London Borough of Brent v Smart, Court of Appeal - Civil Division, March 02, 2005, [2005] EWCA Civ 434

Resolution Date:March 02, 2005
Issuing Organization:Civil Division
Actores:London Borough of Brent v Smart



Neutral Citation Number: [2005] EWCA Civ 434





Royal Courts of Justice


London, WC2

Wednesday, 2nd March 2005

B E F O R E:




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MISS M MACRO (instructed by Ross & Craig, London) appeared on behalf of the Appellant

MISS A EILLEDGE (instructed by KSB Law, London) appeared on behalf of the Respondents

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J U D G M E N T1. LORD JUSTIC RIX: This is an appeal about new evidence. It is brought by Mr Mark Smart, who, since 1983, had a secure tenancy at 43 Lansbury Close, St Raphael's Estate, NW10 ("the flat") from the Mayor and Burgesses of the London Borough of Brent ("Brent") who are the respondents to this appeal.

2. In August 2000, in circumstances which I shall relate in greater detail hereafter, it came to the attention of Brent that Mr Smart may have sub-let his flat to a Miss Marjorie Thomas, and in due course proceedings for possession were brought, which were heard at trial by His Honour Judge Levy in March 2004. The judge found in favour of Brent's case and against Mr Smart's case and ordered the recovery of possession from Mr Smart.

3. The trial itself took place in unfortunate circumstances for Mr Smart, which I readily acknowledge. Very shortly before the trial was due to take place his legal funding was withdrawn. It appears that this was because he had failed to bring to the attention of the legal aid authorities the fact that he was at that time a director of a company, albeit, as it turned out on investigation, a non-trading company, so his directorship brought him no income whatsoever. It was Brent itself which brought to the attention of the legal aid authorities the fact of Mr Smart's directorship, and although when in due course, the matter having been investigated, Mr Smart's funding was reinstated, this came too late to assist him at trial. He therefore sought an adjournment of the trial, but the judge was unwilling to do more than allow him half a day's adjournment until 2 o'clock on the first day of trial and the trial took place over the latter part of that day and the next three days. This was undoubtedly an unfortunate matter for Mr Smart. The judge assisted him as best he could. Nevertheless, one can understand Mr Smart's concern at this turn of events. It provides part of the background to this appeal.

4. I have said at the beginning of this judgment that the appeal is about new evidence. It is, in effect, not suggested that there is any other ground of appeal. At a late stage of her submissions today, Miss Morwenna Macro, who appears on behalf of Mr Smart, has sought to reinstate a deleted ground of appeal to the effect that the judge had erred in law in not considering whether it was reasonable to make the possession order. On consideration, permission to amend her grounds of appeal was given by the court in the course of argument today. However, on further consideration of this restored ground, it has become clear that the judge essentially had to choose, as a result of the evidence before him, between two directly conflicting accounts of what had happened in relation to Miss Thompson being let into possession of the flat. Her case was that she took possession of the whole flat under a sublease from Mr Smart. Mr Smart's case was that he did not sub-let the flat to her at all, either in whole or in part, but that he had, out of pity, taken Miss Thompson and her young child into the flat, had made available to her one out of the two rooms in the flat, but then had found the situation uncomfortable after a failed relationship between the two and had demanded that she leave, which she refused to do. There was direct and unbridgeable conflict between the two cases before the judge. The judge had to choose between the two cases. He chose in favour of Miss Thompson, and in doing so he found that there had been a sub-letting of the whole of the flat. It is common ground, I think, that on that basis the secure tenancy on which Mr Smart relies was destroyed under section 93(2) of the Housing Act 1985. I will say nothing more about that ground of appeal and turn to the facts of this case and to the new evidence which Mr Smart seeks to bring to bear on it in his attempt to win a new trial.

5. I have already mentioned the two entirely separate accounts given by the two main witnesses at the trial. The judge summed up Miss Thomas' evidence, or his reception of it, at paragraph 30 of his judgment. He did it in this way:

"Ms Thomas has told a consistent story which is supported by the documents, to some of which I have referred. She struck me, in the witness box, as being forthright. She was willing to return to court to face further cross-examination; and her evidence, together with photographs which she produced showing property in the flat, were consistent with her having been admitted to a tenant ['tenancy' perhaps is what he intended to say]. Perhaps most impressive of all was the fact that she was in employment throughout and she produced, in the course of the hearing when she came for further cross-examination, documents which showed her payment slips from which it was shown that she had the wherewithal to make the payments shown on the receipts which I have mentioned. Her account of how she came to have the flat had the ring of truth about it."

That is how the judge sums up her evidence.

6. As it is, the judge nowhere set out with great clarity what her evidence at trial was. He approached the matter rather by referring, at some considerable length in the case of both her account and Mr Smart's account, to lengthy statements on the one hand and a lengthy interview given by Mr Smart on the other hand which had been given to or taken by an officer of Brent by the name of Mr Knight, who was investigating as part of his duties the complaint which Miss Thomas had brought to him about her treatment at the hands of Mr Smart, of how he was trying to expel her from his flat and had already changed the locks a few days earlier.

7. In a situation where the witness statements of each of these two main witnesses was essentially consistent with those contemporaneous statements and interviews, one can well understand why the judge refers back to those contemporaneous documents. At any rate, as the structure of his judgment...

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