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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough Of Southwark [2002] EWCA Civ 79 (23 January 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/79.html Cite as: [2002] EWCA Civ 79

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(His Honour Judge Worthington)

		Royal Courts of Justice Strand London WC2 Wednesday, 23rd January 2002

Wednesday, 23rd January 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal an order of His Honour Judge Welchman made on 3rd December 2001. The judge dismissed an appeal by the applicant from an order of District Judge Worthington on 7th September 2001 when he made an outright possession order against the applicant and ordered him to pay arrears of rent of approximately £2,366.
2. The applicant was the tenant of 12 Symington House, Lawson Estate, London SE1, a property owned by the respondent and let to the applicant under a secure tenancy pursuant to the Housing Act 1985. At the material time, the rent was £56.00 per week. The respondent sought an order for possession on Ground 1 of Schedule 2 to that Act:

"Rental lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or has not been performed".

3. A notice seeking possession had been served on the applicant on 14th December 2000 when the arrears were just over £500. By the time that the claim was heard on 7th September 2001, the arrears had increased to the sum ordered to be paid by the District Judge. There had been two previous sets of proceedings in which the respondent had claimed possession on the same grounds. The first was in 1998. As far as those proceedings were concerned, the ultimate order by His Honour Judge Cox was to adjourn the matter. The applicant asserts before us that the arrears at that stage were less than £200, and accordingly no application for possession should have been made. A second claim for possession was made in 1999 which culminated in an outright order for possession by His Honour Judge Cox, but that was not enforced, the applicant shortly after the order having been made having cleared the arrears. The applicant asserts that the indebtedness incurred at that time was partly as a result of the fact that he was a student and was in financial difficulties and the housing benefit to which he was entitled had not been properly paid. The reason that the matter got to court, he asserts, was because he was out of the country at the time when the proceedings were due to be heard and that the consequence was that the matter proceeded to the making of an order even though otherwise that might not have been the case.
4. The history of the matter after the respondent had served the notice seeking possession is, however, revealing. It is apparent from what I have already said that from the date of the notice the arrears increased from £500 to in excess of £2,300. This was substantially due to the fact that no payments at all were made after May 2001. This is surprising. At that stage the applicant appreciated that the claim was being made; there had been conversations between him and the respondent's representative, a Miss White. The applicant has put before us by way of telephone attendance notes his account of what he asserts was said in those telephone conversations. It is clear that there was significant scepticism on the part of Miss White as to the applicant's ability or, alternatively, willingness to pay.
5. The first note that we have is of a conversation dated 10th May 2001. In that conversation it is said by the applicant that he and Miss White discussed matters on the basis that he would be able to reduce the arrears, that Miss White was indicating to him that the offer must be reduced to writing and that he should maintain his current rent and pay off the arrears. The only document which indicates that the applicant responded to that request is what appears to be a draft document setting out a consent order, which is in itself undated but which essentially states that the respondent's claim was to be adjourned on terms that the applicant paid £300 off the arrears: £300 by the end of May and then pay the current rent plus £350 by the twenty-eighth day of each calendar month thereafter. The second clause of that order was that if in fact the defendant failed to comply with those terms, the respondent was to be entitled to restore the action on notice with a view to seeking outright possession.
6. As I have indicated, despite the fact that it was clear from the note that he himself had made of the telephone conversation of 10th May, taken together with the draft order that he would appear to have drafted, that very substantial payments were expected both by way of payments off the arrears and in addition to the payment of the current rent, nothing was paid. In those circumstances the eventuality, which he accepted by the draft order, was that the respondents were to be entitled to ask for an outright order for possession. Be that as it may, he asserts that there was no agreement on that and that it was as a result of that that he did not in fact make any payments.
7. It is in those circumstances interesting to note that the next telephone conversation of 10th August 2001 records, according to the applicant, that Miss White was saying that, if she decided to press on with possession orders, she would be seeking a suspended order. That I confess to be a surprising assertion having regard to the history of the matter. It is perhaps more pertinent to consider the note that he makes of the telephone conversation of 31st August 2001, by which time, as has been appreciated, not only had he made no payments by way of rental, nor had he sought to reduce the arrears and in that conversation asserted that he was unable to furnish the court with a defence because, he said, he had not received from the respondent a copy of the tenancy agreement. In other words, he was adopting a technical stance at that stage. Not surprisingly, Miss White - and this may indeed be an accurate recording of her retort - said that he must put his case to the court.
8. It was in those circumstances that matter came before the District Judge, who concluded that an outright order for possession should be made. I will return in more detail to that hearing later.
9. The matter then proceeded in a number of different directions. The applicant sought by way of application to the Chancery Division to challenge the decision and by application to the Queen's Bench Division. Perhaps not surprisingly, neither division of the High Court felt that there was any jurisdiction to provide any relief, bearing in mind the fact that the applicant was entitled to appeal. The only relief that he got was a stay of execution for seven days from Laddie J in the Chancery proceedings, which enabled him to file his notice of appeal which eventually resulted in the decision of His Honour Judge Welchman.
10. Before the matter came before Judge Welchman, the appeal had come before His Honour Judge Behar on two occasions. On the first occasion on 25th October 2001, it was apparent there were no notes, or evidence, or reasons for the decision. The judge therefore adjourned the matter until 31st October for the applicant to be legally represented.
11. He was legally represented, as we understand it, on that occasion. Again there was no note. It should be appreciated, of course, that the position on an appeal such as this is that it is the appellant's responsibility to ensure that the appropriate documentation is brought before the court. But it is certainly correct that there was nothing on the file which indicated that there were any notes of either evidence or judgment. The hearing before the District Judge had, in fact, simply comprised representations and evidence on behalf of the local authority, from Mrs White and the submissions of the applicant himself.
12. His Honour Judge Behar made an order on 31st October that the District Judge should produce notes of the hearing, it having transpired that no recording had been made, although that would have been the normal practice. On the day of the hearing before His Honour Judge Welchman, a typed note was made available, apparently from the District Judge, setting out on its face those present, the evidence of Miss White, the submissions of the applicant, the order that he had made and the reasons that he had given. It is correct to say that it is not signed, in the sense of there being any handwritten signature, but it is subscribed "District Judge Worthington", and dated 1st November 2001.
13. The notes of evidence from Miss White recorded the arrears, asserted that this was the third set of proceedings for non-payment of rent and recorded her submission that the respondent was seeking outright possession.
14. The submissions of Mr Ogilvy were noted as showing that since April he had been working as a litigation executive with the London Borough of Ealing, earning £1300 per month, that he had recently been married and that his wife was earning £600 per month: a total income of £1900 per month. He is recorded as having asserted that he had not paid the rent due to a family bereavement. He requested an adjournment, upon giving an undertaking to make regular payments of £500 per month and, in addition, two sums of £300 on dates which he set out thereafter.
15. The order was recorded as the order that was made, namely an outright 28-day order for possession. The reasons given were as follows:

"1.3rd set of possession proceedings for non-payment of rent.

2.Combined monthly income of £1900 per month -yet no payment since May.

3.Finding that Defendant a persistent non-payer without any reasonable excuse."

16. Before His Honour Judge Welchman, the applicant, I appreciate, had only seen those notes for the first time; nonetheless he made no complaint as to their accuracy. He was asked whether or not he wished the matter to be dealt with by way of rehearing or, as under the new rules, by way of review. The judge had offered a rehearing on the basis that the arrears had by the time that the matter appeared before him reduced to £700. The applicant insisted on a review. The basis upon which he put his case was that the history of arrears did not in fact justify the conclusion to which the District Judge had come, that the District Judge had not in fact had a full history of the arrears provided for him going back to 1994, as had the Circuit Judge and, accordingly, that the conclusion to which the District Judge had come as to there having been persistent non-payment of rent was a decision which had been reached without proper consideration of the facts. It is important to note that he did not pursue his appeal on the basis that the notes to which we have referred were in any way deficient or inaccurate, nor that there was any defect in the proceedings before the District Judge arising out of the failure to produce the notes, which of itself would justify interference by the Circuit Judge. Further, there is nothing to suggest that he was at that stage complaining that the reasons given by the District Judge in the typed notes to which I have referred were other than an accurate account of his reasons for the decision that he made.
17. The Circuit Judge in his careful judgment, having related the facts and that he was being requested to deal with the matter as a review, came to the conclusion that there was nothing in any of the material before him which justified the conclusion that the decision of the District Judge was flawed or wrong. He concluded that the reasons given, albeit short and to the point, were fully justified by the evidence that was available and that, in those circumstances, there was no justification for interfering with the District Judge's decision. He went on, however, despite the fact that he had only been asked to deal with the matter by way of review, to consider the evidence before him which had been given by the applicant as to the reasons for non-payment of rent leading up to the date of the hearing before the District Judge. He concluded, on the basis that the arrears had been reduced to £700 by the time the matter came to him, as a matter of fairness to the applicant, that he should consider whether or not to exercise the powers of the court under section 85(2) of the Housing Act to suspend possession. He acknowledged that the applicant's home was at stake. However, he concluded that there was no evidence before him of any satisfactory nature to explain why it was that the applicant, with the legal knowledge that he had in particular, had failed to maintain his rental payments or make any payments towards the arrears during the period leading up to the decision of the District Judge. He considered that there was no substantial explanation before him which could justify granting the indulgence of a suspended order. As he put it:

"This man has played the system and sought to exploit it to the last."

18. Accepting that it was a draconian order, he came to the conclusion that nonetheless it was justified, and that there was no reason for interfering with it.
19. The applicant having been refused permission to appeal to this court on paper - it having been noted by the single Lord Justice, Longmore LJ, that this was a second appeal which raised no issue of principle, nor was there any other reason which could justify the grant of permission - came before this court (differently constituted) in December, at which time the matter, as we have indicated, was adjourned to us today. It is apparent that the reason for the adjournment was because the applicant had intimated to the court that his financial situation had changed by reason of the fact that there had been a bankruptcy petition to which he was subject. The court clearly considered, on the material before it, that this was a matter which should be further investigated in order to determine whether or not it would affect the conclusion in relation to this application.
20. We have in fact now been furnished with the relevant documents, which show that the petition was presented on 25th October 2001. The hearing date for the petition was 11th December 2001. The petition was presented by British Gas Trading Company. The basis for the petition was a statutory demand made as long ago as July 2001, based upon orders of the court made in September 1999, November 2000 and June 2001. The statutory demand was served by personal service on 25th July 2001. It follows that the information which is now before the court was information which was available to the applicant, if he had chosen to deploy it, at the time of the hearing before the District Judge insofar as the statutory demand was concerned and before His Honour Judge Welchman in December insofar as the existence of the bankruptcy petition was concerned. But it is apparent from the papers that we have that the applicant made no reference to those facts as providing him with any material assistance in relation to the claim of the respondent.
21. Before us the applicant seeks to pursue his claims on a number of bases. Firstly, he submits, as he says he submitted before His Honour Judge Welchman, that the District Judge essentially had no material upon which he could properly conclude that he, the applicant, was guilty of persistent non-payment of rent. The rental history was not fully deployed at the time. The position was that there was the assertion that this was the third claim for possession on the basis of non-payment of rent without a proper examination of the circumstances in which those rental arrears, particularly those in 1998 and 1999, came about. The fact is, however, that this applicant, for reasons which still seem to me to be either obscure or, alternatively, for reasons by way of deliberate choice on his part, had not put in a defence to the claim for possession. In the circumstances it is not surprising that the matter was dealt with as it was on a relatively summary basis on the information available to the District Judge.
22. The fact is that the Circuit Judge did have all the relevant material before him, and it seems to me that the District Judge would have been entitled to have concluded simply from the history in relation to the debt which was the subject matter of the claim before him that there was persistent non-payment of rent. The Circuit Judge undoubtedly came to that conclusion in the light of all the evidence, and I see no justification, in those circumstances, for concluding that the Circuit Judge was in any way wrong in the conclusion that he came to in dismissing the appeal on that basis.
23. The second point that the applicant makes is that the District Judge failed to provide any notes either as to the evidence or as to his findings which could properly have been put before the Circuit Judge. The only document which was put before the Circuit Judge, he submits, was an unsigned typed document which is a wholly inappropriate document for the purposes of an appeal. In those circumstances, there was a significant procedural irregularity which should in itself have justified the conclusion that the matter be remitted to the District Judge in order that a full and proper hearing, properly recorded, should take place.
24. The fact is that unhappily the recording which should have been made at the time was not made, and it is a matter for regret that there is therefore no contemporaneous record of what transpired before the District Judge, in the sense that there is no recording or transcript of a recording. Nor is there before us, nor was there before the Circuit Judge, any handwritten notes suggesting that it was a contemporaneous note. There was no note of the proceedings made by Miss White of which we are aware, and no note as been put before us by the applicant. It is to be remembered that it is essentially the appellant's responsibility to produce documentation for appeals and, in the circumstances of the present case, one can readily understand that the applicant sought the assistance of the court in order to ensure that the documentation was properly before it. His Honour Judge Behar on 31st October made the appropriate order. The District Judge acceded to that order, in the sense that he provided a typed document which on its face appears to be a typed copy of contemporaneous notes made at the relevant time. The position is that as far as that document is concerned there is nothing, as I have indicated, on its face to suggest that it is other than a proper transcript of a contemporaneous record of what occurred at the time. It is important to note that there is nothing in the evidence from the applicant to suggest to the contrary. It seems to me that this court is entitled, in those circumstances, to rely upon that document, as was the Circuit Judge, as being a proper record of what occurred at the relevant time. The position, in those circumstances, is that there was no procedural vice which could prevent the Circuit Judge from coming to the conclusions that he did, namely that he could rely on that as being the material document asserting the nature of the evidence before the District Judge and his conclusions. Those conclusions, shortly stated, were perfectly understandable and on the facts of this case not surprising.
25. The applicant then asserts that the court has failed to take into account properly the fact that the reason that he did not put forward a defence at the September hearing was that he had been assured by Miss White in the telephone conversation on 10th August 2001 to which I have referred that she would only be asking for a suspended possession order. As I have already indicated, it seems to me to be a somewhat surprising assertion by Miss White, if indeed it was made, and there is nothing to confirm it was made from Miss White. Be that as it may, whatever the position may have been on 10th August, it was plain by 31st August that Miss White's position was clear. She was effectively saying that the matter must proceed to court. The matter proceeded to court on the basis of the claim. The claim was for outright possession. It seems to me in those circumstances that the applicant has no justification for complaining about the way the District Judge dealt with it in the absence of a defence, which he was undoubtedly obliged to put before the court if in fact he was proposing to challenge the claim for outright possession, which in my view he knew full well was the nature of the claim being put forward by the respondent.
26. Finally, the applicant submits that District Judge Welchman was in no position to deal with the matter as he did by way of an order for outright possession on the basis of the application that he was making, which was that the matter should be dealt with by way of review. The only basis upon which, as he has said, the court could, or should, approach the matter was that the District Judge's decision was one which was not in fact available to him on the facts which were before him at the relevant time. It seems to me that this fails to give proper effect to the basis of His Honour Judge Welchman's decision, which was not only that he was not satisfied that there was any justification for interfering with the District Judge's decision on the facts before the District Judge but he himself considered the matter, although strictly he was not being asked to do so, on the basis of the facts before him. He accorded the applicant, therefore, the benefit, in effect, of a rehearing which was to the applicant's benefit, bearing in mind the reduction in the arrears since the date of the District Judge's decision; and it seems to me that in doing so he bent over backwards to ensure that there was no injustice suffered by the applicant by reason of perhaps an over-hasty or ill-advised decision to ask for a review rather than a rehearing.
27. His Honour Judge Welchman, in my judgment, came to a decision with which this court will not interfere on the basis of the facts which he found. Accordingly, there is no basis upon which this applicant could properly succeed in an appeal. As I have already indicated and for the avoidance of doubt, it is clear that the concerns of this court, as expressed when the matter was adjourned in December, are concerns which do not in fact avail the applicant. The material which he put before the court was material which could and should have been made available had he wished to deploy it, certainly in part before the District Judge, and in its totality before the Circuit Judge. It simply reaffirms the view expressed by the Circuit Judge that the applicant is a man who plays the system and seeks to exploit it by the production of material as and when he considers it may be most advantageous to him in delaying the inevitable order that in my judgment was made in this case.
28. I accordingly would dismiss this application.
29. MR JUSTICE WILSON: I agree.
Order: Application dismissed with costs subject to detailed assessment.