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Cite as: [2006] EWCA Civ 187

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Neutral Citation Number: [2006] EWCA Civ 187


Royal Courts of Justice
London, WC2
15 February 2006

B e f o r e :



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MR P GLEN (instructed by Messrs Robinson Jarvis and Rolf, 19-21 Quay Street, NEWPORT, PO30 5BA) appeared on behalf of the Appellant.
MS B HARRIS (instructed by Messrs Biscoes, 15a Somerset House, Hussar Court, WARTERLOOVILLE, PO7 7SG) appeared on behalf of the Respondent.


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  1. LORD JUSTICE JONATHAN PARKER: This is an appeal by Mr John Kerr, the defendant in the action, from an order made by Mr Recorder Crampin QC in the Newport (Isle of Wight) County Court on 22 August 2005, determining a preliminary issue in the action. The judge granted permission to appeal.
  2. Mr Kerr is the owner of a two-storey semi-detached house at No. 6, Upton Road, Ryde, on the Isle of Wight. The claimant in the action, Miss Raye Stephens, claims that she became a statutory tenant of the property on the death of her mother in 1987, and that that tenancy remains on foot. In the action she claims a declaration to that effect. She goes on to allege that Mr Kerr has breached his repairing obligations in relation to the property, and that he has breached the covenant for quiet enjoyment by wrongfully entering the property and relocating the boundary fence in a position which encroaches on the garden area of the property. She seeks an order for specific performance of Mr Kerr's repairing obligations, a mandatory order that Mr Kerr remove the fence and reinstate the garden area, and damages.
  3. It is common ground that by virtue of section 2(1)(a) of the Rent Act 1977, the statutory tenancy to which Miss Stephens became entitled on her mother's death could continue only for so long as she occupied the property "as [her] residence": in effect, as her home.
  4. By his Defence and Counterclaim Mr Kerr denies that Miss Stephens is a statutory tenant of the property. Although paragraph 3 of his Defence and Counterclaim denies that Miss Stephens has at any time been a statutory tenant of the property, it was common ground before the judge (as it is in this court) that Miss Stephens became a statutory tenant of the property on her mother's death. However, paragraph 4(b) of the Defence and Counterclaim pleads as follows:
  5. "Further or in the alternative, it is averred that any statutory tenancy survived only if and for so long as the Claimant occupied the Property as her residence. It is averred that the Claimant has not at all material times occupied the Property as her residence and accordingly it is denied that she now enjoys the benefit of the alleged tenancy or any tenancy thereof."

    Based upon that allegation, Mr Kerr counterclaims for possession of the property.

  6. By paragraph 2 of her reply, Miss Stephens pleads as follows:

  7. "Paragraph 4(b) of the Defence and … Counterclaim is denied. It is the Claimant's case that the Defendant told the Claimant that he intended to institute a series of works to improve and renovate the property and that in order for him to do so it was necessary and desirable for the Claimant to temporarily move out. In fact, the Claimant has returned daily to the property since that time notwithstanding that the vast majority of her furniture, chattels and contents have been removed or placed in store. Down to the date hereof the Defendant has failed to undertake any of the works of refurbishment he led the Claimant to believe would be undertaken."

  8. The issue as to whether on some date since 1987 Miss Stephens ceased to occupy the property "as her residence" was identified as a preliminary issue, and that issue was tried by the judge. In the result, he held that she had not. Accordingly, by the order now under appeal he dismissed Mr Kerr's counterclaim for possession.
  9. In determining the preliminary issue, the judge was faced with what Evershed MR in Beck v Scholz [1953] 1 QB 570 at 575 described as "a jury question to be determined by applying ordinary common sense". The statutory wording in that case was slightly different, but the description is nevertheless an entirely apt description of the preliminary issue in this case.
  10. The judge heard oral evidence from a number of witnesses, and he reviewed that evidence with care in his judgment.
  11. The following facts were either admitted or found by the judge based on the oral evidence which he had heard (references to paragraphs are to paragraphs in the judgment):
  12. In paragraph 62 of his judgment, the judge said this:

  13. "In my judgment, the correct answer to [the preliminary issue] which is, as the cases make clear, essentially a jury question or one of fact and degree –and in this case I consider it to be essentially one of degree – is that Miss Stephens has not ceased to occupy No. 6 as her home. It has been her home all her life. Although her new arrangements have reduced the importance of No. 6 to her as a place to resort to, her connection with it is still sufficiently great that she still occupies No. 6 as her home, or as her residence."

  14. In paragraph 69 of his judgment, the judge said this:

  15. "In my judgment, the degree of continuing connection that she [i.e. Miss Stephens] has had with No. 6 – through furniture, through physical and personal presence and through sleeping at No. 6 – means that she continues to occupy it as her home."

  16. In paragraph 108 of his judgment the judge commented that the most difficult aspect of the case was the evidence of the utility bills, but in paragraph 116 he said this:

  17. "Nevertheless, finely balanced as I think the issue is, I have come down, as I have indicated already, on the side of deciding that Miss Stephens has remained in occupation of No. 6 throughout that period, and I shall answer the preliminary issue accordingly."

  18. As noted earlier, the judge granted permission to appeal. In so doing, he said this:

  19. "I have found this an extremely difficult case. I think it would be right, if you are so minded, to take this case to the Court of Appeal, given the serious difficulties I have had in coming to a view about it."

  20. By his grounds of appeal, Mr Kerr contends firstly that the judge erred in law in concluding that Miss Stephens continues to occupy 6 Upton Road as her residence, given his findings that (among other things) she had been compelled to leave the property by the alleged activities of her neighbours; she had transferred domestic activities to 58 West Road and slept there four to five nights a week; and the utility bills demonstrated a negligible consumption of electricity and water. Secondly, he contends that the judge fell into error in rejecting the possibility that 58 West Street had become Miss Stephens' home "because that property was Mr Trueman's home and she was his guest and because of the eccentric living arrangements at that property". Thirdly, it is contended that the judge gave too much weight to the presence of Miss Stephens' furniture at No. 6. Fourthly, it is contended that the judge failed to give any or adequate weight to the facts set out in support of the first ground of appeal, and to the absence of ordinary domestic consumables at No. 6 and to the fact that Miss Stephens contributed to her keep and helped out with the shopping at 58 West Street.
  21. By a Respondent's Notice, Miss Stephens invites us to uphold the judge's order on additional grounds, viz. that Miss Stephens' intention as to the future was to increase the extent of her use and domestic activities at No. 6, as appears from her attempts to get repairs done and to resolve the dispute with Mr Kerr about the garden boundary, and that in any event those efforts are additional evidence of an enduring strong connection to No. 6 as Miss Stephens' home. Miss Stephens needs permission to file the Respondent's Notice out of time and on her behalf Ms Bethan Harris applies for such permission
  22. Mr Philip Glen (who appears for Mr Kerr) does not challenge the judge's findings of fact, but he submits that on such findings (taking them all together) the only possible conclusion is that Miss Stephens no longer occupies No. 6 as her home.
  23. Within the context of that broad and fundamental submission, Mr Glen points to what he submits are specific errors by the judge. In the first place, he submits that on the evidence the judge was bound to conclude that 58 West Street was Miss Stephens' home (as well as that of Mr Trueman). He submits that the judge has treated his finding (an inevitable one in the circumstances) that 58 West Street is Mr Trueman's home as precluding a finding that it is also Miss Stephens' home, and that a finding that it is also Miss Stephens' home must have coloured his approach to the crucial question whether Miss Stephens retains a home at 6 Upton Road.
  24. He also submits that the judge attached too much weight to the presence of Miss Stephens' furniture at No. 6, pointing at that, as Lord Evershed MR observed in Beck v Scholz at p.575/6:

  25. "The question posed and to be answered by ordinary commonsense standards, is whether the particular premises are in the personal occupation of the tenant as the tenant's 'home' …"

  26. Mr Glen further submits that merely visiting a property, however frequently, is not enough to make that property your home. He accepts as he must that sleeping at No. 6 two or three times a week is a factor to be taken into account, but he submits that that factor is neutralised by the fact that Miss Stephens spends most of her time at 58 West Street. He also relies on the fact that Miss Stephens takes her meals, takes baths and washes her clothes at 58 West Street. He reminds us that in evidence Miss Stephens described herself as having been driven out by her neighbours in about 1995. He also relies on photographic evidence showing the garden at No. 6 has been neglected and on the evidence of the utility bills.
  27. All in all, he submits, everything which an ordinary commonsense person would regard as the attributes of a home were present at 58 West Street and not at 6 Upton Road, with the sole exception of the fact that Miss Stephens sleeps at 6 Upton Road two or three nights a week.
  28. For Miss Stephens, Miss Harris (in her written skeleton argument) submits that the judge was fully entitled to make the findings of fact which he made, and, on the basis of those findings, to answer the preliminary issue as he did. If and in so far as it may be necessary for her to do so, (as I noted earlier) she seeks permission to rely on the additional grounds set out in the Respondent's Notice.
  29. I have no hesitation in rejecting Mr Glen's fundamental submission that on the findings which he made the judge was bound to reach the opposite conclusion.
  30. The judge rightly directed himself that the issue raised the question of fact or degree which required to be approached in a commonsense way. Adopting that approach, he then proceeded to address the issue carefully and conscientiously.
  31. As to his findings in relation to 58 West Street, he did not (as I read the judgment) treat his inevitable finding that 58 West Street is Mr Trueman's home as precluding a finding that it was also Miss Stephens' home. Rather, he went on to make a specific finding that Miss Stephens' status at 58 West Street was that of a guest. His finding that there was no sexual relationship between them seems to me to be highly significant in this respect.
  32. Nor did he treat the presence of Miss Stephens' furniture at No. 6 as being in any way determinative of the issue. It was one of many factors to be considered. The same goes for the other factors to which Mr Glen pointed.
  33. Nor does the mere fact that the judge found the exercise of assessing and balancing the various relevant factors a difficult one suffice to ground an appeal. Indeed, it seems to me that on an issue such as this it will only be in an exceptional case that this court should entertain an appeal against the decision of the judge.
  34. I conclude, therefore, that the contention that the judge was on his own findings bound to reach the opposite result (that is to say that his decision was perverse) is manifestly unsustainable. The findings which he made were fully open to him on the evidence, and their significance in the context of the preliminary issue was pre-eminently a matter for him. On those findings, it was plainly open to the judge to reach the decision he did. The possibility that another judge might have reached a different conclusion is nothing to the point.
  35. For my part, therefore, I can see no basis on which this court could interfere with the judge's decision on the preliminary issue.
  36. In the circumstances, it is unnecessary to consider Miss Harris' application to file the Respondent's Notice out of time.
  37. Finally, if I may respectfully say so, the only error which the judge made in this case, as I see it, was to grant permission to appeal.
  38. I would dismiss this appeal.
  39. LORD JUSTICE BUXTON: I agree. I also regret that the judge granted permission to appeal in this case. Where the issue is, as was agreed, a jury question to be determined by applying ordinary common sense, it is for the trial judge, who additionally has had the benefit of seeing and hearing live evidence (a benefit that this court does not have), to make his decision on the evidence that comes before him. In this case the judge considered the evidence with the greatest of care, and although he made it plain that he found the case a difficult one, he came in the end to a clear decision. When the trial judge has done that, it is not appropriate for parties to repair to this court in the hope of persuading this court, or at least the majority of it, to take a different view from the trial judge on what is essentially a question of fact and appreciation.
  40. Order: Appeal dismissed.

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