Bassi v Anas

Reopening a final determination under Civil Procedure Rules 1998 r 52.17 requires real injustice, exceptional and appropriate circumstances, and no alternative effective remedy. Fresh evidence must also satisfy the established requirements concerning reasonable diligence, likely influence on the result and credibility. The jurisdiction does not provide a second opportunity to investigate an issue known throughout the trial, particularly where an adjournment was refused and the evidence could have been placed before the earlier permission judge. Proof that a signature is genuine does not, without more, establish that an agreement was made in the circumstances alleged or that an order was obtained by fraud.

This was an adjourned application by the tenant, Mr Saria Anas, under Civil Procedure Rules 1998 r 52.17 to reopen Jacob LJ’s refusal on 14 February 2007 of permission to appeal. The underlying proceedings were consolidated possession claims brought by the landlord, Mr Sameer Bassi, concerning a residential tenancy. HHJ Collins found that notices under sections 21 and 8 of the Housing Act 1988 had been served and that rent arrears existed.

The tenant later obtained a handwriting expert’s report which he said showed that the landlord had signed an amended tenancy agreement and rent receipts. He alleged that the possession order had been obtained by fraud. The central issues were whether the fresh evidence justified reopening the permission decision and whether the reopening jurisdiction could extend to an order allegedly obtained by fraud.

The Court of Appeal unanimously refused the application. Chadwick LJ gave the principal judgment, with which Wall LJ and Sir Peter Gibson agreed.

1. Rule 52.17. Reopening a final determination requires satisfaction of the conditions in r 52.17(1): reopening must be necessary to avoid real injustice; the circumstances must be exceptional and make reopening appropriate; and there must be no alternative effective remedy. The court was not persuaded that the first two conditions were met, so it was unnecessary to determine the third.
2. Fresh evidence. The court applied the requirements in Ladd v Marshall: the evidence must not have been obtainable with reasonable diligence for use at trial, must have an important influence on the result, and must be apparently credible. The handwriting report was apparently credible, but the first requirement was not met. The disputed signatures had been in issue throughout, the amended agreement was always in the tenant’s possession, an adjournment had been refused, and there was no adequate explanation why the report could not have been obtained earlier. The tenant could also have placed a report before Jacob LJ on 14 February 2007.
3. The evidence failed the important-influence requirement as well. The trial judge had rejected the tenant’s account of the alleged meeting and had decided the possession claim on rent arrears and the section 8 notice. Showing that a signature was the landlord’s would not establish how it came to appear on the document or prove that the landlord had committed fraud.
4. The reopening jurisdiction should not be used to rerun a trial with evidence that could have been adduced earlier. The Court of Appeal would be slow to go behind the refusal of an adjournment, especially where no expert report had been placed before the earlier permission judge.
5. It was unnecessary to decide whether the jurisdiction identified in Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 extended to alleged fraud. Chadwick LJ considered that Couwenbergh v Valkova [2004] EWCA Civ 676 had probably settled that the jurisdiction should not be categorically excluded where a fresh fraud action was available. The court should consider whether reopening with a likely retrial or a separate action was the more sensible route. A separate action appeared more appropriate here, but the point did not require determination.

Order: application refused.

• Court of Appeal (Civil Division): On 30 June 2007 the court refused the tenant’s application under Civil Procedure Rules 1998 r 52.17 to reopen the final determination of the permission application.
• Court of Appeal (Civil Division), Jacob LJ: On 14 February 2007 permission to appeal from the possession decision was refused. On 15 February 2007 leave to petition the House of Lords was refused pursuant to section 54(4) of the Access to Justice Act 1999.
• Central London County Court: HHJ Collins CBE determined the consolidated possession proceedings on 21 December 2006. He found the relevant notices served, found rent arrears, awarded £1,000 damages for harassment against the tenant, and made a possession order.