London Borough of Southwark v Adatola Erekin

An appellate court must respect the broad discretion entrusted to a first-instance judge in a balancing exercise. An appeal succeeds only where the judge exceeded the generous ambit within which reasonable disagreement is possible. The appellate court must not substitute its own view merely because it might have reached a different result. The omission of a factor from an extemporary judgment does not establish that the factor was ignored, particularly where it was central to the evidence and submissions and the judge plainly considered the circumstances as a whole.

The claimant local authority appealed against His Honour Judge Cottran’s refusal on 20 January 2003 to make a possession order concerning accommodation occupied by Adatola Erekin and her five children. The defendant had obtained the council housing through a fraudulent application and had committed other frauds, for which she received an 18-month prison sentence. The first-instance judge accepted that the statutory jurisdiction to order possession was engaged but concluded, after considering the fraud, the children’s stable home and the pressure on council housing, that an order would be unreasonable.

The central issue was whether the judge had erred in the exercise of his discretion by failing to consider housing-stock pressure or by giving insufficient weight to the fraud.

1. Appeal dismissed. The first-instance judge had not exceeded the generous ambit within which reasonable disagreement was possible, applying the guidance in [2000] WLR 1311.
2. The appellate court’s function was not to substitute its own assessment for that of the judge who had heard the evidence, cross-examination and submissions. It was irrelevant that the appellate judge might have reached a different result if deciding the matter at first instance. The relevant question was whether the original decision fell outside the permissible range of reasonable outcomes.
3. The absence of an express reference to the pressure on the claimant’s housing stock did not show that the factor had been ignored. The issue had played a substantial part in the council’s case, was supported by evidence and had been addressed in submissions. In an extemporary judgment, matters may be omitted from express mention. In the circumstances, it was inconceivable that the experienced judge had failed to take the point into account.
4. The fraud was serious and the case was borderline, but reasonable disagreement about the outcome of the balancing exercise did not justify appellate intervention. The judge had considered the relevant circumstances, including the fraud and the children’s stable home life, and was entitled to refuse possession.

1. High Court (Chancery Division): permission to appeal was granted after His Honour Judge Cottran refused permission. The appeal against the refusal of a possession order was dismissed.