England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
HIS HONOUR JUDGE JARMAN QC
[2016] EWHC 1257 (Ch)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/11/2017

Lord Justice Hamblen :

Introduction

1. This is an appeal against the order of HHJ Jarman QC (sitting as Deputy High Court Judge) whereby he dismissed the claim of the Appellant ("the Council") for possession of 10 Gladstone Avenue, Wood Green ("the Property").
2. The judge held that the Second Respondent ("Ms Ahmed") was a joint secure tenant of the Property together with her former husband, Mr Ahmed, pursuant to a tenancy agreement dated 10 October 1988. The Council contends that the judge was wrong so to conclude, that there is no subsisting tenancy and that Ms Ahmed is not a tenant, secure or otherwise, under any agreement relating to the Property.
3. Ms Ahmed seeks permission (if required) to cross appeal against the judge's rejection of her defence that it would not be proportionate to allow the claim for possession, in reliance on Article 8 of the ECHR.

Factual background

4. The general background was found by the judge to be as follows:

"6. ….. Mr Ahmed was already working in the UK and living with his mother prior to his marriage. He had a good command of the English language, unlike his wife. Upon marriage, she came to the UK from Bangladesh and lived with her new husband and mother in law. They lived first in Wales, where their first child was born, but when Mr Ahmed lost his job the family moved to Manchester, where the second child was born. The family moved to London where they lived in two or three different locations before moving to the property.

7. Each of these homes was rented and it was Mr Ahmed who dealt with the lettings because of his English language skills and because, said Ms Ahmed in her oral evidence given with the assistance of an interpreter, she trusted him. However, she also said that he and his mother never informed her of any of the accommodation decisions and she had no involvement in them.

8. In August 1986, when the family were living in a rented two room flat in north London, Mr Ahmed applied for rehousing. The application is not available, but a medical form in support is. The names of Mr Ahmed and his mother are written in at the top of the form. The first paragraph to be completed is titled "Details of persons included in this application," under which Mr Ahmed inserted his name in the box marked applicant, and in the column "relationship to applicant" he inserted the names of the rest of his family members with the relationship of each to him. Health issues were then written on the form relating to his mother including impaired mobility, to his older son, and to his wife who by then was pregnant, and reference was also made to the cramped living and sleeping conditions. Mr Ahmed then signed the form.

…..

10. The application was granted on the basis of homelessness….."

5. In October 1988, two tenancy agreements were signed in relation to the Property.
6. On 10 October 1988, Mr Ahmed signed a pro-forma tenancy agreement ("the first agreement") which stated that it was a joint tenancy and listed Ms Ahmed as the other joint tenant. This purported to grant a tenancy of the Property to commence on 31 October 1988. There was a space for signature by Ms Ahmed but she did not sign it. A Council representative signed as having witnessed Mr Ahmed's signature to the agreement.
7. On 19 October 1988, a second pro forma tenancy agreement ("the second agreement") was signed by the Council, Mr Ahmed, and his mother, Mrs Ahmed. This again stated that it granted a joint tenancy of the Property, this time listing Mr Ahmed and Mrs Ahmed as the joint tenants, to commence on 31 October 1988. In the box headed "Disposal of address vacated/Origin of letting" was handwritten "Amend tenancy". A Council representative signed as having witnessed Mr Ahmed and Mrs Ahmed's signatures to the agreement.
8. On 31 October 1988, the Ahmed family moved into the Property. The family comprised Mr Ahmed, Ms Ahmed, their three children (Martuja (born 1984), Mustafa (born 1986) and Ayesha (born 1986)) and Mrs Ahmed.
9. In 2002, Mr Ahmed left the Property. Both he and his mother wrote to the Council asking for the tenancy to be transferred into the names of Mrs Ahmed and Ms Ahmed, but this never took place.
10. On 11 September 2003, Mrs Ahmed signed a Notice of Termination of the second agreement.
11. On 9 January 2006, a third proforma tenancy agreement ("the third agreement") was signed by Mrs Ahmed. This stated that it granted a sole tenancy of the Property to her.
12. On the same day, Ms Ahmed and her son met with a representative of the Council to discuss the tenancy, expressing concern that it was in the sole name of Mrs Ahmed. There was dispute as to the content of this meeting: Ms Ahmed asserted that she was given an assurance that the tenancy would be transferred into her name if her mother-in-law died or left the property, but the judge found that this was a misunderstanding and no such assurance had been given.
13. At some point in 2010, Mrs Ahmed left the property and did not return to live there (she now lives elsewhere with her son and his new wife). Initially, she had requested that the third agreement be transferred into the name of Ms Ahmed, but she subsequently changed her mind and decided that she did not want to assign it.
14. On 11 July 2012, the Council purported to determine the third agreement by a Notice to Quit (the tenancy allegedly no longer being secure following the departure of Mrs Ahmed) and in October 2012 issued its claim for possession. The First Respondent, Mrs Ahmed, has had no part in the proceedings; the claim is defended by Ms Ahmed alone.
15. Ms Ahmed then applied through her solicitors for a grant of a tenancy in lieu of the assignment, relying in particular upon the period for which she and her family had lived at the property, the fact that two of the elder children worked locally and the medical conditions of herself and two of her children.
16. On 15 November 2013, Ms Ahmed's request was refused by the Council who stated that its Housing Allocation Policy 2011 did not permit grants of tenancy in lieu of assignment. Instead the Council offered a rental deposit to assist the family in renting a four bed property privately, and indicated that if this was not possible it would place the family in temporary accommodation pending the discharge of its homelessness duty.

The judgment

17. The judge dismissed the Council's claim for possession and held that Ms Ahmed was a secure tenant under the first agreement.
18. The judge determined that there was a relationship of agency between Mr Ahmed and Ms Ahmed, derived from an agreement implied from the course of conduct in which he had secured accommodation for himself, Ms Ahmed, and their family. In signing the first agreement Mr Ahmed acted as agent for his wife, making her a joint tenant.
19. This implied authority did not extend, however, to the surrender of the tenancy created by the first agreement and the second tenancy was therefore invalid.
20. Mr and Ms Ahmed entered into occupation of the Property in 1988 with security of tenure pursuant to the first agreement. This tenancy agreement was not properly surrendered and the Council was therefore not entitled to possession.
21. Although unnecessary to decide in light of the above conclusion, the judge further held that it would not have been disproportionate in breach of Article 8 ECHR to evict Ms Ahmed.

The Grounds of Appeal

22. The Council relies upon four grounds of appeal:

(1) The judge erred in law in finding that Mr and Ms Ahmed entered into possession of the Property in October 1988 as secure tenants pursuant to the first agreement;

(2) The judge erred in law (or in law and in fact) in holding on the basis of the primary facts found by him that Mr Ahmed had authority to execute the first agreement as agent for his wife;

(3) Alternatively, if ground 2 is rejected, the judge erred in law (or in law and fact) in holding that Mr Ahmed did not also act as agent for his wife in surrendering the first tenancy;

(4) The judge erred in law in failing to consider that the burden of establishing that Mr Ahmed acted as an agent for his wife, and the extent of his agency, rested with Ms Ahmed.

23. By a Respondent's Notice Ms Ahmed seeks to uphold the judgment for the following additional or different reasons:

(1) If there was no agency, the first agreement was ratified by Ms Ahmed so that the second agreement took effect as a concurrent tenancy;

(2) Mr Ahmed did not surrender the first agreement when he signed the second agreement;

(3) It would be disproportionate to make a possession order.

Appeal grounds (1)(2) and (4)

24. These grounds all relate to the judge's finding of agency.
25. In considering this issue the judge referred to Bowstead on Agency (20^th edition) Article 8 which provides:

"Agreement between principal and agent may be implied in a case where one party has conducted himself towards another in such a way that it is reasonable for that other to infer from that conduct assent to an agency relationship".

26. Assent to an agency relationship may therefore be inferred and it is not necessary for parties to have directed themselves to whether an agency relationship exists between them – see, for example, Garnac Grain Co Inc v HMF Faure & Fairclough [1968] AC 1130 at 1137C per Lord Pearson.
27. In considering whether or not assent is to be inferred it is obviously important to have regard to what an agency relationship is and thus to what the parties are meant to be assenting. A helpful definition of agency is provided in Article 1 of Bowstead as follows:

"(1) Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The one on whose behalf the act or acts are to be done is called the principal. The one who is to act is called the agent. Any person other than the principal and the agent may be referred to as a third party.

(2) In respect of the acts to which the principal so assents, the agent is said to have authority to act; and this authority constitutes a power to affect the principal's legal relations with third parties.

(3) Where the agent's authority results from a manifestation of assent that he should represent or act for the principal expressly or impliedly made by the principal to the agent himself, the authority is called actual authority, express or implied. But the agent may also have authority resulting from such a manifestation made by the principal to a third party; such authority is called apparent authority.

(4) A person may have the same fiduciary relationship with a principal where he acts on behalf of that principal but has no authority to affect the principal's relations with third parties. Because of the fiduciary relationship such a person may also be called an agent."

28. The usual characteristics of an agency relationship may be said to be authority for the agent to affect the principal's relationship with third parties, a fiduciary duty owed by the agent to the principal, and an ability on the part of the principal to exercise a degree of control over the agent. As this court observed in UBS AG (London Branch) v Kommunale Wasserwerke Leipzig GmbH [2017] EWCA Civ 1567 at [91]: "the absence of any of these main characteristics must …. be a significant pointer away from the characterisation of a particular relationship as one of agency, even though there may be rare exceptions."
29. Mr Westgate QC, who appears on behalf of Ms Ahmed, as he did at trial, emphasises that an appellate court will only rarely interfere with findings of fact made by a trial judge, and that this applies both to findings of primary fact and to inferences to be drawn from them such as, he submits, the conclusion that there was an agency. In this regard he has referred us to the judgment of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29 at [114]-[115].
30. In the recent Court of Appeal case of Grizzly Business Ltd v Stena Drilling Ltd & Anor [2017] EWCA Civ 94 the legal position was summarised as follows:

"39. The parties were broadly agreed upon the relevant law in the light of the recent Supreme Court decisions of Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600 and McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 the latter of which cited with approval Hamilton v Allied Domecq Plc [2006] SC 221, paragraph 85. In the latter case it was said:

"If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance."

In Henderson the Supreme Court (paragraph 62) also said:

"It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached."

We have also had regard to the last three reasons why appellate courts are warned not to interfere with findings of fact unless compelled to do so as enumerated by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5:

"iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."

40. There will be (and have been) rare cases where an appellate court is compelled to set aside findings of fact made by an experienced trial judge but we are far from convinced that that is the case here. None of the challenged findings can be said to be unsupported by the evidence and the decision is certainly not one that no reasonable judge could have reached…"

31. In summary, such interference will only be justified where a critical finding of fact is unsupported by the evidence or where the decision is one which no reasonable judge could have reached.
32. In the present case Mr Grundy QC, who appears for the Council, as he did at trial, contends that the conclusion of agency was unsupported by the primary facts as found by the judge and unsupported by the evidence.
33. The findings upon the basis of which the judge concluded that there was an agency relationship were the general background paragraphs set out above and the following:

"11. Ms Ahmed says that she was unaware until much later of the application to rehouse, or of the first (or indeed the second) agreement and that she left it to her husband to deal with accommodation. Neither agreement was signed by her. She agreed in cross examination that he acted on her behalf in such matters at this time, although that changed later on. In her witness statement she gave details of controlling and abusive behaviour on the part of Mr Ahmed. She added in her oral evidence that "mother and son used to do everything together.

…..

15. The focus of oral submissions, as to whether the first agreement was effective to give Ms Ahmed a contractual right to a tenancy, was upon whether in signing it Mr Ahmed was acting as the agent for his wife. Mr Westgate also submits that the course of conduct, whereby Ms Ahmed left it to her husband to find accommodation for the family, gave rise to an implied agreement that it was reasonable for Mr Ahmed to infer assent by his wife to an agency relationship so as to enable him to sign the first agreement on her behalf (see Bowstead & Reynolds on Agency, 20^th edition Article 8).

16. Mr Grundy does not dispute that as a principle, but submits that such inference is not reasonable where Ms Ahmed did not then know of any of her husband's dealings in respect of the property. However, in my judgment the course of conduct in Mr Ahmed securing a series of rented accommodation for the family beforehand with his wife accepting that he could act for her in doing so and trusting him is sufficient to give rise to an implied agency in the renting of the property. That in my judgment also meets Mr Grundy's point that she could not have had the necessary intention to enter into a legal agreement."

34. In reaching his conclusion that there was an agency the judge therefore relied upon his finding that there was a "course of conduct" comprising (i) Mr Ahmed securing a series of rented accommodation for the family, (ii) his wife accepting that he could act for her, and (iii) trusting him.
35. As to (i), it is correct that it was Mr Ahmed who secured accommodation for the family, but there is no finding (or evidence) that he did so in his and Ms Ahmed's name, nor that he discussed the tenancy terms with her, nor that she had any awareness of such terms. Indeed, the judge's finding was that he never informed her of any of the accommodation decisions and that she had no involvement in them – at [7].
36. As to (ii), there is no finding (or evidence) that Ms Ahmed accepted that Mr Ahmed could act for her in entering into tenancy agreements on her behalf. She had no involvement in those decisions and was not informed about them. The judge's findings do not bear out the inference that Ms Ahmed was consenting to Mr Ahmed acting for her in any legal or agency sense. In a broad, factual sense Mr Ahmed was no doubt acting for her and their children in that he was securing accommodation for them and thus for their benefit. That, however, does not tell one anything about the legal capacity in which he was so doing.
37. Prior to the agreements in issue, the only occasion relating to the securing of accommodation which is addressed in any detail in the judgment is that relating to the homelessness application – at [8]. In relation to that application the findings made are that Mr Ahmed was the only named applicant and the only signatory. The rest of his family were included on the basis of their relationship to "the applicant". This would therefore appear to be an example of Mr Ahmed being a sole rather than joint applicant with Ms Ahmed, and of Ms Ahmed's status being as a dependent and effectively no different to that of her children.
38. As to (iii), again the fact that Ms Ahmed may have trusted Mr Ahmed to secure accommodation for herself and their family does not tell one anything about the legal capacity in which he was so doing.
39. The "course of conduct" relied upon by the judge does not therefore involve Mr Ahmed entering into tenancy agreements as an agent for Ms Ahmed, or her consenting to him doing so or her trusting him to do so. It is difficult to see how such a course of conduct could ever establish mutual assent to so doing.
40. In reaching his conclusion, the judge does not appear to have had regard to whether there was assent to any of the usual characteristics of agency, as summarised above. In the present case, authority for the agent to affect the principal's relationship with third parties means authority to contract on Ms Ahmed's behalf and commit her to the legal obligations owed by a joint tenant, including the obligation to pay rent. On the judge's findings this was neither discussed nor known about. She simply had no involvement. As to the owing of a fiduciary duty, it is difficult to see how this could arise without at least some request by Ms Ahmed for Mr Ahmed to act on her behalf, as to which there is no finding. As to control, on the judge's findings Ms Ahmed had no control over Mr Ahmed. It was he who would take the accommodation decisions without involving or even informing her. It was he who was "controlling" and it was he and his mother, rather than he and her, who "used to do everything together".
41. On behalf of Ms Ahmed, it is submitted that the first agreement itself is evidence of agency and that it must be taken to have acknowledged Mr Ahmed's authority to sign on her behalf. But, the evidence of the agreement itself is equivocal. Although the first agreement purports to be a joint tenancy and identifies Ms Ahmed as a joint tenant the space for her signature is left blank. Whilst Mr Ahmed signs the agreement, that is to be expected as he is one of the named joint tenants and he does not purport to do so on Ms Ahmed's behalf. That evidence is equally consistent with an agreement that has only been signed by one of the intended joint tenants.
42. For all these reasons, in my judgment the findings made by the judge do not justify the conclusion reached by him that there was an agency relationship.
43. If one has regard to the evidence rather than just the judge's findings, the position becomes even plainer. In Ms Ahmed's evidence in cross examination the extent of her lack of involvement is made clear. In evidence, she stated that:

(1) She had had no involvement in finding accommodation for the family;

(2) She was unaware that Mr Ahmed had applied to the Council as homeless;

(3) She did not know that the Council had offered them a tenancy of the Property;

(4) She did not know about the appointment to sign the first agreement;

(5) She did not know about the appointment to sign the second agreement.

44. As she stated in evidence:

"Whenever he would do anything he wouldn't involve me, so he wouldn't tell me what was being done. He would never tell me anything….

Whatever he would do he would do of his own accord".

45. Having had full regard to the evidence (all of which is before the court) and to the judge's findings of primary fact, I conclude that there was no proper evidential basis for the judge's conclusion that Mr Ahmed was authorised to act and did act as Ms Ahmed's agent in entering into the first agreement.

Respondent's Notice ground (2) – no surrender

46. I propose to consider this ground first as it is relevant to the issue of ratification. For the purpose of so doing I shall assume that there was no ratification and no agency.
47. Mr Westgate submits that, given that there was no relinquishment of possession, there was here no conduct only consistent with the cesser of the tenancy under the first agreement. In those circumstances, there was no surrender by operation of law but simply concurrent tenancies. He relies on the summary of the law set out by Jacob LJ in Artworld Financial Corporation v Safaryan [2009] EWCA Civ 303, [2009] L & TR 20 at [11]-[15]:

"11. I turn to the law. It was common ground that the legal test for surrender by operation of law, is essentially accurately set out in Woodfall's Law of Landlord and Tenant. I am reading from an edition which appears to have a date of January 2007. Paragraph 17.018 says:

"There is no legal distinction between a surrender by operation of law and an implied surrender. The terms surrender by operation of law 'is applied to cases where the owner of a particular estate has been a party to some act the validity of which he is afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist …'"

12. There the law treats the doing of such an act as constituting a surrender. This principle does not depend on the actual intention of the parties but on estoppel. A surrender by operation of law does not depend on the intention of the parties; it takes place independently and, even in spite of intention, the foundation of the doctrine is estoppel.

13. Most critically for present purposes is para.17.020, headed "Act must be unequivocal":

"The conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended. There must either be relinquishment of possession and its acceptance by the landlord, or other conduct consistent only with the cesser of the tenancy, and the circumstances must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ceased."

14. The judge, having made the finding of fact to which I have referred, said this at [78]:

"In my judgment, considering all the facts above, the acts of the Tatanaki family, which Artworld must be taken to have authorised, amount to much more than merely protecting the property or seeking to make the best of the Safaryans having departed, and go significantly beyond anything consistent with the continued existence [of] the tenancy."

The test she applied was to look for acts significantly beyond anything consistent with the continued existence of the tenancy.

15. Mr Driscoll was inclined to say that that was not quite right; that he preferred the formulation in Woodfall. To my mind, it makes no difference one way or the other. If the landlord has done something significantly beyond anything consistent with the continued existence of the tenancy, he will have done something which is unequivocal…."

48. In the present case, if there was no agency, then the first agreement would have been an agreement with Mr Ahmed as sole tenant. Although he did not enter into possession of the Property he had the right to do so. At his request that tenancy was replaced by letting the Property to Mr Ahmed and Mrs Ahmed as joint tenants under the second agreement. He thereby relinquished his right to sole possession. The second agreement was a valid agreement, being in writing and duly executed, and it was an agreement with a different tenant. It also stated on its face "Amend tenancy". In these circumstances, I accept the Council's case that Mr Ahmed's act, in signing the second agreement, was an unequivocal act inconsistent with the continuation of the first agreement. This surrender was accepted unequivocally by the Council when it granted a tenancy under the second agreement, at which point the first agreement terminated.
49. I accordingly reject the contention that there was no surrender. In this connection, it is to be noted that unless the first agreement was surrendered, the second agreement would have taken effect as a concurrent tenancy, potentially precluding the Ahmed family from enjoying security of tenure under the Housing Act 1985. The judge found at [28] that this 'potential absurdity' cannot have been intended by any of the parties.

Respondent's Notice ground 1 - ratification

50. Mr Westgate relies on the general principle regarding ratification set out in Bowstead at paragraph 2-047:

"Where an act is done purportedly in the name or on behalf of another by a person who has no actual authority to do that act, the person in whose name or on whose behalf the act is done may, if the third party had believed the act to be authorised, by ratifying the act, make it as valid and effectual, subject to the provisions of Article 14 to 20, as if it had been originally done by his authority, whether the person doing the act was an agent exceeding his authority, or was a person having no authority to act for him at all."

51. Ratification may be express or by conduct. In the instant case, Ms Ahmed relies on the filing of her amended defence and counterclaim in October 2014, in which she asserted for the first time an agency relationship between herself and Mr Ahmed in respect of the first agreement.
52. Article 19 of Bowstead sets out the limits on ratification as follows:

"Ratification is not effective where to permit it would unfairly prejudice a third party, and in particular –

(1) Where it is essential to the validity of an act that it should be done within a certain time, the act cannot be ratified after the expiration of that time, to the prejudice of any third party;

(2) Ratification may not be recognised if it will affect proprietary rights in either real or personal property, including intellectual property rights, which have arisen in favour of the third party or others claiming through him since the act of the unauthorised agent;

(3) The ratification of a contract can only be relied on by the principal if effected within a time after the act ratified was done which is reasonable in all the circumstances."

53. Particular examples of the limits on ratification which are relied on by the Council are: (i) ratification cannot defeat the grant of an estate which, once vested, cannot be divested: Bolton Partners v Lambert (1889) 41 ChD 295 at 307, and (ii) a purported principal cannot ratify an act where the would-be agent and the third party have undone that which took place between them: Walter v James (1870-71) LR 6 Ex 124.
54. The short answer to the case on ratification is that once the sole tenancy under the first agreement had been surrendered and replaced by the joint tenancy under the second agreement there was no agreement left to ratify. Any ratification would have had to have occurred before the surrender of that sole tenancy, which is not and could not be alleged. This is a clear example of the would-be-agent and the third party undoing what had taken place between them long before any purported ratification.
55. Mr Westgate disputes this and suggests that the limit to ratification exemplified by Walter v James only applies where the act undone is to be considered as "null and void" - the expression used by Cotton LJ in Bolton Partners v Lambert at p307. He submits that the "true principle" is as stated by Roch LJ in his judgment in Presentaciones Musicales S.A. v Secunda [1994] Ch 271 at p284G-285H:

"…. In my view the correct statements of principle are contained in the judgment of Cotton L.J. in Bolton Partners v. Lambert (1889) 41 ChD 295 , 306-307:

"The rule as to ratification by a principal of acts done by an assumed agent is that the ratification is thrown back to the date of the act done, and that the agent is put in the same position as if he had had authority to do the act at the same time the act was done by him. . . . The rule as to ratification is, of course, subject to some exceptions. An estate once vested cannot be divested, nor can an act lawful at the time of its performance be rendered unlawful by the application of the doctrine of ratification."

In this part of his judgment, as I read it, Cotton L.J. was giving examples of exceptions to the general principle of ratification rather than setting out an exhaustive list of exceptions. The Court of Appeal in that case treated the decision in Bird v. Brown, 4 Exch. 786 as an instance of the first exception, namely that ratification could not operate to divest ownership, in that case of goods, which had previously vested in the purchaser, the purchaser's ownership of the goods being rendered free of any qualification by the termination of the transit of the goods. Another exception is that in Walter v. James (1871) L.R. 6 Ex. 124. There the defendant was indebted to the plaintiff. The amount of the debt was disputed. S. who had acted as the defendant's attorney in the matter of the plaintiff's claim, but after his authority had been withdrawn by the defendant, paid the plaintiff £60 in discharge of the disputed claim. Later S. requested the plaintiff to repay him the £60 which the plaintiff did. The plaintiff then sued the defendant for debt. The defendant pleaded as to £60 of the alleged debt that that sum had been paid by S. and the defendant was then entitled to ratify that payment. The court consisting of Kelly C.B., Martin and Cleasby BB. decided that the plaintiff and S. had, prior to any purported ratification by the defendant, been entitled to cancel what they had done and that consequently the plea of payment was not proved. In the course of his judgment Kelly C.B. said, at p. 127:

"And now the question is, whether the defendant can by his plea of payment adopt and ratify the act of Southall, although before action that act had, by arrangement between the plaintiff and Southall, been undone."

Thus if the act which the putative principal later seeks to ratify has been undone or cancelled by the assumed agent there can be no effective ratification.

It follows in my view that where the putative principal seeks to ratify not a contract but an act done by an assumed agent - in this case the issuing of the writ - the first question is whether that act still existed at the moment of the purported ratification. In Walter v. James, L.R. 6 Ex. 124 it did not because the £60 had been repaid. In the present case the writ came into existence on 19 April 1988 and remains in existence unless and until it is struck out as being an abuse of process. It was still in existence in May 1991 when the liquidators purported to ratify it. I would conclude that ratification in this case has been effected, unless another exception established by the case law to the general principle applies.

The other exception which has to be considered in the present case is that indicated by Cotton L.J. in the passage cited by the words "an estate once vested cannot be divested." I would suggest that that exception ought to be stated in these terms: that the putative principal will not be allowed to ratify the acts of his assumed agent, if such ratification will affect adversely rights of property in either real or personal property including intellectual property, which have arisen in favour of the third party or others claiming through him since the unauthorised act of the assumed agent."

56. This passage does not support Mr Westgate's submission that the limit or exception recognised in Walter v James only applies where the act undone is "null and void", and therefore is to be treated as if never happened; nor is there a principled reason for limiting it in this way. As Roch LJ explains, the question is whether the act "still exists" at the moment of ratification, not whether it is to be treated as if it never existed. In the present case, the first agreement did not "still exist" at the time of the purported ratification; it had long since been surrendered and terminated.
57. It is further to be noted that the delay in this case is extreme, there being over 26 years between the act sought to be ratified and the purported ratification. We have been shown no ratification case that involves delay of anything approaching this length.
58. I accordingly conclude that there was no ratification.

Respondent's Notice ground (3) - proportionality

59. The Court granted Ms Ahmed's application for permission to appeal out of time. It has always been included as a ground in the Respondent's Notice and there has been no suggestion of any prejudice to the Council arising out of the late application for permission.
60. The judge found as follows in relation to the issue of proportionality:

"41. That leads on to the final ground, relating to Article 8 and the right to respect for a person's home. Article 8(2) provides so far as material:

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society . . . for the protection of the rights and freedoms of others".

42. This ground is also undermined to some extent by my finding of a lack of assurance in 2006. In carrying out the required balance, it is accepted by Mr Westgate that ordinarily the right of the authority to recover possession at common law and to decide who should occupy its accommodation will provide a very strong case for the making of an order which would be proportionate, but that may be factors which tell the other way (see Manchester CC v Pinnock [2010] 3 WLR 1441; [2010] UKSC 45).

43. Such factors here are, he submits, the length of occupation, the alleged assurance in 2006, the disability of Ms Ahmed and the impact of eviction upon her. At the moment, she needs constant care by two of her children who so arrange their work patterns that one of them can be with her at all times. She is presently in receipt of Disability Living Allowance, at the higher rate in terms of care and mobility. Whilst the needs of others must be taken into account, it should not be the case that the needs of one family should trump the needs of this family.

44. I accept those submissions, but as Mr Grundy eloquently puts it, social housing does not mean a home for life. There may be a time in a person's life when it is needed more than others, for example when there are several young children in the family. Others now have a pressing need for a four-bedroom home just as the Ahmed family did in 1988. The family has been given sufficient security for the children to make their own way in the world, and this court, by dint of a proportionality argument should not in effect make the allocation which is a matter for the authority."

61. As Mr Grundy submits, an appellate court is reluctant to intervene with a trial judge's evaluative judgment on an issue such as proportionality and the essential question is whether the judge has reached a decision which was open to him. As stated by Lewison LJ in Southend-on-Sea BC v Armour [2014] EWCA Civ 231, [2014] HLR 23 at [17]-[20]:

"17. …. the test which the courts must apply, whether described as proportionality or as deciding whether eviction is "necessary in a democratic society" is not, in my judgment, a bright line test. It is more in the nature of a value judgment. If a judge is required to apply a clear legal rule to a given set of facts, an appeal court can decide for itself whether that given set of facts measure up to the legal rule. But "the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision": Re Grayan Building Services Ltd [1995] Ch. 241 at 254 per Hoffmann L.J. In my judgement, this is the kind of decision in which an appeal court should be reluctant to reverse the value judgment of the trial judge.

18. The question of proportionality in relation to art.8 arises in many fields of law: immigration and the placement of children for adoption are two examples. In Re B (A Child) [2013] UKSC 33; [2013] 1 WLR 1911 Lord Neuberger (with whom Lords Wilson and Clarke agreed) said at [91]:

"That conclusion leaves open the standard which an appellate court should apply when determining whether the trial judge was entitled to reach his conclusion on proportionality, once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessments. In my view, an appellate court should not interfere with the trial judge's conclusion on proportionality in such a case, unless it decides that that conclusion was wrong."

…..

20. Accordingly in my judgement the question for this court is not whether we would have made the same decision as the recorder, but whether her decision was one that was open to her."

62. Mr Westgate accepts that the threshold for establishing that eviction is disproportionate is a high one, but contends that this is an exceptional case and that the judge failed to give due weight to the following:

(1) The length and circumstances of Ms Ahmed's occupation, including that her lack of secure status arises because she did not become or remain a joint tenant through the actions of her then husband in respect of whom there was unchallenged evidence of abusive and controlling behaviour.

(2) The assurance that Ms Ahmed believed she had been given in 2006.

(3) Ms Ahmed's needs as a disabled person, and the impact of eviction from her home upon her.

63. Other than the circumstances of Ms Ahmed's occupation, these are all factors that the judge expressly took into account, as made clear at [43] of his judgment. The weight to be given to them was a matter for his assessment and judgment. As to the circumstances relied upon, given that there was no agency, and the evidence that she had no involvement in or knowledge of the arrangements made for the family's accommodation, it is difficult to see how it can be said that Mr Ahmed unfairly prevented her from becoming a joint tenant.
64. It is further submitted that the judge erred in (i) treating the prospective decision by the Council to allocate the accommodation to another family as determinative, whereas it could only justify the possession order if it was proportionate to make it having regard to Ms Ahmed's circumstances, and (ii) wrongly deferring to the judgment of the Council rather than reaching a decision for himself as to whether the eviction was proportionate.
65. The judge was entitled to place considerable weight on the prospective decision to allocate the accommodation to another family. As stated in Manchester CC v Pinnock [2010] UKSC 45 at [46]:

"… ordinarily the right of the authority to recover possession … and to decide who should occupy its accommodation will provide a very strong case for the making of an order which would be proportionate, but that [there] may be factors which tell the other way".

66. He did not, however, regard it as determinative since he expressly carried out a proportionality exercise balancing the factors for and against eviction. On that issue he arrived at his own decision and gave clear and sufficient reasons for so doing.
67. In my judgment, no arguable error of law has been shown in the judge's approach to or determination of the issue of proportionality, the conclusion he reached was one which was open to him and I would dismiss the cross-appeal on this ground.

Conclusion

68. For the reasons outlined above I would allow the appeal on grounds (1) and (2). In these circumstances, it is not necessary to address ground (3). I would dismiss the cross-appeal on proportionality.

Lord Justice Lewison :

69. I agree.