City Of Westminster v Salama

On a second appeal, the Court of Appeal may intervene only where the proposed appeal raises an important point of practice or principle, or there is another compelling reason to hear it. A possession order which was intended to allow a short period before being drawn up does not necessarily remain vulnerable where it was sealed after that period had elapsed. A landlord’s subsequent issue of a rent-payment card and acceptance of payments may, depending on the circumstances, create a new tenancy, even after a possession order. Where that possibility is raised on incomplete evidence, the court may adjourn the permission application to obtain the landlord’s position.

The respondent local authority obtained an order for possession of 97 Keats House. Master Eyre had made an earlier order, and Eady J allowed the authority’s appeal on 4 July 2001, ordering possession forthwith. Although Eady J intended that the appellant should have 28 days to leave, the drawn order did not record that intention and was not sealed until 9 August.

The appellant challenged the order and also relied on a rent-payment card issued by the authority after judgment, together with subsequent acceptance of payments. He argued that these matters created a tenancy of the property and amounted to consent to his continued occupation. The central issue was whether that evidence gave rise to a sufficiently arguable point to justify permission for a second appeal.

1. Application adjourned. The court did not determine whether a new tenancy had been created. Westminster City Council was directed to appear and explain its position, including whether it resisted permission. There was no order for costs.
2. The application was formally a second appeal. Permission could therefore be granted only if the proposed appeal raised an important point of practice or principle, or if there was some other compelling reason for the Court of Appeal to hear it.
3. The complaint that the order failed on its face to record the intended 28-day period did not presently justify permission. The order was not sealed until more than 28 days after it was made, and it was clear that the judge intended the appellant ultimately to leave premises to which he had no legal right.
4. The appellant’s separate case concerning the rent-payment card required further investigation. The card appeared to have been issued by the authority after the possession order and referred to rent payments for 97 Keats House. On the material then available, it was conceivable that the authority’s conduct had created a tenancy, although the court did not decide that it had done so.
5. The possibility remained open notwithstanding Vaughan Armatrading v Sarsah [1995] 27 HLR 631. The point was treated as sufficiently urgent to warrant an adjournment and further participation by the authority.

• Court of Appeal (Civil Division): the application for permission to bring a second appeal from Eady J’s order of 4 July 2001 was adjourned for further consideration.
• Queen’s Bench Division: Eady J allowed Westminster City Council’s appeal from Master Eyre’s order of 26 April 2001 and ordered possession of 97 Keats House forthwith.