Reindorp & Ors (Trustees Of Richmond Church Estate) v Rushbury

An appellate court will rarely interfere with a trial judge’s findings of fact based substantially on witness credibility. The question is whether the findings were reasonably open on the evidence, not whether another judge might have reached a different conclusion.

Where a statutory tenant’s absence is sufficiently prolonged to transfer the burden of proof, the tenant must establish an intention to return, manifested by outward signs such as leaving belongings at the premises. If the trial judge had a sufficient factual basis for finding continued residence, the appellate court should not reweigh the evidence.

The trustees of Richmond Church Estate sought possession of a dwelling house let under the Rent Act 1977. The tenant had succeeded to the statutory tenancy after the original tenant’s death.

The landlords alleged that the tenant had ceased to occupy the property as his residence or had unlawfully sublet it. His Honour Judge Rose rejected both allegations, finding that the tenant remained within the statutory protection, although only marginally. Permission to appeal was refused below and by Buxton LJ. The trustees renewed their application before the Court of Appeal, challenging the factual findings and the treatment of the tenant’s credibility.

1. Permission refused. The application had no real prospect of success, and the order dismissing the landlords’ claim remained undisturbed.
2. The applicable legal approach was common ground. If a statutory tenant’s absence is sufficiently prolonged to infer that occupation has ceased, the burden passes to the tenant. The tenant must then prove, on the balance of probabilities, an intention to return and an outward manifestation of that intention, such as leaving furniture or personal effects at the premises. This principle was supported by Brown v Brach and Ambrose [1948] 2 KB 247.
3. The decisive issue was factual. The trial judge was entitled to find that the tenant’s occupation had not ceased, that he intended to return and that sufficient belongings and use of the property remained. Those findings were open on the evidence despite the judge’s adverse assessment of the tenant’s credibility.
4. An appellate court should not interfere merely because another judge might have reached a different conclusion. It is sufficient that the trial judge had a factual basis for the conclusions reached and was not required to address every evidential detail in an extempore judgment.
5. Lord Justice Mantell agreed with Mr Justice Wall. The formal order was that permission to appeal be refused.

• Court of Appeal (Civil Division): Renewed application for permission to appeal refused.
• Wandsworth County Court: His Honour Judge Rose dismissed the landlords’ claim for possession on 26 September 2001.
• Permission stage: The trial judge refused permission, and Buxton LJ endorsed that refusal on 8 November 2001.