London Borough of Ealing v Richardson

Factual and Procedural Background

This case concerns an appeal against an order of a Circuit Judge in the Brentford County Court granting permission for a re-hearing of a prior decision by a District Judge suspending a warrant of possession of the Appellant's home, held under a secure tenancy from the Local Authority. The tenancy began in November 1990. Over the years, the Appellant accrued significant rent arrears, leading to multiple applications and suspensions of warrants of possession. By February 2005, arrears had exceeded £5,000. The District Judge had suspended the warrant on terms of payment of £588 immediately and ongoing payments of current rent plus £10 weekly towards arrears. The Local Authority appealed that suspension, seeking a re-hearing on the basis that relevant court files and orders were not before the District Judge at the February hearing. The Circuit Judge allowed the appeal and ordered a re-hearing. The present appeal challenges the correctness of the order for a re-hearing and the subsequent decision to issue the warrant of possession.

Legal Issues Presented

1. Whether the Circuit Judge was correct to order a re-hearing of the District Judge’s decision under CPR 52.11(1)(b), which permits re-hearings only in the interests of justice.
2. The proper exercise of discretion under section 85(2) of the Housing Act 1985 in deciding whether to suspend a warrant of possession where substantial rent arrears exist.
3. The standards and limitations applicable to appeals by way of review versus appeals by way of re-hearing.

Arguments of the Parties

Local Authority's Arguments

• The District Judge’s decision to suspend the warrant was unjust due to persistent non-payment and multiple prior suspensions.
• The court file and relevant court orders were not before the District Judge, constituting a procedural deficiency justifying a re-hearing.
• The Local Authority contended that had the full documentation been available, the suspension would have been refused and possession ordered.
• They argued the interests of justice required a re-hearing as per CPR 52.11(1)(b).

Appellant's Arguments

• The Appellant’s counsel did not object in principle to a re-hearing but noted limited evidence had been prepared to address the full history and reasons for arrears.
• It was submitted that the court should consider the Appellant’s explanation for defaults and her efforts to comply, including engagement with debt advice and attempts to regularise payments.
• The Appellant relied on a witness statement explaining employment difficulties, confusion over housing benefits, and ongoing efforts to meet payment obligations.
• The Appellant’s counsel implied that the procedural failure regarding the court file did not justify a re-hearing as the Appellant had not sought an adjournment or otherwise objected at the initial hearing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
re G v G [1985] AC 647	Definition of the "generous ambit" within which appellate disagreement over discretionary decisions is possible.	Used to explain the limited scope of appellate review of discretionary decisions under section 85 of the Housing Act 1985.
Tanfern Limited v Cameron-McDonald [2002] 2 All ER 801	Every appeal is limited to a review of the lower court’s decision unless interests of justice require a re-hearing.	Supported the principle that re-hearings are exceptional and must be justified by unusual circumstances.
Audergon v La Baguette Limited [2002] EWCA Civ 10	It is undesirable to formulate strict criteria for re-hearings; the decision depends on the particular circumstances.	Reinforced the flexible, case-specific nature of the interests of justice test under CPR 52.11(1)(b).

Court's Reasoning and Analysis

The court analysed the procedural and substantive context of the appeal, focusing on the proper application of CPR 52.11(1)(b) regarding re-hearings. It emphasised that re-hearings are exceptions to the general rule that appeals are by way of review. The court noted that the Local Authority did not protest the absence of the court file at the initial hearing nor seek to remedy the deficiency, undermining their claim of procedural injustice. The Circuit Judge’s initial skepticism about the justification for a re-hearing was noted, as was his conclusion that the Local Authority’s failure to present a proper bundle was a fault on their part. The court found it unclear what specific injustice justified the re-hearing, highlighting that mere failure to present evidence at the first hearing does not ordinarily warrant a re-hearing absent permission to adduce fresh evidence.

On the merits, the court recognised the District Judge’s discretion under section 85(2) of the Housing Act 1985 to suspend possession orders, which must be exercised in light of the individual circumstances. The court criticised the Circuit Judge for applying a rigid "bright-line" test based on the arrears amount rather than a holistic assessment including the Appellant’s efforts and prospects for compliance. The court also observed that the Circuit Judge failed to consider the Appellant’s witness statement explaining her difficulties and attempts to regularise payments.

Ultimately, the court held that the Circuit Judge erred in ordering a re-hearing without sufficient grounds under CPR 52.11(1)(b) and that the District Judge’s decision to suspend the warrant was within the proper discretionary bounds. The appeal was therefore allowed, restoring the District Judge’s order.

Holding and Implications

The court ALLOWED THE APPEAL and restored the District Judge’s order suspending the warrant of possession on the specified payment terms.

The direct effect is that the suspension of the warrant remains in place, allowing the Appellant to maintain occupancy subject to compliance with payment conditions. The decision clarifies that re-hearings under CPR 52.11(1)(b) are exceptional and require clear justification beyond procedural failings that were not timely addressed. No new precedent was established beyond reaffirming established principles regarding appeals and the exercise of discretion under the Housing Act 1985.