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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Croydon v Axford [2013] EWCA Civ 215 (22 February 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/215.html Cite as: [2013] EWCA Civ 215

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
(HIS HONOUR JUDGE ELLIS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd February 2013

Lord Justice Lewison:

1. In 2007 Croydon Council granted Mr Axford a secure tenancy of 81 South Belgrave Road, London SE25. In December 2011 the council began proceedings against him seeking possession. The council relied on two statutory grounds under the Housing Act 1985. The first ground was that rent lawfully due from the tenant was not being paid or an obligation of the tenancy has been broken or not performed. That is referred to in the Act as ground 1.
2. The second ground on which the Council relied was that 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. That ground is referred to in the Act as ground 5.
3. In addition to proving these grounds the Landlord must also satisfy the court that it is reasonable to make an order for possession. In relation to some grounds on which possession may be sought there is an additional condition, namely that suitable alternative accommodation must be available for the tenant. That additional requirement does not apply to grounds 1 or 5 on which the claim in this case was based.
4. HHJ Ellis found that both these grounds were made out. He found that the rent was over £4,000 in arrears. Since the rent was just over £46 a week, that means that the best part of two years' rent was outstanding. Second, he found that when Mr Axford applied for the tenancy he did not reveal that he was the owner of a house in France and property in Wales. On the contrary, he told the council that he owned no other property. The judge found that that was a deliberate and untruthful representation: in other words a lie. Plainly the judge found that Mr Axford had knowingly made a false representation which induced the grant of the tenancy.
5. The judge then turned to consider whether it was reasonable to make an order for possession. He decided that it was; and duly made an order.
6. Mr Axford, as I understand it, did not give evidence at the trial because he had been debarred from giving evidence as a result of failure to comply with procedural orders of the court. Mr Axford tells me that he suffers from dyslexia and has problems in understanding the procedures which the court applies. But the court routinely makes orders imposing deadlines for the filing of witness statements and other matters. That is part of its duty to deal with cases expeditiously. The fact that Mr Axford was not permitted to give evidence as a result of failure to comply with court orders does not give rise to any arguable ground for appealing.
7. It also means that the judge was deciding the case essentially on the evidence presented by the council. Insofar as Mr Axford wishes to raise factual matters such as, for example, the allegation that his alternative property was uninhabitable, that is a matter which this court will not consider for the first time since it was not before the court below.
8. In his grounds of appeal Mr Axford takes as his first point that the order was made without the court having been satisfied that he had suitable alternative accommodation, but as I have said that additional requirement does not apply to grounds 1 or 5 on which the council relied. So that point is a hopeless point.
9. The second ground is that the court made a judgment on incorrect evidence. Mr Axford tells me that he was prosecuted by the council arising out of much the same matters. He stood trial at the crown court where he was acquitted on some counts but convicted on one other. There are two problems in Mr Axford's way in attempting to rely on the result in the crown court. The first is that in a criminal trial the prosecution is required to prove its case beyond a reasonable doubt. In a civil trial, on the other hand, the claimant is required to prove its case on the balance of probabilities. That is a much lower standard of proof. It follows, therefore, that there is no inconsistency between a criminal court deciding that it is not satisfied beyond reasonable doubt and a civil court finding that it is more likely than not that the claimant's case is correct.
10. Moreover the judge was entitled to find the facts on the basis of the evidence that was presented to him. In my judgment, therefore, the result of the crown court trial does not give rise to an arguable ground for appeal.
11. That applies both to the challenge made by Mr Axford to the judge's finding in relation to rent arrears and also to the judge's finding relating to the making of a false statement.
12. Once the judge had decided that Mr Axford had deliberately made an untruthful representation in order to induce the grant of the tenancy, it was almost inevitable that he would go on to find that it was reasonable to make an outright order for possession.
13. In my judgment, therefore, none of the grounds that Mr Axford puts forward will ground an appeal with a real prospect of success. For those reasons, therefore, I refuse permission to appeal.

Order: Application refused