Wemimo Mercy Taiwo v Homelets of Bath Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 17 October 2018 |
| Neutral Citation | [2018] EWHC 2757 (QB) |
| Docket Number | County Court Case No: C01YP954 |
| Court | Queen's Bench Division |
| Date | 17 October 2018 |
[2018] EWHC 2757 (QB)
IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE BRISTOL
ON APPEAL FROM THE BRISTOL COUNTY COURT
Order of Recorder Christopher Sharp QC dated 12 April 2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Murray
County Court Case No: C01YP954
Appeal ref: 8BS0033C
Mr Christopher Maynard (instructed by Juliet Hardick Solicitors) for the Appellant
Mr Matthew White (instructed by Barcan+Kirby LLP) for the Respondent
Hearing dates: 16 October 2018
This is an appeal from the order of Recorder Christopher Sharp QC dated 12 April 2018 by which he entered judgment for the claimant, Mrs Wemimo Mercy Taiwo, in relation to her claims against the defendant, HomeLets of Bath Limited (“HBL”), for harassment and assault, with damages to be assessed, and in which he ordered costs in favour of Mrs Taiwo.
HBL applied for permission to appeal, with numerous grounds of appeal (12 in its original grounds of appeal and 10 in its amended grounds of appeal) and gave notice in its Appellant's notice that it would seek to introduce evidence that was not before the trial judge (“fresh evidence”) in the form of a letter dated 10 April 2012 from Mrs Taiwo to the Bath Police about the incidents that formed the basis of her civil claims against HBL (“the 10 April 2012 letter”).
The application for permission to appeal was considered on paper by Dingemans J, who refused permission on all grounds other than the following:
i) whether the judge should have admitted evidence from Mr Abayomi Odebode; and
ii) whether fresh evidence in the form of the 10 April 2012 letter should be admitted.
HBL renewed its application for permission in relation to the remaining amended grounds of appeal at an oral hearing before Andrews J on 10 October 2018. She refused permission on all of those grounds. The grounds on which permission was refused included (i) the judge having been wrong to treat Mrs Taiwo as a credible witness where her evidence was not corroborated (“Ground 6”) and (ii) the judge having wrongly “stepped into the arena” of the trial and thereby having ceased to act judicially (“Ground 8”). I will revert to these rejected grounds shortly.
Accordingly, there were two issues for me to consider at the hearing of this appeal. The hearing took the full day, leaving me insufficient time to prepare and deliver a judgment on the date of the hearing. I therefore decided to reserve my judgment overnight and hand it down the following morning. This is that judgment.
Background
The background is that in September 2009 an assured shorthold tenancy was granted to Mr Uchenna Jonathan Nwanokwu of Flat 4, Newland House, Lansdown Road, Bath BA1 5RE for a period of six months, and then another assured shorthold tenancy was granted to him for a six month term commencing 1 April 2010. The landlord's agent was HBL, a letting agency. Mr Nwanokwu subsequently changed his name in September 2010 to Ayobamidele Taiwo. Mrs Taiwo is his wife.
Mr Taiwo had written to HBL in June 2010 indicating that his wife would be moving from London to Bath to join him and enquiring as to whether they knew of a larger flat to let. He then wrote to enquire whether it was necessary to update his tenancy agreement to allow for his wife's presence. HBL informed him that no joint tenancy would be granted, and in the circumstances the landlord required the agents to serve a notice under section 21 of the Housing Act 1988 to recover possession on the expiry of the tenancy.
Mrs Taiwo moved to the flat in June. In July she spent about two weeks in hospital before her baby was born on 28 July 2010. It was a difficult birth, with complications, which the judge noted in his judgment at [11] had some effect on her mental state.
In August Mr Taiwo did not pay his rent, and when HBL chased him for payment, he replied by email that he was himself in hospital, but that he had arranged for a cousin to deal with matters on his behalf, including payment of the rent and complying with the notice to quit. There was further correspondence between Mr Taiwo and HBL which is set out in more detail in the judgment below. Mr Taiwo's principal contact at HBL was Mrs Caroline Arundell who worked for HBL, and the correspondence just referred to was between Mr Taiwo and Mrs Arundell.
Mrs Taiwo, as a litigant in person, brought an action against HBL for damages in respect of what she alleged to be a course of conduct over five days in 2010, with specific relevant events occurring on 30 September, 1 October and 5 October. She founded her action on the Protection from Harassment Act 1997 and the Protection from Eviction Act 1977. She also made allegations of assault and false imprisonment. The torts were committed by Mrs Arundell acting on behalf of HBL and by others acting under her direction. The consequences of the torts, Mrs Taiwo alleged, was severe injury to her mental health.
An order was made for a split trial, and the judge heard the trial of liability over three days on 9, 10 and 11 April 2018. I had the transcript before me and the opportunity to consider it in detail. The judge handed down his judgment on 12 April 2018. He made the order appealed against on 12 April 2018. On the second day of the trial he made a ruling about the admission of Mr Odebode's evidence, for which there was a separate transcript, which I have reviewed.
At the hearing before me, Mr Christopher Maynard for HBL took first the issue of the admission of the 10 April 2012 letter as fresh evidence and then addressed the issue of the judge's admission of Mr Odebode's evidence. I will therefore also deal with them in that order.
Admission of the 10 April 2012 as fresh evidence
The 10 April 2012 letter was written by Mrs Taiwo and addressed to the “Officer-in-charge” at Bath Police, Manvers Street, Bath BA1 1JN. The subject heading is “Re: Reported Harassment and hostage incidence [sic]”. It runs to two pages and sets out a version of the events that occurred over the period from 30 September 2010 to 5 October 2010, which formed the basis for the civil claims heard by the judge below. In the letter Mrs Taiwo urged the Bath Police to launch a criminal investigation in to those incidents.
HBL wishes to rely on the 10 April 2012 letter for its alleged inconsistencies with the evidence given in her witness statement for the trial dated 28 September 2017. The basic thrust of Mr Maynard's submissions was that the trial below had turned principally on the judge's relatively favourable assessment of Mrs Taiwo's credibility and relatively unfavourable assessment of Mrs Arundell's credibility. I note at this point that, sadly, Mrs Arundell passed away in 2014 and therefore her evidence was introduced as hearsay. Mr Maynard stressed that he was not seeking to go behind the refusal of permission to appeal in relation to Ground 6, although at times he did seem to be sailing close to the wind in that regard.
Mr Maynard's case was, in essence, that had the judge seen the 10 April 2012 letter, it would have materially altered his assessment of the credibility of Mrs Taiwo.
CPR 52.21(2)(b) requires the court's approval before fresh evidence can be received by an appeal court. The conditions that must be satisfied before doing so where famously set out in Ladd v Marshall [1954] 1 WLR 1489 (CA). As noted in the White Book at 52.21.3, citing Terluk v Berezovsky [2011] EWCA Civ 1534, while CPR 52.21(2)(b) is the primary rule, coupled with the duty to exercise it in accordance with the overriding objective, the Ladd v Marshall criteria effectively cover the range of issues that must be considered in deciding whether to exercise the court's discretion to admit fresh evidence in a particular case.
The Ladd v Marshall criteria are that:
i) the evidence could not have been obtained with reasonable diligence for use at the trial.
ii) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;...
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