London Borough of Lambeth v Vandra & Ors

Direct evidence of subletting is not required. A judge may draw a reasonable inference from established primary facts, assessed as a matter of probability. An alternative explanation does not mean that there is no evidence or insufficient evidence. The landlord’s burden of proof remains unchanged, even where the facts call for an explanation from the tenant. Where the tenant’s explanation is rejected as incredible, the court may infer subletting of the whole premises from the circumstances taken together. An appellate court must not set aside such a finding as one of no evidence where sufficient circumstantial evidence supports it.

The London Borough of Lambeth, landlord of a flat held under a secure tenancy by Miss Vandra, sought possession on the ground that she had unlawfully sublet the whole premises. After visits by a housing officer, District Judge Wakeham found that five other people occupied the flat, paid rent to persons other than Miss Vandra, and that the premises had been sublet. A possession order was made on 22 September 2004.

On 11 March 2005, His Honour Judge Cotran allowed Miss Vandra’s appeal, holding that there was no evidence that she had made the letting and that the burden of proof had been reversed. The central issue before the Court of Appeal was whether the primary facts and the rejection of Miss Vandra’s explanation were sufficient to support an inference of subletting of the whole premises.

The Court of Appeal unanimously allowed the appeal and restored the possession order.

1. The absence of direct evidence that Miss Vandra personally sublet the premises was not fatal. Judges are entitled to draw inferences, as matters of probability, from established primary facts.
2. The relevant primary facts included Miss Vandra’s absence from the flat, the absence of signs of occupation by her and her children, the presence of five other occupants, Yale locks on all doors and an additional padlock, the use of rooms for sleeping rather than communal living, and rent payments to Kim or Jim, who had been placed in the flat by Miss Vandra.
3. Those facts entitled Lambeth to call for an explanation. The rejection of Miss Vandra’s explanations did not create a complete evidential vacuum. Although subletting of only part of the premises was a possible inference, the district judge was entitled to infer, from all the facts together, that the whole premises had been sublet.
4. The county court judge was not entitled to reverse the district judge’s factual finding on the basis that there was no evidence. The evidence was circumstantial, but it was sufficient to support a reasonable inference. The landlord’s burden of proof had not been improperly transferred.

The order for possession was restored. Costs were awarded, with detailed assessment if not agreed, and possession was ordered within six weeks.

• Court of Appeal (Civil Division): On 19 December 2005, unanimously allowed Lambeth’s appeal, restored the order for possession and made costs and possession orders. [2005] EWCA Civ 1801
• Lambeth County Court (appeal): On 11 March 2005, His Honour Judge Cotran allowed Miss Vandra’s appeal and set aside the possession order.
• Lambeth County Court (District Judge Wakeham): On 22 September 2004, made a possession order after finding unlawful subletting of the whole premises and termination of the secure tenancy.