Bowen-Griffith v London Borough Of Barnet

Permission to appeal requires a real prospect of success. The Court of Appeal will rarely interfere with factual findings reached after a trial involving assessment of witnesses, particularly where the challenge concerns credibility and the evidence was heard over several days. A possession order based on substantial rent arrears was not realistically challengeable where the underlying damages claims had been rejected and the proposed repayment rate would take decades to clear the arrears. A short stay may nevertheless be granted to allow a tenant to apply to the county court for suspension of the order on realistic repayment terms, without the appellate court expressing a view on that application.

The tenant’s flat was damaged by fire and rendered uninhabitable. Her possessions were removed and stored by contractors acting for the local authority. She later claimed that possessions had been lost or damaged and also alleged breaches of repairing and rehousing obligations. She withheld rent, arrears accrued, and the local authority obtained a possession order.

After a five-day trial, the county court awarded limited damages, set them off against the rent and storage charges, dismissed the claim against the contractors, and ordered possession because the remaining arrears were substantial and the proposed repayment rate was unrealistic. The tenant applied to the Court of Appeal for permission to appeal, challenging the judge’s assessment of the evidence, and sought a stay to enable her to repay the arrears. The central issue was whether the proposed appeal had a real prospect of success.

Lord Justice Chadwick gave the judgment of the court.

1. Permission to appeal. The relevant question was whether the applicant had shown a real prospect of success on an appeal against the county court’s order. The possession order followed from the dismissal of the substantial damages claim and the existence of significant rent arrears. In the face of an offer to pay only £2.65 per week, which would have taken about 30 years to discharge the arrears, there was no real basis for challenging the possession order on that ground.
2. Findings of fact and credibility. The trial judge had treated credibility as central to the case. He found the applicant’s evidence thoroughly unreliable because of unsupported allegations of dishonesty, forgery and theft, while accepting the evidence of the council officers, contractors and other witnesses. The proposed grounds concerned factual matters, including whether property had been disposed of and whether roof repairs had been completed. Those matters depended on the trial judge’s assessment of witnesses after a five-day hearing. There was no real prospect that the Court of Appeal would interfere with those findings.
3. Stay. The applicant had not applied to the county court for suspension of the possession order on realistic terms. She was given 28 days to make such an application if she could genuinely pay off the arrears. The Court of Appeal gave no indication whether that application would succeed.

The application for permission to appeal and the application for a stay pending appeal were dismissed. A stay of the possession order, or of the warrant issued under it, was granted for 28 days to enable an application to be made to the county court.

• Court of Appeal (Civil Division): On 24 April 2002, in [2002] EWCA Civ 626, Lord Justice Chadwick dismissed the application for permission to appeal and the application for a stay pending appeal, but granted a 28-day stay to enable an application to be made to the county court.
• Barnet County Court: His Honour Judge John Adams made an order on 18 September 2001 requiring possession by 31 October 2001 and payment of £5,572.50 for unpaid rent and use and occupation.