring about its desired result … The first element of the test is a subjective one. The second is an objective one."

8. Speaking of the intention specified in section 30(1)(f), but in terms equally applicable to section 30(1)(g), Denning LJ in Fisher v Taylors Furnishing Stores Ltd [1956] 2 QB 78 said at 84 that the intention must be:

"genuine and not colourable; that it is a firm and settled intention, not likely to be changed."

The proceedings below

9. Both the subjective and the objective elements of the intention which the landlord had to establish were in dispute before the judge. He heard oral evidence over two days, from the landlord, Mr Al-Jawad and expert witnesses as to the planning position relating to the premises and in particular whether the landlord would be able to carry on, as he said he intended, his solicitors' practice and the minicab business in the premises. There was a two-day adjournment following the evidence, in which counsel prepared and delivered written closing submissions. Closing speeches, largely by reference to the written submissions, were given during the morning of 8 November 2013 and at 3.30pm on that day the judge delivered an oral judgment. He rejected the landlord's case as to both the subjective and objective elements of intention. I will refer later to the relevant parts of his judgment.

Grounds of appeal

10. The grounds of appeal can be grouped under three headings: apparent bias, the subjective element of intention and the objective element of intention. As to the subjective element, the landlord submits that the judge relied on the burden of proof when he should have made a clear and express finding and, more importantly, he effectively found that the landlord was lying without expressly so finding and without giving any explanation as to why the landlord's evidence was disbelieved. As to the objective element, the landlord submits that the judge's conclusion that he had not established a reasonable prospect of being permitted to carry on his solicitors practice or his minicab business at the premises was wrong as a matter of planning law.
11. I will consider the grounds of appeal based on the judge's findings as to the landlord's intention before considering the ground of appeal based on apparent bias.

Subjective element of intention

12. The unequivocal evidence of the landlord was that he intended to use the premises for his solicitors' practice and the minicab business. He stated in his first witness statement dated 14 January 2013:

"The reasons for my resisting their application for a new tenancy is that I require the premises for my own use as I have currently two businesses and rent two commercial premises. For economic reasons it is my intention that these two businesses will occupy these premises."

13. As regards his solicitors' practice, he said that his firm's lease at 60 Bell Street was for a term of six years from November 2011 at a monthly rent of £1,666 with a break clause entitling him to terminate the lease on 6 February 2014. He continued:

"15. My practice has been affected to some extent due to the economic downturn and I have been experiencing financial difficulties in keeping up with my monthly rental payments under the Tenancy.

16. It is not financially prudent for me to rent somewhere else and incur costs in executing the new lease of Bell Street when I am the freeholder of the premises therefore it makes economic sense for me to occupy the premises without incurring unnecessary costs in rents and rates at two different places."

14. As regards the minicab business, the landlord's evidence was that Mayfair Car Service Limited had been given notice to vacate its premises at 220 Edgware Road and it was simply holding over pending resolution of the proceedings concerning 210 Edgware Road. He said in his witness statement:

"I cannot afford to be without premises to run the Mayfair car service and I intend to move the business of both the car service and legal services to the premises at 210 Edgware Road. This is for purely economic reasons to benefit all parties financially, so that Mayfair need not have to pay exorbitant rent."

15. The landlord re-affirmed this evidence in a further witness statement made on 26 February 2013.
16. The tenant challenged the truthfulness of this evidence. His case was that the landlord had no intention of occupying the premises for the purposes of his own businesses. Reliance was placed on a number of matters.
17. First, the landlord's evidence was not supported by any evidence of the steps which could be expected of a landlord intending to carry on businesses in the premises, such as an explanation of how the premises would be adapted for use as a solicitors office and/or a minicab office and in particular how the premises would be shared, whether clients of the legal practice would have to walk through the minicab office, how the solicitors office would be securely separated from the minicab office, and so on.
18. Secondly, different versions of the lease of 60 Bell Street and the licence agreement for 220 Edgware Road had been produced. In the versions which the tenant submitted were the true versions, the break clause in the lease permitted early termination in February 2015, not February 2014, and the license agreement for 220 Edgware Road did not terminate until 31 October 2015. These were the versions originally put in evidence by the landlord, with the versions which appeared to support the landlord's case not being produced until the trial. The latter versions were, the tenant submitted, concocted, not necessarily by the landlord but with his knowledge. There was attached to the second version of the licence a guarantee said to have been given by Mr Al-Jawad which, the tenant submitted, was a clear forgery.
19. Thirdly, the tenant relied on the manner in which the landlord gave his oral evidence. He was said to have been evasive and argumentative, deflecting questions and seeking to impose his own version of events on the court. This cast serious doubt on the credibility of his evidence.
20. There can be no doubt that the issue for the judge, as put by both parties, was whether the landlord was truthful in his evidence that he intended to occupy the premises for the purposes of his businesses. Mr Holmes-Milner, appearing in this court and below for the tenant, concluded his closing speech by saying:

"Your Honour has to decide, does he want to go in to run a business or does he want to recover possession with a view either just to kick out this tenant who he does not like or to get a foot in the door with a view to a sale?"

21. Mr Holland QC, again appearing in this court and below for the landlord, concluded that part of his closing speech which dealt with the subjective element of the landlord's intention as follows:

"But, your Honour, at the end of the day you have to decide whether my client has a genuine intention or whether he is lying."

Mr Holland had earlier summarised his understanding of the tenant's case in these terms:

"But the point is this, my learned friend has to come up with some motivation as to why my client might lie. He says my client is a liar. Let's not beat about bush here: he is a liar who concocts documents or, if he does not do that, conspires with others to get them to concoct documents deliberately to paint a false picture to this court."

Mr Holland made the same point on a number of occasions in his closing speech, in each case without any correction or qualification from Mr Holmes-Milner.

22. Mr Holland submits that, notwithstanding these very clear statements, the judge never grappled with the issue whether the landlord was telling the truth or came to any conclusion on it. Instead, the judge rejected the landlord's case in a way which carried the implication that he disbelieved the landlord but without a clear finding to that effect and without clearly setting out the findings and grounds to justify this conclusion. That was a fundamentally wrong way of deciding the case. Any party in the position of the landlord was entitled to know why his case had been rejected and why, by implication, he had been disbelieved, all the more so if he was a solicitor.
23. Although Mr Holmes-Milner on behalf of the tenant criticised the judgment in certain respects, he submitted that in a case that depended on the landlord's evidence, it was permissible for the judge to hold that the landlord had not discharged the burden of establishing his intention. Essentially, the judge's decision was based on three grounds, all of them clear from the judgment: the landlord was an unimpressive witness so his assertions in themselves were of little weight; those assertions were not supported by the extrinsic evidence; and such extrinsic evidence as was adduced tended to undermine his case rather than support it. Mr Holmes-Milner submitted that the judge had focussed, as he was entitled to do, not on the genuineness of the landlord's intention, but on whether his intention was sufficiently fixed, settled or firm to satisfy the requirement of section 30(1)(g). At the same time, Mr Holmes-Milner submitted that implicitly the judge had not believed the landlord and that, reading the judgment, it was plain that he had not done so, but it was proper for the judge to have rejected the landlord's evidence without making an express finding of dishonesty.
24. With these grounds for appeal and the criticisms and submissions of counsel in mind, I turn to those parts of the judgment that deal with the subjective element.
25. Having set out the background facts in paragraphs 1 to 8, the judge correctly directed himself as to the applicable legal principles in paragraphs 9 to 11.
26. In the following paragraphs of the judgment, the judge considered the various matters which led to his conclusion on the subjective element of the landlord's intention.
27. First, in paragraphs 12 to 14, the judge referred to the evidence of previous attempts by the landlord to obtain possession of the premises, demonstrating "anything but a fixed and firm intention in relation to the premises". These were proposals which were either not pursued or, having been pursued, were changed.
28. Secondly, in paragraphs 15 to 20, the judge dealt with the break clause in the lease of the premises at 60 Bell Street and the two versions of the lease. In paragraph 16, he referred to the letter in the bundle before the court by which the right to terminate the lease under the break clause was, it appeared, exercised but noted that there was no response from the landlord of the premises at 60 Bell Street, when "at the very least one might have expected to see an acknowledgment of receipt of that letter". The judge addressed directly the difference between the two versions of the lease. He noted that the lease showing the break clause permitting termination on 6 February 2014 had been obtained from the landlord of the premises at 60 Bell Street and produced on the last morning of the trial. The judge noted that the simple way to resolve the conflict between the two documents was for the appellant landlord to have produced his lease which, he claimed, had been thrown out of his office in error. At paragraph 20, the judge stated "I really do not accept that the lease in the defendant's possession was lost", and he referred to the requirement imposed on solicitors to keep their clients' documents and also their own documents in a secure way. He said that it was obvious to him that the evidence that he was being presented with on the first two days of the trial was second best and continued:

"but even now, I am not sure that I have a full account. I am not blaming the defendant over what has happened but I am blaming him for not having the landlord come to court, make a statement, produce the documents so that he could be questioned and give answers to some perfectly proper question marks."

29. Thirdly, in paragraphs 23 to 25, the judge addressed the inconsistent versions of the licence of the premises at 220 Edgware Road. The tenant's case was that the relevant licence had been granted on 30 October 2010 for a period of five years without any break clause. The licence agreement dated 18 August 2011 for a period of one year from 1 November 2011, on which the landlord relied, was said by the tenant to be concocted for the benefit of the landlord. The judge does not come in these paragraphs to any clear conclusion about the rival licence agreements, save to find that the supposed guarantee given by Mr Al-Jawad attached to the one-year licence was not signed as a guarantee but had been manufactured in order to appear to be so.
30. In paragraphs 26 to 27, the judge set out his conclusions as regards the leases and the licences. He said that he found "the whole thing extremely confusing" and continued:

"It is usually done as a deliberate act of obfuscation to put a smoke screen up but it really is impossible to say how this arose. It may be that somebody else had reason to interfere with this documentation, the landlord for example. It cannot be automatically said that it is the defendant who did it, but the reality is he produced these contradictory documents and they are unsatisfactory in the sense that it is not clear when he can leave either of the sets of premises. I cannot go any further but it cannot help the defence case when the documents are totally unsatisfactory, as they are."

31. In paragraph 27, he stated that the only way to resolve this would have been to call each of the landlords of the relevant premises to give evidence to explain the contradictions.
32. It can therefore be seen that, on a critical part of the case, the judge made no clear findings. The submission made on behalf of the tenant in closing had been that the documents which were favourable to the landlord had been concocted for his benefit and that, if that submission were accepted, it meant that the landlord's own credibility was in serious doubt. As Mr Holmes-Milner said in his submissions to this Court, the judge "did not grapple with the issue; he dodged it". While in paragraph 20 of the judgment, the judge, by not accepting that the lease in the landlord's possession had been lost, effectively found that the landlord was lying, he pulled back from making any express findings to that effect. Mr Holmes-Milner accepted that the judge had backed off making findings which he should have done, but, he said, the express findings that the judge would have made were clear.
33. Fourth, in paragraphs 28 to 30, the judge accepted the submissions on behalf of the tenant that there was an absence of evidence of consideration by the landlord as to how he would give effect to his professed intention to occupy the premises for the purposes of his own businesses.
34. Fifth, in paragraph 33, the judge made adverse comments on the manner in which the landlord had given evidence. This is preceded, in paragraphs 31 to 32, by references to evidence concerning Mr Al-Jawad's businesses and the assistance he gave to a tenant of premises in 210 Edgware Road, the relevance of which is not clear.
35. The judge stated his conclusion on the issue of the subjective element of intention as follows:

"34. So it seems to me that on that finding, I cannot find a firm and settled intention. Yes, the defendant asserts that he has that intention but it seems to me that the material is not there to support an intention to occupy the premises for the purposes of conducting a business therein.

35. I will also add I am very well aware that in one of the reported cases it is said that the threshold for the landlord under 30(1)(g) is not very high. I am aware of that but I think I have made it plain in giving my reasons that the evidence simply is not there upon which one can say that there is an intention as opposed to, perhaps, something less than an intention to occupy the premises."

36. The difficulty with this conclusion is that it does not address the central issue as presented by both parties to the judge. The issue was not whether the landlord had formed some wish, short of a firm intention, to occupy the premises for the purposes of his solicitors' practice and minicab business. The issue was, as counsel for the tenant had put it to the judge in closing, whether the landlord genuinely wanted possession in order to run his business in the premises or whether he was seeking to recover possession so as either to remove the tenant whom he did not like or to sell the property. In view of the very clear evidence of the landlord, the task for the judge was to decide whether he believed the landlord and, particularly if he did not believe him, to state clearly his reasons: see Zarvos v Pradhan [2003] EWCA Civ 208; [2003] 2 P&CR 9 at [45]. An important part of the relevant evidence related to the authenticity of the different versions of the lease of 60 Bell Street and the licence agreement for 220 Edgware Road and whether the landlord had been involved in the production of false versions of those documents. Apart from finding that the guarantee attached to one of the versions of the licence agreement had been manufactured, the judge made no findings on the authenticity of the documents and no findings on whether the landlord had been knowingly party to the production of false documents.
37. The result is that while, as both counsel agree, a fair reading of the judgment suggests that the judge implicitly did not believe the landlord, there is no express finding to that effect and no clear reasons for that conclusion. This is an unacceptable way of deciding the case, from the point of view of both parties. It is a very serious concern for the landlord that he appears to have been disbelieved without any clear finding or any clear statement of the grounds for that finding. It is also a matter of concern to the tenant. A clear finding of dishonesty would have given the tenant strong grounds for applying for its costs to be assessed on the indemnity basis.
38. In these circumstances, the judge's conclusion on the subjective element of the landlord's intention cannot stand.

Objective element

39. Having set aside the judge's findings as regards the subjective element of the landlord's intentions, it is necessary to consider whether his findings as to the objective element should nonetheless stand. This turns on questions of planning permission and permitted use of the premises. The approach to be adopted in these circumstances was summarised by Laws LJ in Gatwick Parking Services Ltd v Sargent [2000] 2 EGLR 45, by reference to two earlier decisions of the Court of Appeal:

"In Gregson v Cyril Lord Ltd [1963] 1 WLR 41, Upjohn LJ, whose judgment was read and agreed to by Diplock LJ, said at p.47:

"It seems to me that the test under the second heading mentioned at the beginning of this judgment is not subjective, that is to say, purely a matter of the state of mind of the respondents, no doubt acting on the bona fide advice of their experts. In my judgment it is essentially an objective test, that is to say, would a reasonable man, on the evidence before him, believe that he had a reasonable prospect of being able to bring about his occupation by his own act of volition? This, of course, is a question of fact to be determined on all the evidence that is before the court."

Moreover, in a case where the landlord's aspiration can only lawfully be fulfilled if he obtains a planning permission, this objective approach is to be followed in a way described by Savile LJ, as he then was, in Cadogan v McCarthy & Stone Developments Ltd [1996] EGCS 94. We have been provided with a transcript. This passage appears at p4:

"A reasonable prospect in this context accordingly means a real chance, a prospect that is strong enough to be acted on by a reasonable landlord minded to go ahead with plans which require permission as opposed to a prospect that should be treated as merely fanciful or as one that should sensibly be ignored by a reasonable landlord. A reasonable prospect does not entail that it is more likely than not that permission will be obtained."

The question for the judge was said by Laws LJ at page 48 to be "whether there was a real, and not merely a fanciful, chance that the appellant would obtain a planning permission whose effect would be that he would be allowed to run the car park business himself". The hurdle to be surmounted by the landlord "is by no means a high one": Laws LJ at page 49.

40. At the time of the trial there was a subsisting certificate of lawful use issued by the local planning authority to the tenant which had the effect of establishing that the premises were in lawful use under Class A1 (retail). The landlord had lodged with the planning authority an objection to this certificate but it had not been determined at the date of the trial and an adjournment of the trial pending its determination was refused. In those circumstances, the landlord's case was that by virtue of amendments made to the Town and Country Planning (General Permitted Development) Order 1995 made by an Amendment Order (2013/1101) it would be lawful to use the premises under Class A2 (financial and professional services) for a period of two years without the need to obtain permission from the local planning authority. As a matter of law, this was not in dispute.
41. The judge dealt with this in paragraph 39 of his judgment:

"I accept that in dealing with that there does not have to be a time limit and so, for example, as the case postulates, somebody could go into a premises, could stay for six months and then, having kept the business going, divide it amongst their family and move out. The perceived wisdom is that that would not offend the subsection. But in this case I have no evidence at all from Mr Ahmed about what he would do in the event that change of use was not permitted after a period of 18 months or two years and what consideration he has given it. It seems to me to indicate that he has not and it is yet another issue that comes under (not under the putting things into effect) the question of his intention."

42. As can be seen from that passage, the judge appears to have accepted that, as a matter of law, use of the premises by the landlord for the purposes of his own business for a period of up to two years would be sufficient to satisfy the objective element of intention. He would certainly be right to do so: see Patel v Keles [2009] EWCA Civ 1187; [2010] Ch 332 at [36] where Arden LJ said that the intended occupation of the landlord "must not be fleeting or illusory" and "must be more than short term". She observed that what is short term must depend on the facts of the particular case. In my judgment, occupation of the premises by the landlord for the purposes of his own business for a period of up to two years must be sufficient to satisfy this requirement in this particular case. Whether or not that might be commercially sensible for the landlord is not a matter for the court, save where that is relevant to the genuineness of his subjective intention.
43. The final position of the judge on the objective element of the intention is less than clear but, if he concluded that the landlord had not established a real prospect of lawful occupation for more than a short period, I consider that on the evidence before him he was wrong. Moreover, it would be very difficult for a court to speculate as to whether permanent permission for a change of use would be given at the end of the period of two years, because such a decision would have to be taken against the legislative and policy background existing at that date, which would be largely a matter of speculation at the time of the trial.
44. The landlord's application to revoke the certificate issued to the tenant was successful, as the local planning authority reported in a letter dated 7 January 2014. With the consent of the tenant, the revocation was admitted as new evidence by this court. Unsurprisingly, the judge made no findings as to the prospects for a grant of planning permission to enable the landlord to use the premises for his own businesses in the event that the certificate permitting Class A1 use was revoked. Although this was touched on in the evidence, there is no proper basis on which to reach any conclusion on this issue.
45. The position is therefore as follows. If the objective element of the intention is tested against the evidence that was before the judge, the landlord satisfied the necessary evidential test. Alternatively, if the matter is to be approached on the basis that the certificate of lawful use had been revoked, there is insufficient evidence on which to come to any finding. It is a matter which would have to be examined at a new trial, against the background of the legislative and policy position existing as at the date of the re-trial.
46. It follows that the findings of the judge on the objective element must, to the extent that he made any, be set aside.

Apparent bias

47. At the start of the trial, the judge challenged whether the landlord was in fact a solicitor. The transcript at pages 4-5 reads as follows:

"JUDGE MITCHELL: Well, I'm sorry to throw you a hot potato, Mr Holland, but the Law Society seem to be unaware that your client is a solicitor. They are aware of the Freeman Solicitors Ltd, but the search for Ahmed, Abdul Salem Seid returns nil results.

MR HOLLAND: Well …

JUDGE MITCHELL: I'll hand you the search.

MR HOLLAND: It is a curveball.

JUDGE MITCHELL: It may be that there is an explanation.

MR HOLLAND: Yes.

JUDGE MITCHELL: But, at the moment, it's not looking terribly good.

MR HOLLAND: Alright, can I take instructions?

JUDGE MITCHELL: Of course. You may want some time, actually.

MR HOLLAND: Alright.

JUDGE MITCHELL: But I did a search. I put the name in and, taking it from your client's statement, which is signed with a statement of truth, I put the name in. Yes, Freeman comes up at that address, but his name does not come up as either a solicitor or a solicitor connected with that business. Unless it can be shown that he is qualified, I'm not going to start trying this case. It's not something you normally expect, but it seems to me, if he is claiming to be going to carry on a business in these premises as a solicitor, he's got to prove he's qualified. He may well be. There may be some mistake.

MR HOLLAND: Well, the one thing I will say, your Honour, is that it hasn't at any time hitherto been questioned that he is, so that's perhaps why it's not dealt with specifically. Your Honour has, of course, perhaps understandably, raised it.

JUDGE MITCHELL: I prosecuted too many swindlers when I was the Bar, Mr Holland, so I'm naturally suspicious of everybody, particularly in this court.

MR HOLLAND: Well, your Honour, I …

JUDGE MITCHELL: Look, we …

MR HOLLAND: I'm sure there is an innocent explanation.

JUDGE MITCHELL: When you've done searches for doctors who don't exist, you do get rather cynical and questioning about what is going on.

MR HOLLAND: Alright.

JUDGE MITCHELL: And we have done that in this court. Right, well look, you must have some time because obviously it has taken you completely by surprise. The other thing is this.

MR HOLLAND: Yes.

JUDGE MITCHELL: I've got to make this plain. As far as I understand it, if it is the case that he is not a qualified solicitor, it is actually a criminal offence to claim that you are a solicitor when you are not."

48. After a short adjournment, counsel for the landlord was able to confirm that the landlord was a solicitor and gave his roll number. The judge had searched the Law Society website under the wrong name. The landlord's status as a solicitor had not been questioned by the tenant. The tenant knew the landlord and always accepted that he was a solicitor.
49. The judge accepted that the landlord was a solicitor, and there was the following exchange:

"JUDGE MITCHELL: Right, okay. I take that.

MR HOLLAND: So he is a solicitor …

JUDGE MITCHELL: Well, you can see why, I mean, you've got to be scrupulously careful in this court.

MR HOLLAND: Yes, well, your Honour, I accept that. I would hope that, having confirmed that your Honour's worst suspicions weren't true …

JUDGE MITCHELL: Yes.

MR HOLLAND: … that, well, we'll start with a clean slate, as it were.

JUDGE MITCHELL: Oh yes, of course."

50. There was no further reference to this in the trial, except that in examination- in-chief counsel for the landlord asked him to confirm that he was a solicitor and there followed this exchange:

"JUDGE MITCHELL: Yes, I accept that. You see why I took the, you know, I was somewhat suspicious …

MR HOLLAND: I think you have to go and get, you have to put the exact name in.

JUDGE MITCHELL: I tell you, Mr Ahmed, the number of people who have come in here who aren't who they say they are is quite extraordinary.

WITNESS: I wouldn't do that for a million pounds, Sir. I am also a member of the highest and oldest legal profession. I am a notary public as well and I practise from the same address, so.

JUDGE MITCHELL: Yes, that's alright.

MR HOLLAND: I'm grateful.

JUDGE MITCHELL: No, I accept that. I mean, as I say, the problem is that we get people who aren't who they say they are.

WITNESS: I understand, yes.

JUDGE MITCHELL: Yes, even doctors. We've had two or three doctors that were not qualified. It's extraordinary."

51. The trial proceeded in the normal way, including closing speeches in which no reference was made to this matter.
52. The ground of appeal in this connection is as follows:

"The judge made comments at the outset of the trial (to the effect that he did not believe the Appellant was, as he asserted, a solicitor) which indicated that he had a predisposition to disbelieve the Appellant before he had given evidence and showed apparent bias."

53. Mr Holland submitted that the judge's comment evinced a predisposition to disbelieve assertions made by the landlord before he had even given evidence, which was particularly significant in a case which in large part turned on the landlord's credibility. Alternatively, he had descended into the arena and assumed the role of advocate to an illegitimate extent.
54. Mr Holland submitted that the reasons given by the judge for questioning the landlord's status as a solicitor and conducting an online search displayed an unacceptable degree of cynicism regarding parties and witnesses which pervaded his judgment. In this connection, Mr Holland referred to passages in the judgment where the judge dealt with the fact that two of the landlord's witnesses had not appeared to give evidence orally.
55. After saying that he blamed the landlord for not calling the landlord of 60 Bell Street as a witness, the judge said at paragraph 21:

"It is also a similar matter with the witnesses. It happens all the time at this court; I have never known anywhere like it. Witness statements get included and it is quite clear that as far as Mr El Nidani is concerned he is, it would seem from the documentation we have seen, very ill in hospital even as I am delivering judgment and it may be that he has a history of illness in that way, certainly recently. But there are ways and means – and as a solicitor the defendant should know this – of evidence being given without the need of a witness to come to court. There are video links and the judge will go to a place to take the evidence. Many of us have been to hospitals or something of that nature so that evidence can be given."

These were odd observations for the judge to make, given that he had accepted written evidence from the Royal Free Hospital that Mr El Nidani had been admitted to hospital at 4.05am on Friday 8 November 2013, with a suspected heart attack, and was, as the judge himself said, "very ill".

56. At paragraph 22, the judge said:

"So far as Mr Hilli is concerned, he too may be an important witness but he is allegedly absent in Iran and he has had a motor accident. I am afraid, and I am entitled to be slightly questioning, I have heard that a witness or a claimant or a defendant is beyond the seas and has had a road accident so many times it is very difficult to take it at face value without more. But be that as it may, efforts can be made to have witnesses give evidence. At any rate, we try the case on the evidence that we have and that is what I propose to do. I really cannot give a great deal of weight to the statements of these witnesses because they have not been called to support their assertions."

57. It appears from a number of remarks made by the judge, some of which are quoted above, that he had formed a jaundiced view generally of parties and witnesses at the Central London County Court. It hardly needs saying that generalised views of that type provide no basis for approaching the evidence of the parties or witnesses in any particular case with scepticism from the outset. Judges should form their views of the evidence in a case on the basis of the evidence and the circumstances of that case. It follows that the explanation given by the judge for doubting whether the landlord was in fact a solicitor, namely his experience in other cases, did not provide a legitimate ground for his doubts. In a case which clearly involved the credibility of the landlord, his online researches before the start of the trial unfortunately but inevitably gave the impression that he was looking for evidence adverse to the landlord. This impression was all the stronger as the tenant had raised no issue or doubts on this subject and it was aggravated by the judge's unwarranted references to his experience of prosecuting swindlers and to impersonation as a solicitor being a criminal offence. Having, for whatever reason, doubts on this matter, he should have raised it with counsel at the start of the trial in a neutral manner, explaining the grounds for his doubts, inviting the comments of counsel for both parties and, if necessary, requesting inquiries to be made. The way in which he in fact raised the matter suggested that he might well have formed an adverse view of the landlord and his credibility.
58. Fortunately, the matter was cleared up when a search of the Law Society website was made, using the landlord's correct name. At that point, in the passage cited above, Mr Holland QC expressed the hope that "we'll start with a clean slate", to which the judge agreed. If the landlord or his counsel considered that, in view of the remarks previously made by the judge, there was evidence of apparent bias such that the judge should not continue to hear the case, an application should then have been made for the judge to recuse himself: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at [26].
59. It would remain open to the landlord to challenge the judgment on the basis of apparent bias, if the subsequent conduct of the case by the judge or the contents of his judgment displayed renewed evidence of apparent bias. Mr Holland has not been able to point to anything further in this respect, beyond paragraphs 21 and 22 of the judgment. In my judgment, they do not show any apparent bias against the landlord. The judge accepted that Mr El-Nidani was ill in hospital and, while it is true that the judge expressed some scepticism as regards the reason given for the absence of Mr Hilli, it is only fair to note that Mr Holland accepted before the judge that there was "a justified inclination of scepticism" (Day 3, page 43).
60. I am satisfied that neither the judgment nor the conduct of the case by the judge after the status of the landlord as a solicitor had been cleared up demonstrates any bias, or apparent bias, on the part of the judge. It may be that the judge failed to grapple directly with the issue of the credibility of the landlord because of the unfortunate way in which he had dealt with the landlord's position as a solicitor and his acceptance that he had been wrong. But the judgment is set aside because of the judge's failure to address and decide the central issue, not on grounds of alleged bias, which I reject.

Conclusion

61. For the reasons given above, I would allow the appeal and remit the case to the County Court for a re-trial before a different judge.

Lady Justice King

62. I agree.

Lady Justice Gloster

63. I also agree.