London Borough of Southwark v Kofi-Adu

A court determining whether possession of a secure tenancy is reasonable must proceed on properly established facts. It cannot assume an unquantified entitlement to housing benefit and thereby reduce rent arrears without a rational evidential basis.

In an adversarial trial, judicial intervention must assist the fair determination of the parties’ issues. Prolonged and contentious questioning by the judge may impair an objective assessment of credibility and evidence. Where it does so, and the judgment gives no adequate reasons for resolving central evidential conflicts, the trial is flawed and a retrial may be required.

The local authority sought possession of its secure tenant’s flat for rent arrears and alleged nuisance and annoyance under Grounds 1 and 2 of Part 1 of Schedule 2 to the Housing Act 1985. The tenant denied the nuisance allegations, disputed the reasonableness of possession, and made a repair counterclaim.

HHJ Cotran in the Shoreditch County Court dismissed the possession claim. He found that housing benefit would reduce the arrears substantially and rejected the principal neighbour’s evidence. The authority appealed, contending that those conclusions were irrational and that the judge’s conduct of the hearing had prevented a fair evaluation of the evidence.

1. Appeal allowed. The court ordered a retrial before a different judge. It could not itself make a possession order because it would have had to assess, on the facts at the date of the appeal, whether possession was reasonable.
2. Under section 84(2) of the Housing Act 1985, reasonableness had to be assessed on the correct factual basis. The judge accepted that the arrears at trial were £2,981.45, but then assumed that housing benefit would reduce them to about £1,000. There was no rational basis for that finding. Information necessary to assess entitlement had never been supplied, so there was no assurance that any further benefit was payable. His approach to the arrears issue, and consequently his conclusion on reasonableness, could not stand.
3. On the nuisance claim, the judge was not bound to prefer the neighbour’s evidence. However, he had to scrutinise the conflicting evidence and explain why he rejected the neighbour’s contemporaneous diary evidence while accepting evidence from the tenant and her partner despite material inconsistencies. The absence of those assessments was a serious defect.
4. The court applied the adversarial-process principles stated in Jones v National Coal Board [1957] 2 QB 55 and Yuill v Yuill [1945] P 15. A first-instance judge may actively manage a case, but must not assume a quasi-inquisitorial role. Here, the judge’s constant and often contentious interventions in the evidence clouded his evaluation of it. That failure to perform the judicial function rendered the trial fundamentally flawed.
5. A retrial was the appropriate, though last-resort, remedy. It permits the possession claim to be determined on the facts then existing, without the flawed findings of the judgment under appeal.

• Court of Appeal (Civil Division) Allowed the local authority’s appeal and ordered a retrial before another judge: [2006] EWCA Civ 281.
• Shoreditch County Court HHJ Cotran dismissed the claim for possession, adjourned the money claim for rent arrears, and ordered repair of leaking radiators while dismissing the remaining counterclaim.