Cambridge City Council v Joyce

An appellate court cannot ordinarily revisit findings of primary fact on an appeal from a possession order. It may review whether possession was reasonable, but intervention is justified only where that assessment was plainly wrong. Evidence available at trial should ordinarily be deployed there and will not be admitted on appeal without good reason. In assessing reasonableness, the court may balance the tenant’s personal and medical difficulties against the effect of proven conduct on neighbours and housing officers. A restraining order may be considered for a limited contextual purpose, but cannot replace independent findings on alleged breaches.

A secure tenant appealed against a possession order and an order for committal made by HHJ O’Brien in the Cambridgeshire County Court on 27 January 2009. The possession proceedings relied on alleged breaches of tenancy conditions under the Housing Act 1985. The committal order concerned three breaches of an injunction restraining nuisance, intimidation and related conduct.

The tenant challenged the trial judge’s factual findings, the exclusion of evidence, alleged non-disclosure, the use of a magistrates’ court restraining order, and the sentence imposed when he was absent from part of the trial. The issues were whether there was any proper basis for appellate interference with the findings, the reasonableness of the possession order, and the correctness of the committal sentence.

1. Appeal and permission. The Court of Appeal dismissed the appeal against the possession and committal orders and refused permission to appeal against the possession order.
2. Findings of fact. Section 77(6) of the County Courts Act 1984 prevented an appeal based on the judge’s findings of fact. The court could review the evaluation of whether possession was reasonable, but could interfere only if that assessment was plainly wrong. The trial judge had heard six days of evidence, seen the witnesses, considered the CCTV material and correctly applied the relevant standards of proof. There was no basis to disturb his findings.
3. Possession and reasonableness. The judge was entitled to balance the tenant’s mental impairment and physical difficulties against the distress and intimidation caused to neighbours and council officers. The possession order was not plainly wrong. The restraining order was not used to establish the tenancy or injunction breaches; the judge expressly took no account of the conviction for that purpose. He was nevertheless entitled to rely on the restraining order for the limited point that earlier court intervention had not changed the tenant’s conduct.
4. Evidence and disclosure. The trial judge was entitled to exclude late letters where case-management directions barred further evidence and the proposed witnesses were unavailable to give oral evidence. CCTV footage available at trial could not assist on appeal because there was no good reason for its earlier non-use. An alleged council vendetta could not excuse or diminish the seriousness of the proven allegations.
5. Sentence. The committal sentence was not plainly wrong. The judge had considered alternatives, imposed only 21 days’ imprisonment, suspended it on conditions requiring compliance with existing court orders, and had not ordered immediate imprisonment.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 339: appeal against the possession and committal orders dismissed; application for permission to appeal against the possession order refused.
• Cambridgeshire County Court — order made by HHJ O’Brien on 27 January 2009: possession order made and committal sentence imposed for three breaches of the injunction.