London Borough of Southwark v Ibidun

An appellate court reviewing a possession decision must respect findings of fact unless the decision was wrong or procedurally unjust. Whether a secure tenant continues to occupy a dwelling as a home involves the staged approach identified in London Borough of Islington v Boyle [2011] EWCA Civ 1450. The court first asks whether the absence and surrounding circumstances compel an inference that occupation as a home has ceased. Only if that inference arises does the evidential burden move to the tenant. Regular occupation, administrative links and other circumstances may establish continued occupation; the court need not count days mechanically. Payments by an occupier do not, without exclusive possession, establish a subletting. A witness’s lies do not require wholesale rejection of the remainder of the evidence. Fresh evidence must satisfy the Ladd v Marshall criteria and must probably have an important influence on the result.

The London Borough of Southwark appealed against a possession judgment made by His Honour Judge John Mitchell in the Central London County Court. The claim concerned a secure tenancy of a studio flat, rent arrears and unlawful profit under the Prevention of Social Housing Fraud Act 2002. The county court dismissed the possession claim, finding that the respondent continued to occupy the flat as her principal home and had not parted with possession.

The appeal challenged the judge’s factual findings, his application of the secure-tenancy conditions under the Housing Act 1985, his treatment of credibility and his refusal to order a retrial based on further evidence concerning advertisements and an alleged occupier. The central issues were whether the county court had made an error of law or a serious procedural irregularity, and whether the further evidence justified a rehearing.

1. Appeal dismissed. Under CPR 52.21, the appeal was limited to a review. The appellant had to show that the county court’s decision was wrong or unjust because of a serious procedural or other irregularity. No such error was established.
2. The county court correctly applied the staged approach in London Borough of Islington v Boyle [2011] EWCA Civ 1450. The first question was whether the respondent’s absence, viewed with the other circumstances, compelled an inference that she had ceased to occupy the flat as her home. The judge found as fact that she continued to use it as a home. The second stage, including any evidential burden on the tenant, therefore did not arise.
3. The finding that the respondent received regular payments from another occupier was not inconsistent with the finding that she had not sublet or parted with possession. Without exclusive possession there could be no subletting. The payments were not determinative.
4. The judge was entitled to consider the respondent’s lies in context. A witness may lie for different reasons, and the fact of some lies does not require the court to reject all of that witness’s evidence. The conclusion was supported by other evidence, including evidence from the respondent’s mother, a social-work note and administrative links with the property.
5. The additional evidence did not justify a retrial. Applying the principles in Ladd v Marshall [1954] EWCA Civ 1, as set out in Saluja v Gill [2002] EWHC 1435 (Ch), the evidence would not probably have had an important influence on the result. An advertisement seeking to let the property did not establish that it had in fact been let, and the proposed investigation extended beyond the issues tried. A retrial would risk giving the appellant two opportunities to establish subletting.
6. The court was required to balance the desirability of the right result against the need for concluded litigation to determine disputes. The appellant had not shown that the decision was wrong or procedurally unfair.

• Central London County Court: His Honour Judge John Mitchell dismissed the possession claim after finding that the respondent continued to occupy the property as her principal home.
• High Court (Queen’s Bench Division): The appeal was dismissed. Permission to appeal had been granted, and permission had also been given for specified further evidence, but no retrial was ordered.