Southwark London Borough Council v Kofi-Adu
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jonathan Parker |
| Judgment Date | 23 March 2006 |
| Neutral Citation | [2006] EWCA Civ 281 |
| Docket Number | Case No: B2/2005/0315 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2006 |
[2006] EWCA Civ 281
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Shoreditch County Court
HHJ Cotran
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Jonathan Parker and
Sir Martin Nourse
Case No: B2/2005/0315
LB324002
Kuljit Bhogal (instructed by Messrs Judge & Priestley) for the Appellant
Annette Cafferkey (instructed by Messrs Reid Sinclair &Co) for the Respondent
This is the judgment of the Court.
INTRODUCTION
This is an appeal by the London Borough of Southwark ("Southwark") , the claimant in the action, against an order made by HHJ Cotran, sitting in the Shoreditch County Court, on 20 December 2004. By his order the judge dismissed Southwark's claim against Ms Kofi-Adu, the respondent to the appeal, for possession of a one-bedroom flat at 12 Livingstone House, Comber Estate, Crown Street, London SE5, of which she is a secure tenant of Southwark by virtue of a tenancy agreement dated 27 June 2001.
Southwark seeks possession of the flat on Grounds 1 and 2 in Part 1 of Schedule 2 to the Housing Act 1985 (as amended by the Housing Act 1996).
Under Ground 1, possession may be ordered where:
"Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed."
Under Ground 2, possession may be ordered where (so far as material) :
"The tenant or a person residing in …. the dwelling-house … has been guilty of conduct causing … a nuisance or annoyance to a person residing … in the locality."
Section 84(2) of the Housing Act 1985 provides as follows (so far as material) :
"(1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.
(2) The court shall not make an order for possession –
(a) on the grounds set out in Part 1 of that Schedule (grounds 1 to 8) unless it considers it reasonable to make the order …."
In support of its case under Ground 1, Southwark relies on the fact that since shortly after the grant of the tenancy in June 2001 the rent, which is payable weekly in advance, has been continuously in arrear: indeed, the rent account has never been in credit. At the commencement of the possession action, in September 2003, the arrears amounted to £1021.88, and by the start of the trial (on 2 December 2004) they had increased to £2,981.45. In addition to its claim for a possession order, Southwark seeks a money judgment in respect of the arrears.
By her Defence, Ms Kofi-Adu put Southwark to proof of the existence and amount of any rent arrears, but at trial the figures put forward by Southwark were not disputed.
Southwark also claims possession under Ground 1 on the basis that Ms Kofi-Adu has breached clause 8 of the tenancy agreement in that she has on numerous occasions since about August 2001 caused nuisance, annoyance or offence to other tenants, their families, lodgers and visitors, by (and I quote from paragraph 4.1 of the Schedule of Entitlement to Possession annexed to Southwark's Particulars of Claim) :
"Banging, hammering and objects being dropped; children running around the premises; flooding your neighbour's premises."
The "neighbour" there referred to is 77-year old Mrs Mary Aitcheson, another secure tenant of Southwark who lives alone in number 8 Livingstone House. Number 8 is immediately below the living room and kitchen of Ms Kofi-Adu's flat at number 12. The Schedule goes on to give particulars of numerous occasions of such alleged nuisance and annoyance.
Those allegations are also relied on by Southwark as founding its claim to possession under Ground 2. Southwark's case under Ground 2 also extends to Ms Kofi-Adu's partner, Mr Osei. He moved into number 12 in December 2003, but before that he was a frequent visitor at number 12. He is the father of Ms Kofi-Adu's three young children.
As to the requirement of reasonableness imposed by section 84(2) (above) , paragraph 5 of Southwark's Schedule pleads as follows:
"Given the rent arrears and serious and frequent complaints of anti-social behaviour, an immediate order for possession would be both reasonable and proportionate."
By her Amended Defence and Part 20 Claim Miss Kofi-Adu denies any breach of clause 8 of the tenancy agreement. She further denies that it would be reasonable to make a possession order, pleading (among other things) that since moving into number 12 she has tried to live as quietly as she could; and that she has willingly participated in attempts to resolve the dispute with Mrs Aitcheson by mediation, but that such attempts have failed due to Mrs Aitcheson's refusal to cooperate. She also relies on her rights under Article 8 of the European Convention on Human Rights.
By her Part 20 Claim Ms Kofi-Adu alleges that Southwark has failed to comply with its statutory obligation to keep number 12 in proper repair, specifying (among other things) leaking radiators. She seeks an order for specific performance to remedy the defects in repair, plus damages limited to £5,000.
So the issues for decision at trial were:
1. whether Southwark's case for a possession order on Ground 1 was made out;
2. whether its case for a possession order on Ground 2 was made out;
3. in the event that Southwark had made out its case for a possession order on one or both of Grounds 1 and 2, whether it was reasonable to make a possession order; and
4. whether Ms Kofi-Adu was entitled to any (and if so what) relief on her Part 20 Claim.
Issues 1 and 2 were pure issues of fact. As to issue 3 (reasonableness) :
"the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing … in … a broad, commonsense way, as a man of the world, and come to a conclusion giving such weight as he thinks right to the various factors in the situation" (per Lord Greene MR in Cumming v. Danson [1942] 2 All ER 653 at 655E-G).
Issue 4 raised a pure issue of fact as to the state of repair of number 12 (the repairing obligation of Southwark not being in dispute).
Given that at trial both parties were represented by experienced counsel, one could be forgiven for supposing not only that those issues were susceptible of resolution at a relatively short hearing, but also that the prospects of a successful appeal against the judge's decisions on those issues would be remote. However, as matters have turned out such a supposition would have proved false in both those respects.
The trial itself was initially estimated to last one and a half days: a generous enough estimate, one would think (indeed, the judge himself thought so) . In the event, and excluding delivery of judgment (which took place on 20 December 2004) , it extended over a further two court days. It started in the afternoon of 2 December 2004 and continued on 6, 9 and 17 December 2004, generating a transcript which exceeds 800 pages. On numerous occasions throughout the trial the judge expressed concern at the time the trial was taking. However, it is a regrettable fact that the judge's conduct of the trial was the main reason why it took as long as it did. The transcript reveals a constant stream of interruptions by the judge throughout the trial, including sometimes lengthy passages of interrogation of the witnesses, both during examination-in-chief and during cross-examination. We shall have more to say about the judge's conduct of the trial later in this judgment.
By his judgment the judge accepted Southwark's figures as to rent arrears, but subject to a finding that Ms Kofi-Adu would be entitled to housing benefit as from May 2004 (when payments of housing benefit were suspended) ; and that the effect of that entitlement would be to reduce the rent arrears to £1,000 or thereabouts. He substantially rejected Mrs Aitcheson's evidence in support of the allegations of nuisance and annoyance, and dismissed Southwark's claim based on those allegations. He went on to hold that, in the light of his findings, it would be most unreasonable to make an outright order for possession. On Miss Kofi-Adu's Part 20 Claim he found that Southwark was in breach of its repairing obligations in that there were leaking radiators in her flat.
By his order, the judge dismissed Southwark's claim for possession and adjourned the claim for a money judgment to be determined by a district judge (presumably so that Ms Kofi-Adu's entitlement to housing benefit, and hence the true amount of the rent arrears, could be quantified) . On Miss Kofi-Adu's Part 20 claim he ordered Southwark to repair the leaking radiators. Subject to that, he dismissed the Part 20 claim (that is to say, he declined to award damages).
Southwark issued an appellant's notice seeking permission to appeal, and on 27 May 2005 Longmore LJ granted permission on the papers. Miss Kofi-Adu has issued a respondent's notice inviting this court to uphold the judge's judgment on additional grounds.
So the position has now been reached where, following a lengthy trial, the case is now in the Court of Appeal. In a case of this kind, involving straightforward fact-based issues, that in itself seems to us to be a regrettable state of affairs.
THE FACTS
The background facts can be shortly stated.
We begin with the facts relating to arrears of rent.
Number 12 Livingstone House is on the third and fourth floors of a five-storey block, built in about the 1930s. The living room and...
To continue reading
Request your trial
-
Murtagh v Minister for Defence
...of the way the judge handled the trial, I will add a few words of my own. As Jonathan Parker LJ said in Southwark LBC v. Kofi-Adu [2006] EWCA Civ. 281: "the risk [of frequent judicial interventions during the evidence] is that the judge's descent into the arena ... may so hamper his abilit......
-
Adigun v McEvoy
... ... 6 Arambe, with Arts Council funding, by a contract dated 6th February 2006, ... 189 , Power v. Doyle 2 I.R. 69 and London Borough v. Kofi-Adu [2006] ECWA Civ. 281 ... The ... ...
-
Jan Tomasz Serafin v Grzegorz Malkiewicz
...the cross-examiner is “at a grave disadvantage if he is prevented from following a preconceived line of inquiry”. 41 In London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281, Jonathan Parker LJ, giving the judgment of the Court of Appeal, suggested at paras 145 and 146 that trial judg......
-
M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd
...must bear in mind that ( per Jonathan Parker LJ in The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 at [142]): “…within the bounds set by the Civil Procedure Rules, a first instance judge is entitled to a wide degree of latitude in the way......
-
How much can a judge intervene in cross-examination before a trial becomes unfair?
...their case properly. Judges should be impartial and neutral The Court of Appeal considered the decisions in Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281 and Jones v. National Coal Board [1957] 2 QB 55, which give guidance on what can amount to procedural unfairness. A first instance judge ......
-
How much can a judge intervene in cross-examination before a trial becomes unfair?
...their case properly. Judges should be impartial and neutral The Court of Appeal considered the decisions in Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281 and Jones v. National Coal Board [1957] 2 QB 55, which give guidance on what can amount to procedural unfairness. A first instance judge ......