TRIAL JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADDUCE LATE WITNESS STATEMENT

In Bromford Housing Association Ltd v Nightingale [2020] EWHC 2648 Mr Justice Cavangh upheld a decision not to allow a claimant in possession proceedings to adduce evidence late.  In a “rolled up” hearing he dismissed the claimant’s application for permission to appeal.

It is not sufficient that the appellate judge might have come to a different decision. The question is not whether I would have reached the same decision if I had been dealing with this question. Robust and fair case management decisions should be supported even if the appellate judge would not have decided it the same way. Rather, an appeal against a case management decision will only succeed if it “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree”

 

THE CASE

The claimant sought possession of premises occupied by the defendant. The hearing was due to take place in May, but adjourned because of the stay on possession proceedings.  The matter had first come before the court in February 2020 when it was adjourned due to insufficient time.  At that hearing the claimant made an application to rely on a witness statement, made that day, by a housing officer.

THE CLAIMANT’S APPLICATION

The claimant’s application was made under CPR 3.9 as an application for relief from sanctions.  It had been served at the hearing, after the deadline for the exchange of witness statements.

The trial judge refused the claimant’s application.

THE CLAIMANT’S ARGUMENTS

    1. As I have also already said, the Defendants applied to rely on the witness statement, and did so by means of an application for relief from sanctions, pursuant to CPR 3.9, on the basis that the deadline for serving evidence had passed.
    2. The submissions made by the Defendants to HHJ Hedley as to why the evidence should be admitted are essentially the same submissions are were made before me as to why the Judge erred in the exercise of his discretion.
    3. The Defendants submitted that the tests set out in Mitchell v News Group Newspapers [2013] EWCA Civ 1537 and Denton v T H White Ltd [2014] EWCA Civ 906 applied, and so that the court must decide whether there had been a breach of directions, and if so, must go on to consider three matters, (1) whether the breach was serious or significant, (2) whether there was good reason for it, and (3) if not, whether the court should nonetheless exercise its discretion in all the circumstances of the case to permit the evidence to be relied upon.
    4. It was not in dispute either before HHJ Hedley or before me that these were the right tests to apply.
    5. The Defendants accepted that there had been a breach of directions that had been made in the case, in that the Judge had ruled at a previous directions hearing on 16 September 2019 that the Claimant had until 3 February 2020 to file updating evidence and the Defendants had until 10 February 2020 to file evidence in reply. The evidence was, therefore, two weeks out of time. The directions were subject to the usual express and implied sanctions.
    6. As for the first part of the Denton test, The Defendants did not dispute that the breach was serious, in that it was a clear and direct breach of a court order.
    7. Again, as for the second part, the Defendants did not contend that there was a good reason for their failure to file this evidence prior to the deadline. In particular, the Claimant had complied with the deadline for service of its evidence, having served its justification exercise on 24 January 2020.
    8. The Defendants relied on issue (3), the Court’s residual discretion. Their submission was that, in all the circumstances of the case, the Judge should have exercised his discretion to permit the evidence to be relied upon, even though there was a serious breach and no good reason for the delay. The Defendants submitted that there were understandable reasons for the delay, even if they did not amount to a good reason.
    9. The Defendants said that there were two reasons for the delay.
    10. First, prior to the justification evidence received on 24 January 2020, the case was proceeding on the basis that the Claimant accepted that there was no prospect of the Defendants being rehoused by the local authority, and so this had not been a live issue until recently. At a meeting on 4 April 2019 between the local authority and the parties, the local authority had said: “Barbara” [i.e. Ms Ushewekunze] confirmed that they have been disqualified from the housing register due to being evicted for ASB they” [i.e. the Defendants] “will need to look at private renting”. However, the Claimant’s justification case, dated 23 Jan 2020 and served on 24 Jan 2020, had asserted that the local authority would support the Defendants to find alternative accommodation. This was one of the reasons why the Claimant decided to continue with the claim.
    11. Second, it was only on the attendance of Ms Ushewekunze at the Court on 24 February 2020 that the Defendants became aware that she had evidence that she could give to the Court.
    12. Moreover, and most importantly, the Defendants submit that Ms Ushewekunze’s evidence was important evidence and so should have been admitted pursuant to the Court’s discretion.
    13. As for the two points that were made in Ms Ushewekunze’s evidence, the first, at paragraph 2, was that it is the local authority’s position that if the Defendants are evicted for reason of anti-social behaviour they will be unable to join the housing register due to disqualification for at least 12 months and this means that they will not be eligible to be placed into social housing.
    14. The Defendants submit that this statement of position is relevant. It tends to show that the Claimant’s optimism in its justification case as to the Defendants’ prospects post-eviction is baseless, and that the justification exercise done by the Claimant is – at least on that point – unsupportable. The justification exercise had said that “The local authority will support the family in finding suitable accommodation.”
    15. The second important piece of evidence, according to the Defendants, was a statement in paragraph 3 that Ms Ushewekunze was aware that if the Defendants were evicted for reasons of antisocial behaviour they were not likely to be housed in the local private rental sector, since – irrespective of any other support the authority can give, e.g. by offering to pay a deposit – a landlord in that sector will ask the local authority to obtain a reference for the tenants from their landlord and without one a private landlord would be “very unlikely” to house the family.
    16. The Defendants submit that this statement of fact was relevant because it was new information and it shows that the impression given by the Claimant’s justification exercise to the effect that it was likely that alternative accommodation could be found for the Defendants was unsustainable.
    17. The Claimant opposed the application on the basis that the deadline for serving evidence had passed and that this was not an appropriate case for providing relief from sanctions. The Defendants could have investigated these matters before 10 February. The evidence was of very limited relevance. Moreover, the Defendant submitted that it did not have an opportunity to investigate the evidence and, if necessary to provide evidence in response.
The ruling of HHJ Hedley
  1. I have been provided with an approved transcript of the ruling of HHJ Hedley and I have read a transcript of the hearing.
  2. The Judge reminded himself that it was only at the time of the Claimant’s further justification exercise on 23 January 2020 that it became clear that part of the reason why the Claimant decided to continue with the possession proceedings was because the local authority would support the family in finding suitable accommodation. He noted that Ms Ushewekunze’s statement said that if the Defendants were evicted for anti-social behaviour, they would be intentionally homeless, under section 191 of the Housing Act 1996 and would be ineligible to join the Housing Register for at least 12 months and would not be eligible for social housing. The only other option would be private housing which would be unable to produce anything.
  3. As for the unavailability of private housing, the Judge said that this was almost so obvious as to require no witness evidence and so the real reason why the Defendants want Ms Ushewekunze to be called at the final hearing in May 2020 was to give evidence that the local authority would not rehouse the family.
  4. As for the first two parts of the Denton test, the Judge decided that there was a serious or significant breach of the order, and there was no good reason for it. As I have said, the Defendants do not challenge these parts of the Judge’s ruling. He said that this was evidence which could have been anticipated as being relevant as far back as October 2019, and it would have been perfectly possible for the Defendants, legal team to have enquired of the local authority at that point. He accepted however that the point was thrown into sharp focus by the justification exercise of 23 January 2020 and that it was not until Ms Ushewekunze attended court on 24 February 2020 that the Defendants appreciated what she might say.
  5. The Judge went on to consider the question of discretion. He took account of CPR Part 3, the overriding objective, and all of the circumstances of the case.
  6. He noted that the Claimant had submitted that the evidence came too late, that it was not entirely clear what issues would be engaged by it, and, if it was admitted, satellite issues would have to be dealt with. The Claimant pointed out that the local authority is subject to its statutory duty under the Housing Act 1996. The scope of its obligations are matters of law, not evidence. If this evidence were admitted, the Court would have to look at the nature of those statutory duties and whether the local authority has properly engaged with them. This would involve undertaking further enquiries with the local authority, and, possibly, further disclosure.
  7. The Judge accepted the Claimant’s submissions, saying that they were entirely justified. He accepted that if the statement had been served in time, those enquires would have had to be made. But, if the application is allowed, it is inevitable that the Claimant will have to investigate a satellite issue of whether a local authority intends to comply with its statutory duty. The unavailability of private tenancies goes without saying. Consideration of the duties of the local authority, which is not a party to these proceedings, would give rise potentially to all sorts of additional issues.
  8. For these reasons, the judge refused to grant relief from sanctions and refused to grant leave to the Defendants to rely upon the witness statement.

THE CLAIMANT’S UNSUCCESSFUL APPEAL (INDEED UNSUCCESSFUL APPLICATION FOR PERMISSION TO APPEAL)

The judge refused the claimant permission to appeal.

  1. The starting point is that a Judge has a wide discretion under CPR 3.9 to decide whether to grant relief from sanctions by admitting a witness statement which had been served outside the time limit for serving such statements. An appellate court will not overturn the decision of the Judge below unless his or her decision was wrong in the sense of being unsustainable or was unjust because of a serious procedural irregularity (see, eg Abrahams v Lenton [2003] EWHC 1104 (QB)).
  2. It is not sufficient that the appellate judge might have come to a different decision. The question is not whether I would have reached the same decision if I had been dealing with this question. Robust and fair case management decisions should be supported even if the appellate judge would not have decided it the same way. Rather, an appeal against a case management decision will only succeed if it “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree“: see Lewison LJ expressed it in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 , para 51
  3. In my judgment, there is no arguable ground for appeal in this case. The exercise of discretion by HHJ Hedley was not arguably wrong.
  4. There is no suggestion in the present case that the judge misdirected himself in relation to the legal test which applies to relief from sanction and which is set out in CPR 3.9 and in Denton v TH White. The Defendants, rightly, do not dispute that there was a serious and/or significant breach of the directions order, and they accept that there was no good reason for the breach. There was no reason why the two matters that are dealt with in Ms Ushewekunze’s statement could not have been dealt with in a witness statement which was served within the time limit provided for in the directions. It had been clear for a long time question of how far the Claimant had grounds for optimism as to whether the Defendants would be rehoused if they were evicted was a live issue in the case. As HHJ Hedley observed, the issued was thrown into sharp focus by the justification exercise of 23 January 2020. Even if the Defendants’ legal advisers had only been alerted at that stage to the importance of this issue, they still had two weeks to obtain evidence and to serve a witness statement in accordance with the directions. There are good reasons for enforcing compliance with the Court’s directions.
  5. In my judgment, the Judge was plainly entitled to conclude that, in all the circumstances of the case, he should not grant relief from sanctions, given the importance of enforcing compliance with the Court’s orders, and the disadvantages of admitting this additional evidence.
  6. The evidence in Ms Ushewekunze’s very short statement covered two issues.
  7. The first was that it was highly unlikely that the family would be given a place on the housing register if they were evicted for anti-social behaviour. In his oral argument, Mr Renton accepted that this was not significant new evidence. Ms Ushewekunze was simply repeating a statement of opinion that she had been recorded as having said at a meeting some months previously, on 4 October 2019. In any event, Ms Ushewekunze, as a housing officer (who is not a member of the local authority’s homelessness team), cannot bind the local authority in the exercise of its statutory functions. She cannot pre-judge whether the local authority will treat the Defendants as being intentionally homeless for the purposes of the Housing Act 1996, section 191. Still further, the short paragraph in Ms Ushewekunze’s witness statement plainly did not do justice to the complex web of obligations which will arise in relation to the local authority if the Defendants are evicted. It is clear from statute that, even if the Defendants are intentionally homeless, as they are in priority need (as they have dependent children) so the local authority will have duties to assess the family’s needs and to provide accommodation, at least temporarily, under sections 189A, 189B and/or190 of the Housing Act 1996, and to assist them in finding suitable accommodation. On the face of it, this is what the last sentence of the justification exercise was referring to. With respect to Ms Ushewekunze, her personal view about whether the local authority would treat the Defendants as being intentionally homeless is of no real relevance. Nor is her view about whether they would be placed on the housing register. As the Judge said in his judgment, what matters is the nature and the scope of the local authority’s statutory duties. It is not being alleged that the local authority will fail to comply with its statutory duties.
  8. In addition, the only person who is disabled, and who triggers the PSED, and who has rights under the Equality Act 2010,, is C, and, as he is a child, the children’s services authority has responsibilities to ensure that he is provided with accommodation if he would otherwise be homeless, under section 20 of the Children Act 1989. Once again, this is not a matter of evidence, but of statutory interpretation. It has not been addressed in paragraph 2 of Ms Ushewekunze’s statement.
  9. This leaves Ms Ushewekunze’s statement to the effect that it was very unlikely that the family would be accommodated in the local private rental sector. It does not appear to me that this is an issue in dispute in the case. As the Judge pointed out, although these are my words, it was blindingly obvious that a family that is evicted on the ground of the anti-social behaviour that has been alleged against the Defendants will struggle to obtain accommodation in the private sector. The Claimant has made clear that it does not disagree with this. There is simply no need for a witness statement to be admitted in order to deal with this issue. The fact that the Judge said it “almost” goes without saying does not mean that he was acknowledging that evidence was, in fact, required on this issue. It is clear, reading the judgment as a whole, that the Judge was saying that no evidence was required, because the point is self-evident.
  10. The statement at the end of the justification exercise to the effect that the Defendants have a vast amount of support and the local authority will support the family in finding suitable accommodation elsewhere which will keep any disruption to a minimum was not, expressly or implicitly, a statement that they would find it easy to obtain suitable accommodation in the private sector. The thrust of the justification exercise is to the effect that the harmful effects of the behaviour of members of the Defendants’ family on their neighbours, extending to damage to their mental health, is so great that there is no alternative but to evict them, even when C’s disability is taken into account, and even given the difficulties that eviction will cause for the family. There is no reason to think that there will be a dispute at the final hearing about whether it is likely that the Defendants will obtain alternative accommodation in the private rental market in the Towcester area.
  11. It follows that the judge was fully entitled to take the view that no real purpose would be served by the admission of Ms Ushewekunze’s statement into evidence, and that the alleged relevance of her observations did not outweigh the grounds for refusing relief from sanctions. It was irrelevant that, if the statement had been admitted, it would not have caused an issue with the time estimate of the final hearing. It is equally irrelevant that, as things have turned out, many months will have elapsed between the hearing on 24 February 2020 and the final possession hearing. The point is that the evidence which the Defendants sought to adduce was of no real significance.
  12. As for the submission that there is a compelling reason for granting leave to appeal because no previous appellate case has set out the test that applies to a claim for possession in a case in which a main protagonist who has been accused of anti—social behaviour is a child, I do not accept it. This appeal is about a case management decision. It is not about the appropriate test to apply in cases such as this. As I have already said, the central reason why there is no arguable ground for appealing against HHJ Hedley’s ruling is that the statement that the Defendants wish to rely upon simply does not contain anything of sufficient significance to justify its admission.