Borough of Hammersmith and Fulham v Lemeh [2000] EWCA Civ 522 ()

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WEST LONDON COUNTY COURT
(His Honour Judge Cowell)

Royal Courts of Justice
Strand
London WC2
Monday, 3rd April 2000

B e f o r e :

LORD JUSTICE NOURSE and
MR JUSTICE HOLMAN

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THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HAMMERSMITH AND FULHAMClaimants/Appellants
-v-
FRANCIS LEMEHDefendant/Respondent

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Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited
180 Fleet Street London EC4A 2HG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________MR R BHOSE (instructed by the Solicitor to the London Borough of Hammersmith and Fulham) appeared on behalf of the Appellant Claimant.
MR D WATKINS9ON (instructed by Messrs Davis Hanson, London W14) appeared on behalf of the Respondent Defendant.

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HTML VERSION OF JUDGMENT
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    1. LORD JUSTICE NOURSE:It has been put to us that the outcome of this appeal might have a wide effect on other comparable cases. I do not see it in that way. It appears to me that this is a case which depends on its own facts and, moreover, on facts which are very special.
    2. The warrant of possession was due to be executed on 30th September 1999. On 29th September the defendant, Francis Lemeh, went to the court office. What then transpired can be taken from a file note signed by Miss Perera, a member of the court staff. It reads:

“Mr Lemeh came into West London County Court on 29th September, and placed his rent statement in front of me and said he was going to be evicted on 30th September. I asked him if he had a claim number and he said ‘no’. I then asked him how he found out about the eviction. He said that LBHF had told him. I then did a search on Caseman not knowing there were 3 actions against him. I found case WL800825 and saw there was no warrant. I then asked the Issue Section Manager if he knew about a case on Mr Lemeh. He said ‘no’. … Not knowing Mr Lemeh had more than one action I then told Mr Lemeh to contact LBHF to find out the claim number … He then went on his way.”

    1. What happened after that was that the defendant went off to the council offices, which he says were closed. No point on that has been taken by the council. The result was that the warrant was executed the next morning. The defendant then had no alternative but to apply to have the warrant set aside.
    2. It is well established by previous decisions of this court that, in order to have a warrant of possession set aside in this class of case after it has been executed, the tenant must establish one of three grounds: first, that the judgment on which the warrant was based has been, or is liable to be, set aside; second, that the warrant was obtained by fraud; third, that there has been an abuse of process or oppression in its execution; see Leicester City Council v Aldwinkle (1992) 24 HLR 40 and London Borough of Hammersmith and Fulham v Hill (1994) 27 HLR 368. It is accepted that the jurisdiction to stay or suspend the execution of the order for possession under section 85(2) of the Housing Act 1985 has gone once the warrant has been executed. Therefore, the tenant’s only remedy is to have the warrant set aside on one or other of the three grounds I have stated. If it is set aside, then the jurisdiction under section 85(2) is again available.
    3. When the matter came before District Judge Madge on the defendant’s application to set aside the warrant he said:

“I am satisfied that in this case it is right that I should set aside the execution of the warrant for two reasons. Firstly, although there is no criticism of the way in which the council behaved, I find that there was oppression in the execution of the warrant. I bear in mind the words of Wall J in [Hammersmith and Fulham London Borough Council v Hill [1995] 27 HLR 368] at page 374 where he refers to the contention that Ms Hill ‘was effectively deprived of the opportunity to apply to the court for a stay before the warrant was executed by the conversation which she had with the local authority’s housing officer’ as being the only issue that she was able to argue. Mr Lemeh was deprived of the opportunity to apply for suspension of the warrant because of his conversation with Ms Perera. Although neither the individual conduct of the council nor that of Ms Perera was oppressive, I am satisfied that the combination of circumstances did give rise to oppression. I do not consider that ‘oppression’ of the kind referred to by the Court of Appeal in Hill is limited to oppression by the landlord.”

    1. Later, he added:

“I am satisfied that in this case Mr Lemeh should be treated as having made the application on 29 September. He was at court, ready to fill out the application form. He would not have needed to pay any court fee because he is in receipt of income support and thus entitled to fees exemption.”

    1. Mr Bhose, who appears for the council, has submitted that the district judge’s conclusion that there was oppression in this case was not one which was open to him on the facts. There are really two questions here: first, whether oppression can include oppression caused not by the landlord but as a result of misleading information given by the court office; second, if so, whether the conclusion that there was oppression in this case was open to the district judge on the facts.
    2. In relation to the first question, Mr Bhose has told us that there is no reported case in which it has been actually decided (but see Islington London Borough Council v Harridge, The Times, 30th June 1993) that oppression can include oppression caused by misleading information given by the court office. In principle, I am unable to see why oppression of that kind should not be included. The way in which that ground is usually stated is “oppression in the execution of the warrant”. Once the warrant has been obtained, its execution is a matter between the court and the tenant. It is the officer of the court who executes the warrant and the landlord has no part in that process. Moreover, there seems to be no reason why oppression should be confined to oppressive conduct on the part of the landlord or some other person. It ought to include any state of affairs which is oppressive to the tenant.
    3. As to the second question, it may well be that another district judge would not have held that the facts of this case amounted to oppression. But that was not the question which the circuit judge, His Honour Judge Cowell, had to consider. It was the district judge who was the tribunal of fact and the appeal to Judge Cowell was a true appeal. Mr Bhose recognises that the district judge’s conclusion on oppression could only have been disturbed if it was one to which no reasonable tribunal of fact, properly directing itself as to the law, could have come.
    4. Although Judge Cowell doubted whether there had been oppression in this case, he affirmed the district judge’s decision. I think that he was right to do so. In my view the district judge was entitled to come to the conclusion to which he came on the facts of the case. It is entirely clear from Miss Perera’s note and the district judge’s findings that, if she had not unwittingly given him misleading information, the defendant would have made the application there and then. The defendant having gone to the office during court hours, we must assume that, for an urgent case such as this, a district judge would have been available to hear the application during the course of that day and in any event before the warrant was executed. That was the assumption made by District Judge Madge and he was entitled to conclude that the circumstances in which the defendant was unable to make the application were oppressive to him.
    5. I repeat my belief that the facts of this case are not likely to reoccur in any other. For my part I would dismiss this appeal on the simple ground that the district judge came to a conclusion to which he was entitled to come on the facts.
    6. MR JUSTICE HOLMAN:I agree.

ORDER: appeal dismissed with costs; legal aid assessment of the respondent defendant’s costs. 

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