Factual and Procedural Background
On 26 November 2001, Company A let the ground floor flat of 91 Spencer Place ("number 91") on an assured tenancy to the Tenant. A dispute arose over whether the tenancy included the cellar of number 91. The County Court judge determined that the cellar was not part of the tenancy and found that the Tenant was informed of this in June 2007. Despite this, the Tenant regained access to the cellar by sawing through the floorboards and subsequently altered locks to restrict landlord access. Although this was not a breach of the tenancy, it formed part of the context for the proceedings.
Other breaches found by the judge related to nuisance caused by dog fouling in the communal garden and unauthorised works, specifically the erection of a metal structure on the flat without permission. The Tenant repeatedly refused to remove this structure despite requests. The judge found the Tenant's behaviour demonstrated a disregard for the tenancy obligations and concluded that possession was reasonable.
The judge considered whether the possession order should be outright or suspended. It was accepted that if suspended, the order would require removal of the metal structure, repair of damage to the cellar floorboards, and immediate clearing of dog fouling. The Tenant did not indicate willingness to comply with such conditions at trial, though counsel asserted compliance on instructions.
Permission to appeal the possession order was initially refused, but later granted limited to the issue of whether suspension was reasonable in light of the Tenant's willingness to give undertakings regarding dog control, removal of the structure, and non-reentry to the cellar.
Legal Issues Presented
- Whether the possession order made by the County Court judge should be suspended rather than immediate, given the Tenant's offer to give undertakings to comply with tenancy obligations.
- Whether the court should admit and consider the Tenant's undertaking as fresh evidence on appeal.
- The appropriate exercise of discretion in granting or refusing suspension of a possession order in the context of persistent breaches of tenancy obligations.
Arguments of the Parties
Appellant's Arguments
- The Tenant offered a formal undertaking to comply with the tenancy obligations, including controlling dogs, removing the unauthorised structure, and not re-entering the cellar.
- The undertaking is a serious and enforceable promise, breach of which is punishable, and thus justifies suspending the possession order.
- The appeal should be allowed to replace the immediate possession order with a suspended order conditioned on the undertaking.
Respondent's Arguments
- The offer of an undertaking is not fresh evidence as the Tenant had the opportunity to give such an undertaking at trial but did not do so.
- The court's function on appeal is to review the trial judge's decision based on evidence and conduct at trial, not to allow a "second bite at the cherry."
- The trial judge's assessment of the Tenant's likelihood to comply with a suspended order was well-founded and within the proper range of discretion.
- Admission of the undertaking now would not meet the strict criteria for fresh evidence under established principles.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Sharab v Abdul-Aziz Al-Saud [2009] EWCA Civ 353 |
Principles governing admission of fresh evidence on appeal and the discretion to admit undertakings. |
The court applied the principle that new undertakings should be treated like fresh evidence and must meet strict criteria to be admitted; it found the Tenant had opportunity to offer undertakings at trial, so the criteria were not met. |
| Ladd v Marshall |
Criteria for admitting fresh evidence on appeal. |
The court held that the principles in Ladd v Marshall apply to admission of undertakings and that the Tenant failed to satisfy these criteria for new evidence. |
Court's Reasoning and Analysis
The court began by emphasizing its role on appeal: to assess whether the trial judge was wrong in law based on the evidence and conduct at trial, rather than reconsidering the case anew. The Tenant's offer of an undertaking was scrutinized and found not to constitute fresh evidence because the Tenant had the opportunity to make such an undertaking during trial but chose not to. The trial judge had carefully evaluated the Tenant's attitude and credibility, witnessed his refusal to comply with tenancy obligations, and concluded that suspension was not appropriate.
The court noted that the assessment of future compliance involves weighing past conduct and the reliability of promises, a task best left to the trial judge who had direct experience of the evidence and demeanor of the Tenant. The appellate court found no error in the trial judge’s discretion in refusing to suspend the possession order.
The court also considered the procedural fairness and the strict requirements for admitting fresh evidence or undertakings on appeal, referencing established case law. It concluded that the new undertaking was either not new or should have been presented at trial, and therefore was not a valid basis to overturn the possession order.
Holding and Implications
The court DISMISSED THE APPEAL.
The direct effect of this decision is that the possession order made by the County Court judge remains immediate and is not suspended. The Tenant must comply with the possession order without the benefit of suspension conditioned on undertakings. No new precedent was established; the decision reinforces the principle that appeals will not generally be allowed based on undertakings or evidence that could have been presented at trial, and that the trial judge’s discretion in possession matters is accorded significant deference.