Lewis & Anor v Kush Housing Association

Permission to appeal should be refused where proposed grounds disclose no arguable basis for interfering with factual findings. Fresh evidence must satisfy the principles in Ladd v Marshall [1954] 1 WLR 1489, including reasonable diligence and likely material impact. On a second appeal, the Civil Procedure Rules 1998, rule 52.13(2), require a general point of principle or practice, or another compelling reason. The applications failed those requirements. The possession challenge also could not displace arrears above the ground 8 threshold in Schedule 2 to the Housing Act 1988.

Mr Erskine Lewis, formerly a joint tenant with Mrs Gillian Lewis, pursued a disrepair claim against Kush Housing Association and defended possession proceedings for rent arrears. The possession claim was brought under ground 8 in Schedule 2 to the Housing Act 1988.

District Judge Manners made a possession order on 17 March 2004. His Honour Judge Latham later dismissed Mr Lewis’s appeal against that order and dismissed the disrepair claim by orders dated 26 November 2004. Mr Lewis applied for permission to pursue two appeals in the Court of Appeal, together with applications for fresh evidence, disclosure and a stay. The central issues were whether the factual and procedural challenges had a real prospect of success, whether fresh evidence should be admitted, and whether the possession matter satisfied the second-appeal threshold.

Lord Justice Jonathan Parker dismissed both applications for permission to appeal. The ancillary applications for disclosure and other orders were also dismissed, and no question of a stay arose.

1. Fresh evidence. The application to adduce further evidence concerning the disrepair claim was governed by the principles in Ladd v Marshall [1954] 1 WLR 1489. Mr Lewis had not shown why the evidence could not, with reasonable diligence, have been obtained for the trial. Nor was it likely to have a significant effect on the result. The central issue was the judge’s finding that Mr Lewis had obstructed reasonable attempts by the landlord to inspect and remedy the alleged defects.
2. Disrepair claim. The Court of Appeal found no arguable ground for interfering with the trial judge’s findings of fact. The judge had preferred the evidence of the landlord’s housing officer and had found that Mr Lewis had failed to give a reasonable opportunity for inspection and repair. The expert evidence identified some defects, but it did not overcome those findings. The remaining complaints, including the asserted procedural irregularities and Convention grounds, had no substance.
3. Possession claim. Application 2623 concerned a second appeal, so rule 52.13(2) of the Civil Procedure Rules 1998 applied. The proposed appeal raised no general point of principle or practice and there was no other compelling reason for the Court of Appeal to hear it. In any event, it had no real prospect of success. The recorded arrears exceeded the eight-week minimum for ground 8, the credited Housing Benefit did not reduce them below that level, and any proposed set-off depended on the unsuccessful disrepair claim.

1. Court of Appeal (Civil Division) — In [2005] EWCA Civ 445, Lord Justice Jonathan Parker dismissed both applications for permission to appeal, together with the ancillary applications.
2. Shoreditch County Court — His Honour Judge Latham dismissed the disrepair claim and Mr Lewis’s appeal against the possession order on 26 November 2004.
3. Shoreditch County Court — District Judge Manners made the possession order on 17 March 2004.