High Court judge rejects appeal by council over dismissal of possession claim

An appeal by the London Borough of Southwark in a possession case has been dismissed as being based on a disagreement about the facts found by the original judge.

The council brought a claim for possession for failure to comply with the tenant conditions in s81 of the Housing Act 1985 and subletting contrary to its s93.

At trial in Central London County Court in June HHJ Mitchell found exclusive possession had not been surrendered, and rejected Southwark’s case.

The council appealed contending Judge Mitchell had found contrary to public policy, misdirected himself as to his discretion, misdirected himself in law, failed to take account of relevant matters; assigned disproportionate weight to the respondent’s evidence at trial and had been misled by an incorrect answer which amounted to a serious irregularity.

But Moulder J found in the High Court that a retrial would give Southwark ‘a second bite of the cherry’ and dismissed its appeal.

She said it failed to identify the principles it asserted were engaged and that Judge Mitchell had not misdirected himself as to his discretion and the argument was simply a disagreement with the facts he found.

The trial judge had followed the Islington v Boyle case but found there had been no ‘parting with possession’ and thus rightly did not go on to consider the second stage of that case.

Moulder J said the judge did not have refer to all the evidence of an extensive trial in his judgement, and the credit reports that Southwark complained were omitted were not so substantial as to constitute an error.

There had been no error in Judge Mitchell’s assessment of evidence and the incorrect answer given had no important influence on the trial.

Sebastian Elgueta of Garden Court Chambers represented the respondent, a Ms Ibidun.

Stephanie Cryan, Southwark’s cabinet member for housing, said the council had an acute shortage of affordable housing and a of 10,000-strong waiting list.

“It is crucial that we seek to take possession of any council properties that we have evidence to suggest are not being used as the tenant’s principal home,” Cllr Cryan said.

“In this instance, we had evidence-based concerns that the defendant was no longer living in her council property as her only or principal home. We issued a Notice to Quit to take possession.

“However, while the judge did accept that other people had indeed lived at the property, he did not agree with the council that the defendant had stopped using the property as her principal home and dismissed the claim.”

Mark Smulian

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