London Borough of Hackney v Campbell and another
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE ARDEN,LORD JUSTICE JUDGE,LORD JUSTICE TUCKEY |
| Judgment Date | 23 January 2006 |
| Neutral Citation | [2005] EWCA Civ 613,[2006] EWCA Civ 86,[2004] EWCA Civ 1414 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 2006 |
| Docket Number | B2/2005/1364,B2/2004/1137(Z),B2/2004/1137 |
[2004] EWCA Civ 1414
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHOREDITCH COUNTY COURT
(HIS HONOUR JUDGE COTRAN)
Royal Courts of Justice
Strand
London, WC2
Lady Justice Arden
B2/2004/1137(Z)
MR M PALFREY (instructed by Hackney Legal Services) appeared on behalf of the Applicant
Thursday, 30th September 2004
This is a renewed application for permission to appeal from the order of His Honour Judge Cotran dated 28th April 2004. By his order the judge dismissed a claim for possession of a property known as Flat D, 43 Upper Clapton Road, London E5, belonging to the applicant, Hackney Borough Council. He further granted, as I understand it, specific performance of an obligation to convey the flat to the tenant further to her exercise of the right to buy the flat.
What Hackney contended was that the flat had to be the only or the principal home of Mrs Campbell, not only at the time she served notice exercising her right to buy, but also when it was transferred to her. Mrs Campbell was the tenant. Hackney contend that the judge ought to have found that Mrs Campbell had ceased to live there. She had been in the habit of visiting Jamaica for long periods. She had a son who claimed to live in the flat, but Hackney's case was that he had ceased to live there too and that the property was, in effect, rented out to other people.
The right to buy was exercised on 31st January 1989. The relevant law on intention to return was set out in counsel's further submissions before the judge, which appear at page 50 of the bundle of documents:
"2. In order to maintain a 'home' a tenant need not be physically present, so long as there is an intention to return to the property after a temporary absence and some physical sign of continued occupation (e.g. furniture and possessions in the property). Two properties can be occupied as a home at the same time; see further Crawley BC v Sawyer (1988) 20 HLR 98 CofA…
5. In Brickfield Limited v Hughes, Neil LJ extracted the following guidelines.
(1) Where the tenant's absence is more prolonged than is to be explained by holiday or ordinary business reasons and is unintermittent, the onus lies on the tenant of establishing an intention to return if he seeks the protection of the Act.
(2) An inward intention, however, is not enough. It must be accompanied by some outward and visible sign of the tenant's intention. The continued occupation by a caretaker or relative or the continued presence of furniture may be sufficient, but in each case the question is whether or not the person or furniture can be regarded as a genuine symbol of his intention to return 'home'.
(3) In addition the tenant must show that there is a 'practical possibility'—to use the phrase used in Tickner and Ormerod LJ in Gofor Investments—or a 'real possibility—to use Upjohn LJ's expression in Gofor—of the fulfilment of that intention within a reasonable time. What is a reasonable time depends on the circumstances, but it is to be noted that in Gofor the Court of Appeal declined to interfere with the judge's finding that in the circumstances of that case 10 years was a reasonable time.
(4) The protection of the Act can be claimed even though the tenant has another home or residence—the two words appear to be synonymous in this context (see Lord Brandon in Hampstead Way Investments Ltd v Lewis-Weare [1985] 1 WLR 164, 169) —but the court will look with particular care at two-home cases…
8. In Amoah v Barking and Dagenham LBC (2001) 81 P&CR 12, a case involving a prisoner who left items of furniture in the property and appointed a relative to act as caretaker in his absence. In allowing his appeal holding that his tenancy continued notwithstanding his absence and his living elsewhere, i.e. in prison, sufficient evidence of intention to return coming from retention of furniture and fact he visited whenever he could when transferred to an open prison and this was the only premises he could and would reside when released. Etherington J drew the following principles from the authorities.
(1) Absence by a tenant might be sufficiently prolonged to raise a presumption that the tenant was no longer a secure tenant. Whether or not that was the case was a matter of fact and degree;
(2) Assuming an absence of this length (i) the onus was on the tenant to rebut the presumption; (ii) the tenant had to establish a de facto intention to return; (iii) whilst there was no set limit to the length of any absence, a tenant was required to show that there was a practical or real possibility of the fulfilment of his intention to return to a property within a reasonable time; and (iv) the tenant had to show that his inward intention has some formal outward and visible sign, which was sufficiently substantial and permanent that, in all the circumstances, it was sufficiently adequate to rebut the presumption that he had ceased to be in possession."
Here the notice exercising the right to buy was originally given in 1988, but a further notice was given in 1996.
The evidence before the judge included that of Mrs Campbell. She said that she went away to Jamaica because her mother was sick. Her original statement was not clear as to the amount of time she was in Jamaica, but, as a result of cross-examination, it appeared that she was away during 1997 for six months, that she came back for a short time and then was out of the country in Jamaica from 1998 to April 2001, and then again from 1st July 2001 until ten days before the trial in April 2004.
Her evidence may be contrasted with that of Mr Singh, who is the head landlord. He saw Mrs Campbell move out in January 2000. He said that the removal took several days and that a van was used. He says that after that other people used the flat. His evidence was thus inconsistent with some parts of the evidence given on behalf of Mrs Campbell.
There was delay in completing the right to buy. The defendants gave notice of delay, as a result of which the rent for which they were liable was capable of being set off against the purchase price.
These events all led to Hackney serving a notice to quit. The matter came on before His Honour Judge Cotran. In the event he preferred the evidence of Mrs Campbell to that of Hackney's witnesses and he found in clear terms that there was an intention to return. The judge found that there were delays in completing the matter due, for instance, to a failure by Hackney to comply with the terms of the head lease of the flat of which they were tenants. As I have said, the landlord was Mr Singh. There were other delays due to the failure of Mrs Campbell. For instance, her son, Mr Campbell junior, was parking cars in breach of the terms of the head lease and as a result the landlord was unlikely to grant a new lease while that matter remained. Matters ground to a halt in March 1988. Notice of delay had been served by Mrs Campbell but Hackney did not respond to it. The effect was as I have indicated.
Mr Campbell junior also himself went to Jamaica for some nine months in 2003 to recover following a road accident.
I should add that in July 2000 Mrs Campbell wrote to her solicitors saying that she was in Jamaica. Her solicitors indeed communicated that fact to Hackney and at some stage that letter came into the possession of the local authority.
In August 2003 the property was inspected by an agent of Hackney. He found that the rooms inside the flat were individually locked, which is consistent with the property being used as a sort of hostel. In November 2003 Hackney wrote to Mrs Campbell, stating that the premises had been abandoned.
As I have said, the judge heard Mrs Campbell's evidence. She said that she had been abroad to look after her mother and also that the premises were in disrepair and that she had to go abroad because of the cost of heating and because she was not well in the flat as it stood. Her son claimed to be resident in the flat. As I have said, the judge found that she had an intention to return and that the flat was her only home. He held that she had sufficiently explained her absences.
On this application Hackney submits that the judge's findings were, in effect, perverse. Hackney has to show a real prospect of success on that point because this court does not interfere with findings of fact by a judge who has heard the evidence unless they were plainly wrong—in that event the court must interfere.
Mr Palfrey, who appears for Hackney, relies on the length of absences by Mrs Campbell and the fact that Mrs Campbell produced no evidence of her mother's condition, although she said her mother was aged 77 and suffered from hypertension. Mr Palfrey submits that the judge was wrong to reject the evidence of Mr Singh. This was a case of prolonged absence and the onus thus moved to the defendant to show that she had an intention to return. There was no contemporaneous evidence, for instance letters, that her absence was just temporary and the evidence of the defendants was imprecise. The judge accepted the imprecisions in that evidence but rejected the evidence of Mr Singh on the grounds that it was imprecise, although it had a greater degree of precision.
In my judgment, Mr Palfrey is correct to submit that, in the light of the evidence, the onus would have shifted to Mrs Campbell to prove to the judge, on a balance of probabilities, that she intended to return, and that that was the crucial issue before the judge, not...
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