Case No: B5/2012/0317
Neutral Citation Number: [2012] EWCA Civ 690
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE HARRIS QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 14 May 2012

Before:

LORD JUSTICE LEWISON

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Between:

	CHOWDHURY
AND ANOTHER
	
Appellant	
	- and -		
	
WOODMAN	

Respondents	

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(DAR Transcript of 
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The Appellant son appeared in person assisted by Ms Helen Sarkany of the Personal Support Unit.

The Respondent did not appear and was not represented.

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Judgment

Lord Justice Lewison:   

1.	On 1 February 2009 Dr Woodman let to Mr and Mrs Chowdhury a house at 22 Eden Drive in Oxford.  The term of the tenancy was one year, ending on 31 January 2010. The agreed rent was £1,400 a month.  The tenancy was an assured short hold tenancy.

2.	The tenancy was not renewed and on 18 July 2011 Dr Woodman served notice requiring possession under section 21 of the Housing Act 1988.  Under section 21 of the Act, the court must make an order for possession if it is satisfied of two things.  The first is that the assured short hold tenancy has come to an end.  The second is that notice under section 21 has been given.  The court has no discretion in the matter.

3.	On 16 December 2011 District Judge Byass sitting in the Oxford County Court made an order for possession requiring possession to be given on or about 22 December 2011.  That followed a previous order made on the papers by District Judge Jenkins on 1 November and which I think was subsequently set aside.

4.	An appeal against District Judge Jenkins' order was heard and dismissed by Mr Recorder Hamlin on 13 January 2012.  Why there was an appeal against that order when it had been set aside is not entirely clear.  However that may be, it seems that the order of District Judge Byass, which was the operative possession order, was appealed to the circuit judge.  It was that appeal that HHJ Harris QC dismissed on 27 January 2012.

5.	Mr and Mrs Chowdhury ask for permission to appeal against that dismissal.  Their application has been presented this morning by their son.

6.	Since any appeal will be a second appeal, not only must the appeal have a real prospect of success, it must also raise some important point of principle or practice; or there must be some other compelling reason for the Court of Appeal to hear the appeal.

7.	Ground 1 of the proposed appeal alleges that Mr and Mrs Chowdhury did not receive details about how their deposit was protected within the statutory period of 14 days.  Judge Harris dealt with that in paragraph 12 of his judgment.  He said:

"The position this morning is that I was first told by Mr Chowdhury that the claimant had provided no details of the deposit protection arrangements, a deposit of £1,400 having been taken.  But it seems, from documents which have been put in by the claimant, that in fact there were appropriate notifications given, although at one stage I think there was a mistake in the number of the house."

8.	That as it seems to me is a question of fact.  The question is whether the requisite details were given; and Judge Harris's clear finding is that there were appropriate notifications given.  This ground of appeal does not in my judgment raise any issue of principle and does not disclose a ground for a second appeal.

9.	Grounds 2 and 3 allege in effect that Dr Woodman was not entitled to grant the tenancy at all, either because she was bankrupt or because she had failed to obtain the consent of her mortgagee or both.  There are two fundamental problems with those grounds of appeal.  The first is that, assuming those grounds of appeal to be correct, it would result in Mr and Mrs Chowdhury having no right at all to be in 22 Eden Drive.  If the landlady was not entitled to grant them a tenancy then they can have no right to be there.  But there is a further difficulty; and that is that for centuries it has been a fundamental principle of the law of landlord and tenant that a tenant who has in fact been given possession (as Mr and Mrs Chowdhury have) is estopped or prevented from denying the landlord's title.  These grounds of appeal therefore do not have any prospect of success.

10.	Ground 4 alleges that the gas boiler does not work.  It may be that that complaint would give rise to a counterclaim; and Mr Chowdhury has told me that his parents have indeed applied to the Oxford County Court for counterclaim, but it cannot amount to a defence to a claim for possession under section 21.  In cases where possession is claimed on the ground that there are arrears of rent, it may be that a counterclaim can be set off against the rent arrears so as to reduce or eliminate the tenant's liability to pay and thus undermine that ground of possession.  In the present case there are in fact arrears of rent running to tens of thousands of pounds, but those rent arrears are not the grounds relied upon in order to sustain the possession order. Possession is claimed under section 21 and, as I have said, if the court is satisfied that the tenancy has expired and that the right notice has been given, the court must make the order for possession.  Accordingly Ground 4 does not provide a ground which has any real prospect of success.

11.	Ground 5 alleges a breach of a covenant for quiet enjoyment, but the breach relied upon appears to be that Dr Woodman and her husband used the address for their post for the last two or three years and that there have been some verbal threats and harassment.  But, like Ground 4, although this complaint might give rise to some form of counterclaim, it cannot provide a defence to the right to possession under the mandatory provisions of section 21.

12.	The final ground of appeal complains that Mr and Mrs Chowdhury did not have a fair hearing because the judge did not have a bundle of documents on appeal from the District Judge.  The consequence was that Mr and Mrs Chowdhury or perhaps their son, who I think was representing them on that occasion too, had to give his own copy of the appeal bundle to the judge and therefore was unable to refer to important legal points or dates or facts in the grounds of appeal.  I am not persuaded that that amounts to an important point of principle or practice.  Even if there were an irregularity, and I very much doubt there was, there has been ample time for Mr and Mrs Chowdhury to put forward the points upon which they now wish to rely.  I have considered them.  I have decided that none of those points have any real prospect of success.

13.	The upshot is that Mr and Mrs Chowdhury have not, it appears, paid the rent for a very long time.  They have successfully delayed in giving possession for the best part of six months and that must now come to an end.  I therefore refuse permission to appeal.

14.	Mr Chowdhury has asked for a stay of execution in the event that I refuse permission.  I do have a statutory power to grant an extension of up to six weeks, but I have no power to grant an extension of time beyond that.  In view of the serious medical condition of both Mrs Chowdhury and her daughter, I am prepared to exercise that power and make an order for possession in six weeks’ time.  That is on 25 June 2012.

Order: Application refused