Month: February 2020

Tenancy succession or Possession?

Recently I was in trial on a possession claim which, in essence, came down to the question of whether the second defendant had (statutorily) succeeded to his mother’s secure tenancy. Save for a public law argument concerning the sufficiency of the local authority’s pre-proceedings investigation into the succession claim there was little to distinguish this case from many others that frequently come before the courts.

However, I thought it might be of interest to put down in writing some brief reflections on the trial process, and the necessary issues of evidence inevitably facing the judge and parties in cases such as this. I have previously written on succession insofar as it concerned the enforceability of tenancy terms extending the statutory succession rights.

Returning to the claim in issue, the second defendant had the burden of showing he had lived at the relevant property at the time of his mother’s death as his only or principal home, and that he had resided with her throughout the period of 12 months immediately preceding that time: see section 87, Housing Act 1985 (and note restriction of section 160(6), Localism Act 2011 amendments to succession rights, as now found at section 86A of the 1985 Act, to 1 April 2012 and later tenancies) along with Governors of the Peabody Donation Fund v Grant (1983) 6 H.L.R. 41:

“The learned county court judge, rightly in my judgment, held that the burden was on the tenant to bring herself within the terms of that section. He further went on to hold that the tenant had to show two things: she had to show that this flat was her only or principal home at the time of Mr Charles Murphy’s death and that she was not only a member of Mr Charles Murphy’s family but had resided with him throughout the period of twelve months ending with the tenant’s death.” (Donaldson LJ at 44)

The question of succession is one of fact. The “Encyclopaedia of Housing Law” says at R-003:

“The question whether or not the would-be successor has been residing with the deceased is one of fact: Middleton v Bull (1951) 2 T.L.R. 1010, CA. Accordingly, where there is evidence which both supports and undermines the would-be successor, it will be difficult for the court to resolve the issue other than at trial, see e.g. Evans v Brent LBC, QBD, December 18, 2012, HousingView, January 7, 2013.”

The local authority evidence in the cases leading to this post largely centred upon the hearsay information obtained by the managing agents charged with the original investigation, and was presented ultimately, because of employee changes, by an officer not directly involved in the case. The second defendant on the other hand relied upon not only his own statement, but also that of one of his sisters and both attended trial to give oral evidence.

I would highlight the main issues arising from the trial, its preparation and outcome as follows:

  1. Electoral roll information, occupant details held by the landlord, and the benefit position of the deceased (e.g. non declaration of would-be successor living at the same property) are all potentially useful pieces of evidence but are rarely determinative on their own.
  2. Similarly, neighbour feedback, often hearsay, can be helpful to the central questions at issue but (usually) are simply part of a wider body of information to be assessed. For example, the fact that the would-be successor was often at the property or undertook significant caring responsibilities towards the tenant does not necessarily or of itself show the required quality of residence.
  3. Identifying accommodation where the would-be successor might have been residing contrary to their stated position is clearly helpful (though is not essential), and allows a positive case to be asserted by the landlord (e.g. evidence of ATM usage and the geographical location of the same as shown on bank statements).
  4. Inconsistencies both within the would-be successor’s own evidence and between their position and information provided by others is crucial not only as to their credibility but also to undermine, where appropriate, the stated position. To give two examples from the recent trial, (a) the sister said her brother had really pretty much always lived at their mother’s upon returning to London in 2000, whereas he said he had moved in to help care for her in around 2016/early 2017; and (b) his letter claiming succession had “nearly” crossed out before “a year” when describing how long he had lived with his mother, and his answer to the Judge’s question about this was not impressive (including referencing the fact he had been told he must have been there for at least a year).
  5. Evidence not sought or made available by or on behalf of the would-be successor, including the absence of certain (expected) witnesses, can be strongly indicative of a weak case. I have previously written specifically on this issue.
  6. There maybe some credibility and truth in the would-be successor’s case even if ultimately they do not succeed in defending the possession claim. For example, they may well have been providing care and support to their mother (tenant), and staying with her at times. But note in particular the authority of LB Islington v Freeman [2011] P.T.S.R. 1695 re quality of residence:

“28. The authorities also clearly establish that mere physical presence is not enough to amount to “residing with”. There must be to a significant degree an intention which can be characterised as making a home with the tenant – not just staying there.
29. Moreover – and this was not in dispute – the nature of the occupation must have the necessary qualities of “residing with” for the whole year before the death.”

It is frequently difficult to accurately predict the outcome of any trial in succession cases – the uncertainty as to how the judge will treat the evidence (or lack of) and as to how the would-be successor and their witnesses “come across” under cross examination being but two factors underlining such uncertainty.

As an example of the former, a few years ago I had one judge “brush aside” the fact that the would-be successor in fact claimed benefits from an address other than that of her supposed partner/co-habitant (i.e. the tenant) because he found that she simply didn’t bother changing her address when she moved in with her partner and that lots of people did the same.

In the case that has prompted this post, the judge conversely was exercised by the fact that the would-be successor used a different address for benefit purposes until a few months before his mother’s death when it was changed to hers, and did not accept his explanation for it not being changed earlier and at the very least noted the paucity of evidence with respect to the same.

These claims are not necessarily fraud cases – a possession order may not be made or the court may accept the factual version of events put forward by the would-be successor yet not find it sufficient to make positive findings on the only or principal home and/or residence questions. Given the frequent and genuine connection many defendants have with the deceased tenant’s home they are not the easiest of cases and tough decisions often have to be made.

What many claims show is that not only is the assessment of evidence, naturally, central to any final determination but the absence of evidence maybe of similar or greater import.

Housing Fraud on Social Media – December 2019 to February 2020

Assessment of witness evidence – recent authority

This blog has previously considered the issue of witness evidence. For example, on 8 August 2018 I looked at their credibility and probative value. In October 2019 the Court of Appeal, in Kogan v Martin & Ors [2019] EWCA Civ 1645, had reason to revisit certain jurisprudence concerning the assessment of witness evidence, and the trial judge’s treatment of the same.

The facts of the case are not relevant for the purposes of this article. More relevantly Lord Justice Floyd delivered the judgment of the court and stressed two important factors:

(1) Witness recollection has to be assessed in its proper context:

88. We think that there is real substance in this ground of appeal. We start by recalling that the judge read Leggatt J’s statements in Gestmin v Credit Suisse and Blue v Ashley as an “admonition” against placing any reliance at all on the recollections of witnesses. We consider that to have been a serious error in the present case for a number of reasons. First, as has very recently been noted by HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] 7 WLUK 57, Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.

(b) The nature of transactions will dictate the importance, likelihood or anticipation of documentary corroboration:

89. Secondly, the judge in the present case did not remark that the observations in Gestmin were expressly addressed to commercial cases. For a paradigm example of such a case, in which a careful examination of the abundant documentation ought to have been at the heart of an inquiry into commercial fraud, see Simetra Global Assets Ltd & Anor v Ikon Finance Ltd & Ors [2019] EWCA Civ 1413 and the apposite remarks of Males LJ at paras. 48-49. Here, by contrast, the two parties were private individuals living together for much of the relevant time. That fact made it inherently improbable that details of all their interactions over the creation of the screenplay would be fully recorded in documents. Ms Kogan’s case was that they were bouncing ideas off each other at speed, whereas Mr Martin regarded their interactions as his use of Ms Kogan as a sounding board. Which of these was, objectively, a correct description of their interaction was not likely to be resolved by documents alone, but was a fundamental issue which required to be resolved.

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HHJ Pearce referred to the cases above in his judgment of 8 January 2020 in Donovan & Anor v Grainmarket Asset Management Ltd [2020] EWHC 17 (Comm) and said:

“164. Each of the parties in this case attacks the evidence adduced by the opposing side on the grounds that the other’s witnesses, especially the leading players, are unreliable if not downright dishonest.

165. In considering the oral evidence in this case, including the significance and extent of any dishonesty and any attacks on the reliability of witnesses, I bear in mind the comments of Leggatt J (as he then was) in Gestmin v Credit Suisse [2013] EWHC 3560 at paragraphs 16 to 20 cited by him and expanded upon in paragraphs 66 to 70 of his judgment in Blue v Ashley [2017] EWHC 1928: “The best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”

166. This valuable expression of the need to be cautious about accepting witness evidence does not of course entirely discharge the judge from the duty of making an assessment of witnesses and their evidence (see HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] WLUK 57, cited with approval in Kogan v Martin [2019] EWCA Civ 1645). Even in a commercial case with the parties taking firmly entrenched positions, it is necessary to look with some care at the evidence of the main actors where that might provide valuable context and explanation.

167. It is a striking feature of this case, that in period when the business relationship between Mr Donovan and Mr Crader was breaking down in , they nevertheless remained on polite terms within emails and indeed seemed to show sympathy for the position of the other even if they did not accept it. That goodwill was also apparent during the witnesses’ oral evidence though it is singularly absent from their written statements. This might suggest that this court should not be too quick to find that the evidence of the witnesses has been adversely affected by the typical bad feeling that permeates commercial litigation. However, both sides made telling points about the reliability of the others’ witnesses that I bear in mind.”