London Borough of Ealing v Richardson

An appeal is ordinarily limited to a review. A rehearing is exceptional and requires an unusual feature in the individual case making it necessary in the interests of justice. It is not a shortcut to cure a party’s failure to present evidence. When reviewing a discretionary possession decision under section 85(2) of the Housing Act 1985, the court must consider the individual circumstances, including the arrears history and the realistic prospect of maintaining payments and reducing arrears. A bright-line approach based solely on the amount or duration of arrears is an error of principle.

The defendant was a secure tenant whose rent arrears had led to repeated applications to suspend a possession warrant. On 10 February 2005, District Judge Allen suspended the warrant subject to an immediate payment and continuing payments towards rent and arrears. The local authority appealed. HHJ Oppenheimer ordered that the appeal proceed as a rehearing, admitted the fuller history, allowed the appeal and directed that the warrant issue.

The tenant brought a further appeal to the Court of Appeal. The issues were whether the rehearing had been properly ordered and, if not, whether the circuit judge’s alternative assessment of the statutory discretion was correct.

Appeal allowed. The order of HHJ Oppenheimer was set aside and the District Judge’s order suspending the possession warrant was restored. The respondent was ordered to pay the costs of the appeal.

1. Rehearing. Under CPR 52.11(1), an appeal is ordinarily a review. CPR 52.11(1)(b) permits a rehearing only where, in the circumstances of the individual appeal, the interests of justice require it. The exception requires an unusual factor and must not be used as a procedural shortcut or because a rehearing appears convenient or sensible.
2. Failure to present evidence. A party’s failure to place relevant papers before the first court will not ordinarily justify a rehearing. The local authority had not protested, sought an adjournment, or supplied its copies of the relevant orders. There was therefore no procedural injustice requiring a rehearing, and fresh evidence was subject to the usual requirements for permission.
3. Review of discretion. On a review of a discretionary order, the appellate court asks whether the discretion was exercised wrongly in principle or outside the generous ambit within which disagreement is possible, applying the approach stated in re G v G [1985] AC 647 at 652.
4. Possession discretion. The discretion under section 85(2) of the Housing Act 1985 had to be exercised by reference to the individual circumstances. The arrears history was relevant, but the court also had to consider evidence concerning the tenant’s future ability to maintain payments and reduce the arrears. Treating substantial arrears as creating an effective bright-line rule was an error of principle. The circuit judge had failed to give proper weight to evidence of regular payments, proposed direct debits and debt advice.
5. Advocacy and clarification. Lady Justice Arden added that the advocate had the primary duty to make the position clear, but where evidential difficulties were apparent the judge should clarify whether an adjournment or a short opportunity to take instructions was required.

1. Court of Appeal (Civil Division) — In [2005] EWCA Civ 1798, the appeal was allowed. The rehearing order and possession order made by HHJ Oppenheimer were set aside, the District Judge’s suspension order was restored, and the respondent was ordered to pay the appeal costs.
2. Brentford County Court — HHJ Oppenheimer, on 17 June 2005, ordered that the local authority’s appeal proceed by way of rehearing, allowed the appeal and ordered that the possession warrant issue.
3. Brentford County Court — District Judge Allen, on 10 February 2005, suspended the possession warrant subject to an immediate payment of £588 and payment of current rent plus £10 per week towards arrears.