Downing v Lissimore

In deciding whether to make an occupation order under the 1996 Act, the court must address each of the four criteria in section 33(6) and then exercise an overall discretion. An appellate court should not interfere where the first-instance judge considered those criteria and reached a conclusion that cannot be said to be plainly wrong. Pending resolution of a cohabitant’s equitable-interest and capital claim, it is permissible to leave her in the shared home. The court may weigh the inferior standard of proposed alternative accommodation and its effect on her wellbeing. Later developments should ordinarily be raised by a fresh application in the County Court.

The parties had cohabited for about eight years in Astbury Hall. The respondent commenced proceedings claiming an equitable interest in the property. The applicant responded with an application under Part 4 of the 1996 Act seeking to remove her, but the Birmingham County Court, sitting through Mr Recorder McFarlane QC, refused the application on 3 May 2002.

The applicant sought permission to appeal. By the time of the oral hearing, the equitable-interest claim had been adjourned to February 2003 and a strike-out application was due to be heard. The central issue was whether the Recorder’s exercise of the statutory discretion was plainly wrong.

1. Disposition. Lord Justice Thorpe confirmed his provisional refusal of permission to appeal. Lord Justice Scott Baker agreed. The application was therefore dismissed unanimously.
2. Statutory discretion. The relevant provision was subsection (6) of section 33 of the 1996 Act. It required the court to have regard to four specific criteria when deciding whether to make an occupation order. The Recorder had considered each criterion, referring to subsections (a), (b), (c) and (d) at paragraphs 12, 16, 17 and 21 of his judgment. Although three considerations favoured the respondent and one narrowly favoured the applicant, the overall balance justified refusing the order.
3. Appellate restraint. The Court of Appeal would not interfere with that discretionary conclusion because it could not be said to be plainly wrong. The existence of a pending determination of the respondent’s equitable interest, and therefore any capital claim against the applicant, made it sustainable for her to remain in the home until that issue was resolved.
4. Alternative accommodation. The Recorder was entitled to consider that the proposed accommodation was of a considerably lower standard and that moving before final resolution would affect the respondent’s wellbeing.
5. Subsequent developments. Later events were a better basis for a fresh application in the County Court than for advancing the permission application. If the pending strike-out application succeeded, the circumstances would materially change and the applicant would obtain complete occupation.

1. Court of Appeal (Civil Division) — On 6 November 2002, permission to appeal was refused and the dismissal of the application was confirmed: [2002] EWCA Civ 1698.
2. Birmingham County Court — Mr Recorder McFarlane QC refused the applicant’s Part 4 application under the 1996 Act on 3 May 2002.