Auliffe & Ors v Ellis

An appellate court should be slow to interfere with a trial judge’s primary findings of fact. It must identify an appealable error in the process of reasoning, such as a finding unsupported by the evidence, a misunderstanding of material evidence, or a failure to consider evidence that mattered to the result. It is insufficient that the appellate judge might have reached a different view.

A statutory presumption that a notice sent by post was delivered in the ordinary course remains rebuttable. The party seeking to rebut it bears the burden of proving non-delivery on the balance of probabilities. A trial judge may reject evidence of non-receipt by assessing credibility, inconsistencies and circumstantial evidence; direct evidence of receipt is unnecessary.

The appeal arose from an order of HHJ Gore QC in the Exeter County Court dated 20 April 2018. The order granted the Auliffes possession of Teign Marsh and mesne profits after the judge found that a notice to quit had been validly served on the personal representatives of the deceased tenant.

The tenancy was governed by the Agricultural Holdings Act 1986. The notice was sent to the correct address by registered and ordinary post within the statutory period. The appellant argued that it had not been delivered and challenged the trial judge’s assessment of the evidence, fairness of the trial, and adequacy of his reasons. The central issue was whether the appellate court had a proper basis to interfere with the primary factual finding that non-delivery had not been proved.

1. Appeal dismissed. None of the six amended grounds, nor the wider challenge advanced at the hearing, justified interference with the County Court’s order for possession and mesne profits.
2. Under s.93 of the Agricultural Holdings Act 1986 and s.7 of the Interpretation Act 1978, the notice to quit was duly given when correctly addressed and sent by registered post. It was therefore presumed to have been delivered in the ordinary course of post unless the contrary was proved. The appellant bore the burden of proving non-delivery on the balance of probabilities.
3. The court followed the approach summarised in Walsh v Kirklees BC [2019] EWHC 492 (QB), including the caution required before overturning a trial judge’s findings. The question was not whether the appellate judge might have reached a different conclusion, but whether the trial judge’s reasoning involved a material error or could not reasonably be explained or justified.
4. The trial judge was entitled to assess the reliability of Mrs Ellis and Richard by reference to the documentary evidence, inconsistencies, their evidence about the address, and the surrounding circumstances. Evidence that they had not contacted advisers until November 2014 was, at best, neutral. Direct evidence of receipt was not required before their evidence of non-receipt could be rejected.
5. The trial judge’s reference to an inconsistency between paragraphs 27 and 29 of Mrs Ellis’s witness statement was a minor mischaracterisation. It was not a substantial part of the reasoning, and ample independent reasons supported the conclusion.
6. The judge’s rejection of the submission that Mrs Ellis and Richard were unsophisticated did not render the trial unfair. The point had been advanced by counsel in closing and arose from the evidence and cross-examination. The judge was entitled to reject it without requiring separate cross-examination.

The order granting possession and mesne profits was therefore upheld.

• High Court (Queen’s Bench Division): On appeal from the Exeter County Court, the appeal against HHJ Gore QC’s order dated 20 April 2018 was dismissed.
• Exeter County Court: HHJ Gore QC found that the notice to quit had been validly served, granted possession to the Auliffes and awarded mesne profits.