Leeds and Yorkshire Housing Association v Vertigan

When deciding whether to suspend a possession order, an appellate court asks whether the first-instance judge erred on the evidence and the way the case was conducted. It does not undertake a second discretionary assessment. A tenant’s later undertaking will not ordinarily justify interference where an equivalent assurance could have been given at trial. The central question remains the likelihood of compliance, assessed by past behaviour, the circumstances of the offer and the reliability of the tenant’s word. The trial judge is particularly well placed to make that assessment. If a materially new undertaking is relied on, its admission should generally be approached as fresh evidence. Persistent breaches may justify an outright possession order even where no individual breach is serious.

An assured tenant occupied a ground-floor flat let by the housing association. The county court found persistent dog fouling, unauthorised works and deliberate damage connected with access to a cellar. It made a possession order and separately considered whether the order should be suspended subject to conditions, concluding that the tenant was unlikely to comply.

Permission to appeal was limited to whether the order should be suspended in light of undertakings offered on appeal concerning the dogs, the unauthorised structure and access to the cellar. The central issue was whether those undertakings justified appellate interference with the county court’s discretionary assessment.

1. Appeal dismissed. The county court’s decision to make an immediate possession order fell within the proper range and was, in the view of the Court of Appeal, plainly right.
2. The function of the appellate court was to determine whether the judge had been wrong in law on the evidence and on the way the case had been conducted. It was not to give a party a second opportunity to improve its case. Permission to challenge the underlying findings had been refused. Fresh evidence could be admitted only under restricted principles.
3. The undertaking offered on appeal did not justify interference. On Norris J’s analysis, it was not fresh evidence in any meaningful sense because the tenant had had the opportunity to offer it below. It had no greater significance than the promise previously made through counsel; in either case the relevant question was the likelihood of compliance. The approach mirrored that of Richards LJ in Sharab v Abdul-Aziz Al Saud [2009] EWCA Civ 353 at [52].
4. Elias LJ agreed that the later undertaking was not materially different from the assurance given below. Alternatively, if it was materially new, its admission should be considered in much the same way as fresh evidence, so that the principles in Ladd v Marshall normally applied. Those principles were not satisfied because the undertaking could have been offered at trial.
5. The assessment of likely future compliance depended on past behaviour, the circumstances in which compliance was offered, and the reliance that could be placed on the tenant’s word. That assessment was pre-eminently for the trial judge, who had seen the tenant give evidence and understood the factual nuances of the case. Persistent breaches, even if individually modest, could justify an immediate possession order where the circumstances warranted it.
6. The court dismissed the appeal without relying on additional evidence tendered by the landlord concerning alleged continuing breaches. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the immediate possession order.
• Leeds County Court: HHJ Belcher found breaches of the tenancy and made an outright possession order after concluding that suspension was inappropriate.