London Borough of Havering v Dove & Anor

Permission to appeal is appropriate where the proposed grounds show a real prospect of success. An only or principal home finding is arguably defective if the court fails to analyse the degree of occupation, absences, retained possessions and enduring intention in light of the objective facts. In rent-arrears possession proceedings, it is arguable that the court must separately consider the arrears, their cause, reasonableness and any discretion to suspend possession under the Housing Act 1985. A party’s medical condition, representation and ability to give evidence may also be relevant to the fairness of the trial and any adjournment application. The judgment determined permission only and did not decide the substantive appeals.

The local authority granted Elaine and Evelyn Dove a secure tenancy. Following the withdrawal of housing and council tax benefit, it sought possession of their flat, recovery of nearly £14,000 in rent arrears and mesne profits. HHJ Bailey refused Evelyn’s application to adjourn the trial and later ordered both tenants to give up possession. He held that issue estoppel resolved whether the flat was their only or principal home and made further findings on occupation, arrears, reasonableness and Article 8.

Floyd LJ refused permission to appeal on the papers. At an oral reconsideration, the applicants argued that the lower court had failed properly to analyse the only or principal home issue, exercise its statutory jurisdiction on rent arrears, conduct the trial fairly and apply the correct approach to adjournment. The central question was whether the proposed appeals had a real prospect of success.

Permission granted. The Court of Appeal granted Evelyn and Elaine Dove permission to appeal against the orders concerning the adjournment and possession. The substantive appeals were not determined.

1. Only or principal home. The court considered that the lower judge had arguably failed to engage with the required factual analysis. Relevant matters included the degree of occupation, whether the length of absence raised a presumption that the property was no longer the only or principal home, whether that presumption was rebutted, the possessions retained at the property and the tenants’ enduring intention, assessed against the objective facts.
2. Evelyn’s position and fair presentation. Although the evidence against Evelyn was considered stronger, her medical condition was an additional matter which the lower judge had arguably failed properly to consider. The conduct of the trial may also have denied her a fair opportunity to present her case if it prevented her from giving oral evidence.
3. Rent arrears. It was properly arguable that the lower judge had failed to exercise the jurisdiction conferred by sections 84 and 85 of the Housing Act 1985. The court identified the need for separate consideration of the reason for the arrears, their amount, reasonableness and the discretion to suspend possession. The lower judge’s conclusions on the only or principal home issue may have materially influenced the possession decision on the rent ground.
4. Adjournment. The challenge to refusal of an adjournment was also permitted. The court was doubtful that permission would have been granted on this ground alone, but considered it appropriate to grant permission in light of the other arguable grounds and the submissions concerning the correct balancing exercise, the medical evidence and the loss of legal representation.

1. Court of Appeal (Civil Division): On 4 May 2016, Kitchin LJ granted permission to appeal on the oral reconsideration of the applications.
2. Court of Appeal: Floyd LJ refused permission to appeal on the papers on 12 October 2015.
3. Central London County Court: HHJ Bailey refused an adjournment and subsequently ordered Elaine and Evelyn Dove to give up possession and pay rent arrears and mesne profits.