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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Merton v Richards [2005] EWCA Civ 639 (11 May 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/639.html Cite as: [2005] EWCA Civ 639 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(MR RECORDER LUBA QC)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE MAY
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LONDON BOROUGH OF MERTON | Claimant/Appellant | |
-v- | ||
SONIA JANE RICHARDS | Defendant/Respondent |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
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MISS TRACEY BLOOM (instructed by Messrs Pierce Glynn Solicitors, London SE1 1DB) appeared on behalf of the Respondent
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Crown Copyright ©
"The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by:
(a) the tenant, or
(b) a person acting at the tenant's instigation."
"In the light, not least, of that last admission of deliberate deception, I approached the assessment of the Defendant's evidence with very considerable caution. In the course of her evidence the Defendant displayed an extraordinary approach to what was proper and improper conduct in her role as a member of the Council's staff. She displayed no compunction whatever about her dealing, as a Council Officer, with her own personal details on the Council's computer system despite the obvious scope for abuse. She did not think her own mother was acting anything other than 'objectively' when approving payment of a decorating allowance to her for Aboyne Drive, despite (again) the evident scope for abuse. She did not take the opportunity she had had at interview in the police station to give her own account. The circumstances of her own visit (with mother, children and partner) to Lowestoft in Autumn 2000 to track down and see Mrs Mahon do her no credit. In short, if the Defendant's evidence had been the only evidence supporting her account of what occurred in the early stages of the mutual exchange transaction in early 1994, I would not have found it a wholly satisfactory basis on which to make findings as to where the truth lay."
"Her past conduct and her demeanour before me certainly bore that out. My impression of her was of a woman doggedly and determinedly content to meddle in her daughter's affairs as she (Mrs Cowper) thought best and without reference to her daughter where she considered that appropriate. That such conduct might involve deception of her daughter, deception of her employers, forgery or fraud or any other impropriety did not seem to matter, in my assessment of her evidence, if she was doing what she thought was best for her own daughter's interests."
"151. The first critical finding I must make is as to whether the Defendant actually knew from her mother that the transaction was effectively 'off' (after the second meeting between Mrs Cowper and Mrs Mahon and before the commencement of her own tenancy on 7 March 1994) but that she nevertheless participated in the remaining steps necessary to bring that transaction to fruition. Notwithstanding all the other reservations I have (and have earlier expressed) as to her evidence generally, I cannot confidently find that she did know. Indeed, having carefully assessed and re-assessed her evidence, it seems to me tolerably plain that had she known that Mrs Mahon had 'pulled out' she would not have participated in what would thereafter have been a manifestly fraudulent scheme to achieve the new home she desired for her family. There was simply too much at stake. She was giving up her 'lovely' (albeit overcrowded) home at Aboyne Drive in order to take up a new home at Oxford Avenue in need of very considerable work. Achievement of her new family home under a deception or fraud would render that achievement forever vulnerable to being overturned by discovery of her wrongdoing and would provide an uncertain basis on which to establish what was to be the new and long-term home for her still very young children. I cannot find that she was lying to me in her evidence that she did not know. That part of her evidence I do accept as truthful.
152. It follows that, on the evidence before me, I am not satisfied, even on the balance of probabilities, that the Council has established that by the completion of her tenancy agreement document for Oxford Drive and its subsequent submission to the Council, the Defendant herself knowingly made any 'false statement'. It is my assessment of her evidence that she throughout intended to move to Oxford Avenue if she properly could, and as her completion of that document represented. I am not satisfied that by the date it was completed and/or submitted, she knew that the premise on which her grant of a new tenancy was based - that Mrs Mahon would move to Aboyne Drive - was no longer true."
"161. I am fully alive to the need for caution in accepting the truthfulness of the evidence of either the Defendant or her mother but I am satisfied that, having regard in particular to the Defendant's evidence (in the context of the evidence in the case as a whole), Mrs Cowper's intervention in the mutual exchange process was but another instance of her uninvited intermeddling in her daughter's affairs. Mrs Cowper's meddling was a hallmark of her dealings with her daughter's tenancy matters."
"I do not accept, on the facts, the submission of Mr Beglan that the Defendant 'allowed' her mother to assume a pivotal role. There was no question of any 'allowing' or 'instigation' by the Defendant at all."
The judge accepted that part of Mrs Cowper's evidence in which she said that she had not told her daughter what had happened.
"159. In my judgment, however, this case is decided by its facts not upon nice questions of statutory construction. Even on a broad construction of the enlarged Ground 5, the Council must, in my judgment, show that Mrs Cowper's intervention in the mutual exchange transaction was at the 'instigation' of the Defendant as at the stage of the making of the false statements. I am not satisfied that the Council has been able to demonstrate that."
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation."
"The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by:
(a) the tenant, or
(b) a person acting at the tenant's instigation."
"Mrs Mahon the tenant at my new address will be moving to my address the same day ..."
"... must be made against the background of the substantial and sustained attack on her credibility that Mr Beglan quite properly puts forward as arising from the many detailed respects in which her previous conduct has been unsatisfactory and her evidence wanting. I need not recount his list. I have the matters he urged upon me orally and in writing most fully in mind. The assessment has been a difficult process - requiring careful reflection on the Defendant's demeanour and disposition in giving her live evidence before me taken together with the contents of her statement and the adverse inferences I have already drawn in respect of some of her evidence."
"The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by:
(a) the tenant, or
(b) a person acting at the tenant's instigation."
ORDER: Appeal dismissed with costs, to be the subject of a detailed assessment; and a public funding assessment.