Hughes Jarvis Ltd v David Searle
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Leggatt,Lady Justice Nicola Davies |
| Judgment Date | 15 January 2019 |
| Neutral Citation | [2019] EWCA Civ 1 |
| Docket Number | Case No: B2/2018/1187, 1186 and 2581 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 2019 |
[2019] EWCA Civ 1
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT OXFORD
HH Judge Melissa Clarke
C02UB930
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Leggatt
and
Lady Justice Nicola Davies
Case No: B2/2018/1187, 1186 and 2581
and
Mr Jarvis appeared in person
Mr Oliver Hyams (instructed by Duncan Lewis) for the Respondent
Hearing date: 12 December 2018
Approved Judgment
These appeals are from various orders made by HH Judge Melissa Clarke in the Oxford County Court during the trial of an action for possession of a first floor flat at 42A Oak End Way, Gerrards Cross (“the Flat”). The two appellants are the claimant, Hughes Jarvis Limited (“HJL”) and the third party, Mr Neil Jarvis (“Mr Jarvis”), who is the sole director and shareholder of HJL. The defendant and respondent to these appeals, Mr David Searle (“Mr Searle”), has been the tenant of the Flat since about 1989 under an assured or statutory tenancy governed by the Rent Act 1977 (“RA 1977”).
There is an issue between the parties as to whether the tenancy includes the use of a garden and parking space. Mr Searle also rents some neighbouring garages from a different landlord and claims that he has a right of way to those garages along an access road which is also in the ownership of HJL.
The Flat is one of a number of flats above a parade of shops in Oak End Way. HJL acquired most of the parade (together with some adjoining property) in 2014 with a view to the re-development of the site and, as at the date of the trial, it had secured vacant possession of a large part of the site with the exception of the Flat and some other premises in the parade. Planning permission has been obtained for residential development of the site in the form of a number of self-contained apartments and the development project will be financed by loans from a variety of lenders including a facility of £500,000 from Limecourt Finance & Investments Limited (“Limecourt”) which, according to Mr Jarvis's evidence, was intended to provide additional working capital to HJL and has been drawn down in full. The loan is secured by a second charge on the development site and by a personal guarantee from Mr Jarvis.
Mr Searle has declined to vacate the Flat to allow the development of that part of the site to proceed and on 2 December 2016 HJL commenced proceedings against him for possession of the Flat together with the garden and car parking space I have described. The claim is brought under Ground 9 of Schedule 2 to the Housing Act 1988 (“HA 1988”) or alternatively s.98(10)(a) of the RA 1977: namely, that suitable alternative accommodation will be available to Mr Seale and his wife when the possession order takes effect. To succeed HJL must therefore satisfy the Court that the alternative accommodation it relies on is suitable having regard to the conditions set out in Part III of Schedule 2 and also that it is reasonable to make the order: see HA 1988 s.7(4).
HJL has made various offers to Mr Searle of what it contends would be suitable alternative accommodation but as at the trial its pleaded case relied on the provision of a two-bedroomed flat in Block B of the new development together with a parking space (which was complete and ready for immediate occupation) with the option of a one-bedroomed flat and parking space in Block E as and when it is completed. Mr Searle denies that a new flat on the site would be suitable alternative accommodation because, inter alia, it would lack a garden which he needs for his dog and because it will be too small. But he has also pleaded that the proposed new flat in Block E may not be available because there is a substantial risk that the development may not be completed. It was therefore necessary to examine at trial what was the state of the development and the impact which, for example, a failure by HJL to obtain an order for possession of the Flat would have on the offer of suitable alternative accommodation.
In addition to resisting the claim for possession, Mr Searle has also counterclaimed against both HJL and Mr Jarvis. The counterclaim against HJL is for breach of its repairing obligations under the existing tenancy but he also alleges that both HJL and Mr Jarvis have obstructed his right of way along the access road and have trespassed by attempting to enter the garages which he rents from the other landlord.
The trial of the action was listed for a three-day hearing beginning on Wednesday 25 April 2018. Mr Jarvis began his evidence that day and was being cross-examined at the time of the short adjournment. Before rising the judge gave Mr Jarvis the customary warning not to discuss his evidence with anybody. She said:
“I have to give you the same warning that I give every witness who has a break halfway through their evidence, which is that it is extremely important that you do not speak to anybody about the evidence you have given or the evidence that you are about to give during this short break. That includes your legal advisers, that includes anyone on the phone, that includes your wife if she phones up. Just say: “I can't talk about it”. Do not discuss any evidence, all right? Just for this short break.”
Then later in the afternoon the following exchange occurred:
“MR JARVIS: May I just ask a question on process? If it gets to 4.30 and we haven't finished, does that prevent me talking to my legal counsel overnight?
JUDGE CLARKE: Yes, it does, I am afraid. That is why it is nice to try and get it sorted. But certainly you cannot have any discussions with your counsel about your evidence. You can about very ordinary matters like what time you are attending in the morning, etc.
MR JARVIS: Would that not disadvantage me?
JUDGE CLARKE: No, not at all. It ensures that the evidence that you give is completely untainted by anything anyone may say to you.”
By the end of the afternoon Mr Jarvis was still being cross-examined. Before adjourning until the next day, the judge said:
“I have to give you the same warning that I gave you at lunchtime, but it is an important one, not discuss the evidence you have given or any evidence you may give with anybody.”
The judge did, however, give Mr Jarvis permission to talk to his solicitors and counsel for the purpose of identifying certain architects' drawings relevant to the development. This occurred during a discussion between the judge and counsel about further evidence:
“JUDGE CLARKE: [addressing counsel for the claimant]: I do not know whether there is very much that you do need to discuss today. What did we say that you would need to sort out overnight? Between the two of you, you were going to think about something overnight. Oh, the pleadings.
MS TOMAN: Your Honour, and there are going to be some architects' drawings, but I think we have got those already. So that is just a matter of producing.
JUDGE CLARKE: The pleadings, I do not think, is a matter you need to really discuss with Mr Jarvis at this stage. That is really something that is going to be addressed in closing. So you will be able to take instructions about that. In terms of identifying architects' drawings then you can discuss that with Mr Jarvis, that does not seem to be an issue.
MR JARVIS: I have some administration issues of things I think they should have provided that I'd like them to provide. Can I talk to them about that?
MR HYAMS: The problem is, your Honour, adducing evidence after someone has been cross-examined is not really how this works.
JUDGE CLARKE: No, I think your opportunity to adduce evidence has passed, really. It is important, as I say, that you do not discuss your evidence with anybody. So if we can limit only conversations with your legal counsel to identification of architects' plans, you will have the opportunity then of course to give further instructions after your evidence has finished tomorrow.”
Despite the judge's warning, overnight Mr Jarvis sent to his solicitors and to Ms Toman a number of emails. We have not examined the content of the emails because, for reasons I will come to, it is not relevant. The following morning counsel told the judge that Mr Jarvis had sent the emails but that she had not read them and had simply replied to him by email saying that he must not communicate with her whilst under cross-examination. There is a possible issue between Mr Jarvis and his then solicitors as to the circumstances in which he came to send the emails. He says that he sent them after being requested to do so by his solicitors. But we have refused Mr Jarvis permission to adduce further evidence about this because, for reasons which I will explain, it is not necessary for us to take these circumstances into account for the purpose of disposing of these appeals. The new evidence may also prove controversial given that Mr Jarvis is in dispute with his solicitors about their fees and they have now ceased to act for him.
After Ms Toman had disclosed to the judge the existence of the emails, Mr Jarvis continued to be cross-examined. In his evidence-in-chief he had indicated that if HJL failed to obtain vacant possession of the Flat it was likely that the company's lenders would step in to demand repayment of their loans, would re-possess the site and probably sell it in its existing state in order to recoup the loans. This would also apply to charges over his house given to secure some of HJL's borrowings and might even lead to his bankruptcy. But when asked by Mr Hyams to clarify the position Mr Jarvis said that the lenders including Limecourt would probably step in to complete the development at their own expense and would then sell it in order to recoup...
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