London Borough Of Southwark v Ogilvy

In housing possession proceedings, an appellate court may rely on a typed record supplied by the trial judge where no recording exists, the document appears to reproduce contemporaneous notes, and its accuracy is not challenged. A tenant who intends to resist an outright possession claim must put forward a defence. Persistent non-payment may be inferred from the rent history. A later reduction in arrears does not require suspension of possession. Under section 85(2) of the Housing Act 1985, suspension is discretionary and may be refused where the tenant provides no satisfactory explanation for failing to pay current rent or reduce arrears.

The local authority sought possession of a secure tenancy under Ground 1 of Schedule 2 to the Housing Act 1985, relying on rent arrears and breach of tenancy obligations. Notice had been served when arrears exceeded £500, and the arrears exceeded £2,300 by the hearing before District Judge Worthington, who made an outright possession order and ordered payment of the arrears.

His Honour Judge Welchman dismissed the tenant’s appeal by way of review. Although the arrears had fallen to about £700, he declined to suspend possession under section 85(2). The tenant sought permission to appeal, alleging persistent non-payment had not been established, the District Judge’s notes were inadequate, an assurance had been given that only a suspended order would be sought, and the Circuit Judge had dealt with the matter improperly on review.

Application dismissed with costs, subject to detailed assessment. Lord Justice Latham gave the judgment and Mr Justice Wilson agreed.

1. The absence of a recording of the District Judge’s hearing was regrettable, but it did not create a procedural vice. The typed document supplied by the District Judge appeared to be a typed copy of contemporaneous notes. Nothing in the tenant’s evidence challenged its accuracy. The Circuit Judge was therefore entitled to rely on it as a proper record of the evidence, submissions, order and reasons.
2. The tenant had not filed a defence to the claim for outright possession. If he intended to challenge that claim, he was required to put his case before the court. In those circumstances, the District Judge was entitled to deal with the matter on the available evidence and representations. The fact that the complete history of earlier arrears had not been deployed did not invalidate the finding of persistent non-payment.
3. The Circuit Judge had all relevant material before him and was entitled to conclude that the District Judge’s decision was not flawed. The rent history itself supported the finding of persistent non-payment. The alleged assurance that only a suspended order would be sought did not justify the tenant’s failure to defend the claim, particularly since the respondent’s position was clear before the hearing.
4. Although the tenant had sought a review, the Circuit Judge considered both whether the District Judge’s decision was flawed on the material then available and the later evidence before him. In substance, he gave the tenant the benefit of a rehearing, including consideration of the reduced arrears. His refusal to suspend possession under section 85(2) was justified. The tenant’s home was at stake, but there was no satisfactory explanation for the failure to pay current rent or reduce arrears, despite the tenant’s income and the repeated proceedings.
5. Information concerning the tenant’s bankruptcy petition did not assist. It had been available, at least in material part, before the lower courts and had not been deployed. There was consequently no proper basis for interfering with the Circuit Judge’s decision.

• Court of Appeal (Civil Division) — On 23 January 2002, the application for permission to appeal was dismissed with costs: [2002] EWCA Civ 79.
• Lambeth County Court — His Honour Judge Welchman dismissed the tenant’s appeal by way of review on 3 December 2001 and declined to interfere with the outright possession order.
• Lambeth County Court — District Judge Worthington made an outright 28-day possession order on 7 September 2001 and ordered payment of approximately £2,366 in rent arrears.