London Borough Of Hammersmith & Fulham v Jastrzebski & Anor

Permission for a second appeal requires an important point of principle or practice, or another compelling reason, under rule 52.13 of the Civil Procedure Rules 1998 and section 55(1) of the Access to Justice Act 1999. The mere fact that lower courts reached different conclusions is insufficient. In deciding whether payments created an acknowledged tenancy, the court asks whether they were accepted as rent or in another character. The inference depends on all the circumstances. Delay while a local authority investigates a claimed succession to a secure tenancy may explain why delay does not imply acceptance or acquiescence, without excusing any breach of duty.

The council sought possession of a flat occupied by Mr and Mrs Jastrzebski after the death of the secure tenant, Mr Kryszyn. The County Court dismissed the possession claim and declared that the council had accepted the occupiers as tenants through its acceptance of payments. Sir Oliver Popplewell, sitting in the High Court, allowed the council’s appeal and ordered possession. The council renewed its application for permission to bring a second appeal. The central issue was whether the proposed appeal raised an important point of principle or practice, or disclosed another compelling reason for appellate intervention, including an alleged difference between the treatment of private and local-authority landlords.

Application refused. Lord Justice Chadwick, sitting alone, held that rule 52.13 of the Civil Procedure Rules 1998, giving effect to section 55(1) of the Access to Justice Act 1999, required permission for a second appeal only where the appeal raised an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to entertain it.

1. The suggested point of principle was based on an observation that delay by an overworked council might affect the inference arising from receipt of payments. That did not establish different legal standards for public and private landlords. The same question applied in every case: whether payments were made and accepted as rent, so as to acknowledge a tenancy, or in another character.

2. In drawing that inference, the court could consider all the circumstances. Where occupiers claimed succession to a secure tenancy under section 87 of the Housing Act 1985, the time reasonably taken by a council to investigate the claim could explain delay and prevent an inference of acceptance or acquiescence. Recognition of housing-department pressures was not an excuse for failing to perform statutory duties; it was a realistic factor in assessing the inference.

3. The fact that one lower-court judge had taken one view and another judge had taken a different view did not itself constitute a compelling reason. A very strong prospect of success could amount to such a reason, but this proposed appeal had no real prospect of success and, in any event, lacked the required high degree of likelihood of success. Permission was therefore refused.

1. Court of Appeal (Civil Division): On 21 March 2001, the renewed application for permission to appeal from the High Court was refused: [2001] EWCA Civ 431.

2. High Court, Chancery Division: On 20 October 2000, Sir Oliver Popplewell allowed the appeal from the County Court and ordered possession.

3. West London County Court: On 14 April 2000, His Honour Judge Cotran dismissed the council’s possession claim and declared that the council had accepted the occupiers as tenants.