England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE BRISTOL
ON APPEAL FROM THE BRISTOL COUNTY COURT
Order of Recorder Christopher Sharp QC dated 12 April 2018

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/10/2018

Mr Justice Murray :

1. This is an appeal from the order of Recorder Christopher Sharp QC dated 12 April 2018 by which he entered judgment for the claimant, Mrs Wemimo Mercy Taiwo, in relation to her claims against the defendant, HomeLets of Bath Limited ("HBL"), for harassment and assault, with damages to be assessed, and in which he ordered costs in favour of Mrs Taiwo.
2. HBL applied for permission to appeal, with numerous grounds of appeal (12 in its original grounds of appeal and 10 in its amended grounds of appeal) and gave notice in its Appellant's notice that it would seek to introduce evidence that was not before the trial judge ("fresh evidence") in the form of a letter dated 10 April 2012 from Mrs Taiwo to the Bath Police about the incidents that formed the basis of her civil claims against HBL ("the 10 April 2012 letter").
3. The application for permission to appeal was considered on paper by Dingemans J, who refused permission on all grounds other than the following:

i) whether the judge should have admitted evidence from Mr Abayomi Odebode; and

ii) whether fresh evidence in the form of the 10 April 2012 letter should be admitted.

4. HBL renewed its application for permission in relation to the remaining amended grounds of appeal at an oral hearing before Andrews J on 10 October 2018. She refused permission on all of those grounds. The grounds on which permission was refused included (i) the judge having been wrong to treat Mrs Taiwo as a credible witness where her evidence was not corroborated ("Ground 6") and (ii) the judge having wrongly "stepped into the arena" of the trial and thereby having ceased to act judicially ("Ground 8"). I will revert to these rejected grounds shortly.
5. Accordingly, there were two issues for me to consider at the hearing of this appeal. The hearing took the full day, leaving me insufficient time to prepare and deliver a judgment on the date of the hearing. I therefore decided to reserve my judgment overnight and hand it down the following morning. This is that judgment.

Background

6. The background is that in September 2009 an assured shorthold tenancy was granted to Mr Uchenna Jonathan Nwanokwu of Flat 4, Newland House, Lansdown Road, Bath BA1 5RE for a period of six months, and then another assured shorthold tenancy was granted to him for a six month term commencing 1 April 2010. The landlord's agent was HBL, a letting agency. Mr Nwanokwu subsequently changed his name in September 2010 to Ayobamidele Taiwo. Mrs Taiwo is his wife.
7. Mr Taiwo had written to HBL in June 2010 indicating that his wife would be moving from London to Bath to join him and enquiring as to whether they knew of a larger flat to let. He then wrote to enquire whether it was necessary to update his tenancy agreement to allow for his wife's presence. HBL informed him that no joint tenancy would be granted, and in the circumstances the landlord required the agents to serve a notice under section 21 of the Housing Act 1988 to recover possession on the expiry of the tenancy.
8. Mrs Taiwo moved to the flat in June. In July she spent about two weeks in hospital before her baby was born on 28 July 2010. It was a difficult birth, with complications, which the judge noted in his judgment at [11] had some effect on her mental state.
9. In August Mr Taiwo did not pay his rent, and when HBL chased him for payment, he replied by email that he was himself in hospital, but that he had arranged for a cousin to deal with matters on his behalf, including payment of the rent and complying with the notice to quit. There was further correspondence between Mr Taiwo and HBL which is set out in more detail in the judgment below. Mr Taiwo's principal contact at HBL was Mrs Caroline Arundell who worked for HBL, and the correspondence just referred to was between Mr Taiwo and Mrs Arundell.
10. Mrs Taiwo, as a litigant in person, brought an action against HBL for damages in respect of what she alleged to be a course of conduct over five days in 2010, with specific relevant events occurring on 30 September, 1 October and 5 October. She founded her action on the Protection from Harassment Act 1997 and the Protection from Eviction Act 1977. She also made allegations of assault and false imprisonment. The torts were committed by Mrs Arundell acting on behalf of HBL and by others acting under her direction. The consequences of the torts, Mrs Taiwo alleged, was severe injury to her mental health.
11. An order was made for a split trial, and the judge heard the trial of liability over three days on 9, 10 and 11 April 2018. I had the transcript before me and the opportunity to consider it in detail. The judge handed down his judgment on 12 April 2018. He made the order appealed against on 12 April 2018. On the second day of the trial he made a ruling about the admission of Mr Odebode's evidence, for which there was a separate transcript, which I have reviewed.
12. At the hearing before me, Mr Christopher Maynard for HBL took first the issue of the admission of the 10 April 2012 letter as fresh evidence and then addressed the issue of the judge's admission of Mr Odebode's evidence. I will therefore also deal with them in that order.

Admission of the 10 April 2012 as fresh evidence

13. The 10 April 2012 letter was written by Mrs Taiwo and addressed to the "Officer-in-charge" at Bath Police, Manvers Street, Bath BA1 1JN. The subject heading is "Re: Reported Harassment and hostage incidence [sic]". It runs to two pages and sets out a version of the events that occurred over the period from 30 September 2010 to 5 October 2010, which formed the basis for the civil claims heard by the judge below. In the letter Mrs Taiwo urged the Bath Police to launch a criminal investigation in to those incidents.
14. HBL wishes to rely on the 10 April 2012 letter for its alleged inconsistencies with the evidence given in her witness statement for the trial dated 28 September 2017. The basic thrust of Mr Maynard's submissions was that the trial below had turned principally on the judge's relatively favourable assessment of Mrs Taiwo's credibility and relatively unfavourable assessment of Mrs Arundell's credibility. I note at this point that, sadly, Mrs Arundell passed away in 2014 and therefore her evidence was introduced as hearsay. Mr Maynard stressed that he was not seeking to go behind the refusal of permission to appeal in relation to Ground 6, although at times he did seem to be sailing close to the wind in that regard.
15. Mr Maynard's case was, in essence, that had the judge seen the 10 April 2012 letter, it would have materially altered his assessment of the credibility of Mrs Taiwo.
16. CPR 52.21(2)(b) requires the court's approval before fresh evidence can be received by an appeal court. The conditions that must be satisfied before doing so where famously set out in Ladd v Marshall [1954] 1 WLR 1489 (CA). As noted in the White Book at 52.21.3, citing Terluk v Berezovsky [2011] EWCA Civ 1534, while CPR 52.21(2)(b) is the primary rule, coupled with the duty to exercise it in accordance with the overriding objective, the Ladd v Marshall criteria effectively cover the range of issues that must be considered in deciding whether to exercise the court's discretion to admit fresh evidence in a particular case.
17. The Ladd v Marshall criteria are that:

i) the evidence could not have been obtained with reasonable diligence for use at the trial.

ii) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

iii) the evidence must be such as is presumably to be believed; it must be apparently credible, although it need not be incontrovertible.

18. Considering each of these in turn:

i) I am not satisfied that HBL could not have obtained the evidence for use at the trial had it exercised reasonable diligence. As to this:

a) HBL provided evidence, in the form of a witness statement from Mr Brendan O'Donnell, a solicitor at Juliet Hardick Solicitors, HBL's solicitors, which was handed up at the beginning of the appeal hearing, that HBL had served a Request for Further Information ("RFI") dated 28 March 2018, 12 days before trial (although, due to the Easter weekend, only 6 business days before trial), seeking, among other things, a copy of the 10 April 2012 letter.

b) I note that the RFI specifies that the further information requested be provided by 6 April 2018, and that Mrs Taiwo complied with this. A copy of her response was exhibited to Mr O'Donnell's witness statement. In her response, Mrs Taiwo said that she no longer had a copy of the 10 April 2012 letter as she did not have a hard copy, but only a stored electronic copy, which was lost when her personal computer crashed in December 2015.

c) HBL complained that Mrs Taiwo's response was received only one business day before trial, but as I have noted, she met the deadline stipulated in the RFI.

d) On 10 April 2018 Mr O'Donnell contacted lawyers for the Bath Police, who responded after the trial on 13 April 2018, with a copy of the 10 April 2012 letter. Mr White took me to a letter dated 25 May 2012 from Bath Police to Mrs Taiwo, referring to the 10 April 2012 letter, which HBL had from at least October 2017 and possibly earlier. I was taken to other documents to support this point. The key question was why HBL had waited until 28 March 2018 to ask for the letter. There appears to be no good reason why it could not have been discovered by HBL months before that.

e) There is also adequate evidence that Mrs Taiwo was doing her best to obtain information from various sources and to disclose documents during the period prior to the trial. I do not think that she can be fairly criticised on that score.

ii) In my view, the letter would not have had an important influence on the result of the case.

a) The inconsistencies complained of by Mr Maynard between the 10 April 2012 letter and Mrs Taiwo's witness statement for trial were characterised by Mr White as "splitting hairs". That might be overstating it, but the judge would undoubtedly have taken into account the context and purpose of the 10 April 2012 letter. It was essentially instrumental. The purpose was to spur the Bath Police to undertake a criminal investigation. It was not prepared for use as evidence in a trial.

b) Many of the inconsistencies are clearly forensic exaggeration by Mrs Taiwo, for example, references in the 10 April 2012 to "daily harassment" (rather than its happening on some but not all days between 30 September and 5 October 2010) or "the mob" (rather than its being a couple of men accompanying Mrs Arundell). The 10 April 2012 letter expressed Mrs Taiwo's fear and anger inspired by the events of which she complains, but discounting for a degree of exaggeration, it was broadly consistent in its outlines with the evidence she gave in the trial.

c) The judge had, in paragraph 41(a) of his judgment of 12 April 2018, set out his assessment of Mrs Taiwo as a witness. He said:

"I also allow for her depression and anxiety and, in respect of the latter, in particular, I conclude that there was some exaggeration of recollection and some overreaction to some of the incidents which she related."

d) Taking this into account his overall assessment was that she was "a witness of truth". It is highly unlikely, in my view, that his assessment of her credibility would have been affected by the 10 April 2012 letter.

iii) As to the third criterion, it is not disputed that the letter is authentic, and that she sent it.

19. As to inconsistencies, during the hearing of the appeal I was shown a video recording that had been in evidence in the trial, which was taken on 30 September 2010. The video recording showed the front hall of the flat. It began with "noises off" in the form of the sound of keys being used. Mrs Arundell entered the flat, and then in response to the noise Mrs Taiwo came into the front hall carrying her relatively recently born baby. Mr Maynard said that the video showed no "physical abuse" and was inconsistent with Mrs Taiwo's account of that day in the 10 April 2012. It is true that Mrs Arundell did not touch Mrs Taiwo. The judge's assessment of this evidence in [44] of his judgment was, however, that the video shows Mrs Arundell to be "rude, condescending and insulting" and "quite unnecessarily so". She was:

"plainly threatening repossession and eviction despite knowing, as she must as a letting agent, that she could not do so without a court order, and then is scathing and insulting when C makes the point that it would be better when she had the order."

He continues:

"She [Mrs Arundell] makes a threat about returning the next day with a locksmith to change the locks and to repossess the flat. In my judgment this was designed to be and was threatening and calculated to alarm the claimant, a woman on her own, with a very young baby whose home has just been entered without permission by a stranger with a key."

Having seen the video myself, I agree completely with the judge's assessment. The 10 April 2012 letter is certainly no "smoking gun" (my words), and I am confident that it would have made no difference to the judge's assessment of Mrs Taiwo's credibility.

20. My conclusion, therefore, is that the Ladd v Marshall criteria for the admission of new evidence are not satisfied. More generally, it would not be consistent with the overriding objective to admit the 10 April 2012 letter as fresh evidence. That ground of appeal is therefore dismissed.

Admission by the judge of Mr Odebode's evidence

21. Mr Odebode is apparently a relative of Mrs Taiwo or her husband. He has a number of postgraduate degrees on topics unrelated to law and also completed a Graduate Diploma in Law at Lancashire University. He has no legal professional qualification and is not a trained advocate. He was forthright in acknowledging that he had assisted quite a number of family members in tribunal proceedings, including Mrs Taiwo, on prior occasions.
22. He was initially granted permission by the judge to act a lay representative for Mrs Taiwo and to speak for her at the trial. On the first morning of the trial, during the course of Mr Odebode's direct examination of Mrs Taiwo, Mrs Taiwo made references in the third person to a family member coming to the flat on 5 October 2010. Shortly before the lunch adjournment on the first day of trial, Mr Odebode on his own initiative revealed to the judge that he was the family member to whom Mrs Taiwo was referring in her oral evidence just before that point. He said that he was "not sure if that is something that I rightly should disclose now".
23. This was an unusual and difficult situation for the judge, who was clearly concerned to handle this development carefully, to keep the trial going if possible and to deal fairly with both sides. He withdrew permission for Mr Odebode to act as Mrs Taiwo's lay representative, but allowed him to continue to assist her in the capacity of a McKenzie Friend. Thereafter Mrs Taiwo represented herself and apparently did so reasonably competently.
24. Mr Maynard makes a number of complaints about the admission of Mr Odebode's evidence, but broadly, in my view, it boiled down to two substantive submissions:

i) The judge determined of his own motion that Mr Odebode should be a witness and give a witness statement. It is clear that he cannot do this: Jones v National Coal Board [1957] 2 QB 55, at page 64, per Denning LJ, referring on this point to In re Enoch & Zaretsky, Bock & Co [1910] 1 KB 327. The judge, according to Mr Maynard, departed from his judicial role and assumed the role of inquisitor. I note, in this regard, that HBL did not have permission to appeal on Ground 8 and in putting his submission in this way, he was again sailing close to the wind.

ii) If the judge is taken as having received an application from Mrs Taiwo to admit Mr Odebode's evidence at a very late stage, he failed to apply the now well-known Denton criteria (set out in Denton v TH White Ltd [2014] EWCA Civ 906 (Practice Note), [2014] 1 WLR 3926, and, in particular, the guidance at [24] – [38]).

25. In relation to the first submission, having carefully considered the transcript, I conclude that the judge did not call Mr Odebode of his own motion. He was sensitive to the fact that Mrs Taiwo was a litigant in person and was clearly attempting to reach a just solution, ensuring that he had all relevant evidence before him. The judge provided some guidance to Mrs Taiwo, as was quite proper when dealing with a litigant in person without formally advising her, but ultimately it was Mrs Taiwo's request that Mr Odebode's evidence be admitted. I therefore do not need to consider whether the principle relied on by Mr Maynard, citing Enoch & Zaretsky by way of Jones v National Coal Board, remains the position, unqualified, under the CPR. There was some discussion of this in submissions, but, as I have said, I do not need to consider it.
26. As to the judge's alleged failure to apply the Denton criteria to the late application to admit Mr Odebode's evidence, it is true that he does not make explicit reference to Denton, but it is equally clear that in substance he applied those criteria. It is the substance that matters. A careful reading of the transcript, including of his ruling on the admission of Mr Odebode's evidence, shows that he considered that the failure to provide the witness statement by the deadline stipulated in the directions for trial was a significant failure. It is also clear that he carefully considered why the default occurred, and that broadly there was no good reason for the default to have occurred. But his specific ruling on the admission of the evidence shows that he clearly concluded that in all the circumstances of the case, it was necessary to admit Mr Odebode's evidence in order for the court to deal justly with the application. He makes no specific reference to CPR 3.9(1)(a) and (b), but I am confident having read the transcript and his judgment that he would have had them firmly in mind.
27. Accordingly, this ground of appeal also fails.

Conclusion

28. The appeal is dismissed.
29. Costs should follow the event in the usual way. I will make an order that HBL pay Mrs Taiwo's costs relating to the appeal, to be assessed if not agreed.