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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Southend-On-Sea Borough Council v Armour [2014] EWCA Civ 231 (12 March 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/231.html Cite as: [2014] EWCA Civ 231 |
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ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE CRANSTON
QB20120183
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE McFARLANE
and
LORD JUSTICE LEWISON
____________________
SOUTHEND-ON-SEA BOROUGH COUNCIL |
Appellant |
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| - and - |
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ARMOUR![]() |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR JAN LUBA QC (instructed by Law, Hurst & Taylor, Westcliff-on-Sea) for the Respondent
Hearing date: 4 March 2014
____________________
Crown Copyright ©
Lord Justice Lewison:
The issue
The facts
Armour
became the weekly tenant of 35 Bewley Court, Whittingham Avenue in
Southend-on-Sea
with effect from 31 January 2011, although the tenancy agreement was signed on 25 January and he moved in on that day. The tenancy agreement informed him that:
"Your tenancy will begin as an introductory tenancy. It will become a secure tenancy after one year; unless you have broken the conditions of your introductory tenancy."
Armour
had a telephone conversation with a member of the contact team, the ostensible purpose of which was to rearrange an appointment to deal with a defective boiler. He was rude and aggressive on the phone, and alleged that the boiler was illegal. The team member was left feeling upset and personally responsible. On that same day Mr
Armour
was sent another letter saying that his abusive behaviour towards a member of staff was "totally unacceptable". The third incident took place a few weeks later on 31 March 2011. Electricians had arrived at Mr
Armour
's flat following the stripping out of the kitchen ready for electrical works to take place. They said that Mr
Armour
had been abusive to them. They also alleged that Mr
Armour
had turned on the electricity after they had turned it off in order to carry out the works, in consequence of which one of the workmen received an electric shock. The electricians also alleged that Mr
Armour
had sworn at them and been abusive.
Southend-on-Sea
BC as landlord served Mr
Armour
notice of possession proceedings alleging, by reference to these three incidents, that Mr
Armour
had been guilty of conduct causing or likely to cause nuisance or annoyance. The notice said that court proceedings would not be begun until after 2 May 2011; and in the meantime advised Mr
Armour
of his right to request a review of the decision. Mr
Armour
requested a review. He said that he had not turned on the electricity and that no one had received a shock. He also asked for a chance to explain the other alleged incidents.
"The panel found that while there may have been an element of doubt as to how the circuit the electricians were working on became live it was clear that the [tenant] abused the contractors sent to carry out works to the property.
Bearing in mind that [the tenant] had been warned only 3 [weeks] before the Panel found the abuse to be proven and therefore decided on Option 2: DISMISS the appeal."
council
began proceedings for possession on 7 June 2011. After various procedural delays the case came to trial before Ms Recorder Davies on 2 March 2012. That was nearly a year after the last of the three incidents, during which time there had been no further problem arising out of Mr
Armour
's behaviour. By an amendment to the pleadings, which the Recorder allowed at the beginning of the trial, Mr
Armour
raised a defence under article 8 of the European Convention on Human Rights and Fundamental Freedoms.
The Recorder's judgment
council
's decision to initiate proceedings for possession was a reasonable decision and that at the date when the proceedings were issued Mr
Armour
would have had no defence. She also held that but for the interlocutory delays the case should have been heard in July or August 2011.
council
towards its tenants, prospective tenants and the community it served against Mr
Armour
's personal circumstances.
i) Since the
council
's initial decision it had come to light that Mr
Armour
lacked capacity to conduct litigation. He had been diagnosed with depression and Asperger's syndrome, although his conduct could not be attributed to that.
ii) Although Ms Ward (who was Mr
Armour
's ex-partner) said that Mr
Armour
could not read or write, that was exaggerated, because he was able to send text messages, and responded very rapidly to the notice seeking possession.
iii) Mr
Armour
's daughter Elise was living with him. Although she might find difficulty in sharing a bedroom if she were to move back to her mother's home, that was not so important as to make the possession order disproportionate.
iv) What tipped the balance was that despite his mental health problems Mr
Armour
had kept to the terms of his tenancy for nearly a year. If a possession order were refused, his tenancy would become a secure tenancy. He would be at risk under that tenancy if there was any repetition of anti-social behaviour. His desire to keep his tenancy was supported by his probation officer, his community worker and members of his family. The anti-social behaviour had stopped as soon as Mr
Armour
had been served with the notice seeking possession.
council
appealed against that decision, but Cranston J dismissed their appeal. With the permission of Arden LJ they appeal for a second time. The principal ground of appeal is that the Recorder applied too generous a test to Mr
Armour
. There are additional grounds of appeal which raise new points that were not before the Recorder or the judge; and I will deal with those in due course.
council
; and Mr Jan Luba QC appeared for Mr
Armour
. At the conclusion of the hearing we announced our decision to dismiss the appeal, and said that we would put our reasons in writing. These are my reasons for joining in that decision.
Introductory tenancies
"Introductory tenancies are designed to help in the fight against antisocial behaviour by making it easier for landlords to evict those tenants who persistently engage in neighbour nuisance before they achieve security of tenure."
Proportionality
Borough
of Hounslow
v
Powell [2011] UKSC 8; [2011] 2 AC 186. A number of cases in this court and in the House of Lords and Supreme Court have laid down the principles that must be applied. A useful starting point is the judgment of Etherton LJ, reviewing much of the previous case-law, in Thurrock
Borough Council v
West [2012] EWCA HLR 5 Civ 1435. He formulated the following principles:
i) It is a defence to a claim by a local authority for possession of a defendant's home that the recovery of possession is not necessary in a democratic society within article 8(2), that is to say it would be disproportionate in all the circumstances. An order for possession in such a case would be an infringement of the defendant's right under article 8 to respect for his or her home and so unlawful within the Human Rights Act 1998 s. 6 (1).
ii) The test is whether the eviction is a proportionate means of achieving a legitimate aim.
iii) The threshold for establishing an arguable case that a local authority is acting disproportionately and so in breach of article 8 where re-possession would otherwise be lawful is a high one and will be met in only a small proportion of cases.
iv) The reasons why the threshold is so high lie in the public policy and public benefit inherent in the functions of the housing authority in dealing with its housing stock, a precious and limited public resource. Local authorities, like other social landlords, hold their housing stock for the benefit of the whole community and they are best equipped, certainly better equipped than the courts, to make management decisions about the way such stock should be administered.
v
) That is why the fact that a local authority has a legal right to possession, aside from article 8, and is to be assumed to be acting in accordance with its duties (in the absence of cogent evidence to the contrary), will be a strong factor in support of the proportionality of making an order for possession without the need for explanation or justification by the local authority.
vi) An article 8 defence on the grounds of lack of proportionality must be pleaded and sufficiently particularised to show that it reaches the high threshold of being seriously arguably.
vii) Unless there is some good reason not to do so, the court must at the earliest opportunity summarily consider whether the article 8 defence, as pleaded, and on the assumption that the pleaded facts relied upon are correct, reaches that threshold.
viii) Even where an article 8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances in which the defence could operate to give the defendant an unlimited and unconditional right to remain.
v
Pinnock [2010] UKSC 45; [2011] 2 AC 104 Lord Neuberger said at [74]:
"Where it is required in order to give effect to an occupier's article 8 Convention rights, the court's powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view."
The function of the appeal court
council
Mr Grundy submits that whether a given set of facts crosses the high threshold of giving rise to an article 8 defence is a question of law. There is no question of discretion involved. I agree that there is no question of discretion. But the test which the courts must apply, whether described as proportionality or as deciding whether eviction is "necessary in a democratic society" is not, in my judgment, a bright line test. It is more in the nature of a value judgment. If a judge is required to apply a clear legal rule to a given set of facts, an appeal court can decide for itself whether that given set of facts measure up to the legal rule. But "the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision": Re Grayan Building Services Ltd [1995] Ch 241, 254 per Hoffmann LJ. In my judgment, this is the kind of decision in which an appeal court should be reluctant to reverse the value judgment of the trial judge.
"That conclusion leaves open the standard which an appellate court should apply when determining whether the trial judge was entitled to reach his conclusion on proportionality, once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessments. In my view, an appellate court should not interfere with the trial judge's conclusion on proportionality in such a case, unless it decides that that conclusion was wrong."
Was the Recorder's conclusion open to her?
council
argued that events that post-dated the
council
's decision to take possession proceedings were irrelevant to the proportionality review. That position is no longer maintained before this court. Nor could it be in the light of the extracts from Pinnock and Powell that I have quoted.
council
now says is that compliance by the tenant with the terms of his tenancy cannot amount to the kind of exceptional circumstances that would justify a successful article 8 defence. Compliance with the terms of the tenancy ought to be regarded as the norm, not the exception. If Mr
Armour
's tenancy had been secure tenancy, then it is more than likely that the court would have made a suspended possession order against him. That would have had the effect that if there were to be a repeat of anti-social behaviour the
council
would have been able to enforce the possession order without having to start fresh proceedings. If, on the other hand, its current action is dismissed, then Mr
Armour
's tenancy will become a secure tenancy, with the consequence that if there were to be a repeat of anti-social behaviour the
council
would have to start fresh proceedings. In practical terms Mr
Armour
would be better off with the order that the Recorder made than he would have been if he had held a secure tenancy. That is the clearest possible demonstration that the Recorder's order has collapsed the distinction between an introductory tenancy and a secure tenancy.
Council v
Lloyd [2012] EWCA Civ 969; [2012] HLR 44. Before coming to the dictum on which he relies, it is necessary to give the context. Mr Lloyd had moved into a
council
house as a trespasser, following the death of his brother who had been the secure tenant. The
council
refused to grant him a tenancy, and began possession proceedings. Mr Lloyd raised a defence under article 8. The trial judge refused to make a possession order against him. His reasons were that (i) Mr Lloyd had had a history of depression which would worsen if he was evicted and made homeless; (ii) his financial circumstances and history of rent arrears at his previous accommodation would render it difficult for him to find other accommodation if he was evicted from the flat; (iii) much effort and some expenditure had been incurred by Mr Lloyd in setting up his own web design business, all of which would be wasted if he lost the place from which to work; (iv) there was confusion in the circumstances in which Mr Lloyd gave up his tenancy of his previous accommodation; and (
v
) this was not a case where the occupier of the property concerned, namely Mr Lloyd, had been guilty of nuisance, anti-social behaviour or criminal activity and he appeared to get on with his neighbours.
"Finally, there is the point that he has not caused a nuisance, or done anything criminal, and has got on with his neighbours. To my mind that is not a reason which begins to help him establish an Article 8 argument; all it does is to say that a factor undermining his Article 8 argument, such as existed in Pinnock, does not exist in his case."
"With all respect to the Recorder, it seems to me that even if Mr Lloyd had been a tenant whose tenancy had come to an end, and who, as an ex tenant, had no right to remain in occupation under domestic law, it does not seem to me that he would have had a strong enough case to justify the refusal of an order for possession."
Armour
is not an "ex-tenant" because his introductory tenancy is prolonged until the conclusion of the proceedings and any appeal. If a possession order is refused, then unlike the case of Mr Lloyd the tenant will not have an indefinite and uncontrolled right of occupation. On the contrary, as the Recorder appreciated, he will become a secure tenant on the same terms as the introductory tenancy. That will have the consequence that any further breach of the terms of the tenancy may result in an order for possession (either suspended or outright) being made against him.
v
Hall. Mr Hall became an introductory tenant under a tenancy granted by Leeds CC on 21 April 2008. He lived alone. Allegations were made of noise nuisance and anti-social behaviour by Mr Hall and by visitors to the property. The behaviour which was complained of was mainly of noise nuisance from loud music and television and the banging and slamming of doors. Mention was also made of shouting, screaming and arguing, banging on the communal door and ringing a neighbour's doorbell at night and in the early hours of the morning. It was also said that Mr Hall had engaged in threatening and intimidating behaviour and had been verbally abusive towards his neighbours. On 1 July 2008 a noise abatement notice was served on him. He did not appeal against that notice, and he appears to have disregarded it as complaints continued to be received. On 28 November 2008 Leeds CC served a notice of proceedings for possession on him under section 128 of the 1996 Act. A review was sought, and the notice was withdrawn following the review. Leeds CC continued nevertheless to receive allegations of noise nuisance and anti-social behaviour, so on 6 March 2009 it served a further notice of proceedings for possession on Mr Hall. He again requested a review, but this time the review hearing upheld the service of the notice. The Court of Appeal ([2010] EWCA Civ 336; [2011] 1 All ER 119) held that Mr Hall's case that the order was disproportionate was unarguable. The court said at [79] that:
" there is no basis for arguing that it is unlawful for a Local Authority to refuse to change its mind by reference to facts which simply seek to demonstrate that the behaviour of the occupier has now improved."
Armour
's is allowed to succeed, that is an incentive to delay proceedings. The cases stress that where an article 8 defence is raised it should be dealt with summarily in the first instance. I see the force of that point, but the time for summarily dealing with the defence is when it is raised on the pleadings. Once, as in our case, the judge has allowed the pleadings to be amended without objection in order to raise the defence, the judge is bound to consider the defence on its merits.
Fresh evidence: the principles
council
wishes to rely on fresh evidence which, they say, undermines the evidence that was given on Mr
Armour
's behalf at trial. In the case of a first appeal the appeal court will usually decide the question of admitting fresh evidence by reference to the well-known criteria in Ladd
v
Marshall [1954] 1 WLR 1489. Those criteria are:
i) The evidence could not have been obtained with reasonable diligence for use at the trial.
ii) The evidence would probably have had an important (though not necessarily decisive) influence on the result of the case.
iii) The evidence must be credible (though it need not be incontrovertible).
v
Owens [2010] EWCA Civ 224; [2010] 1 WLR 1489. That was a case of a first appeal, in which it was alleged that the claimant had fraudulently exaggerated his injuries at trial. The court noted that there were two lines of authority:
i) That derived from Ladd
v
Marshall which said that where fresh evidence is properly admitted and it appears to the court that it might, if admitted, have had an important effect on the trial, the right course is to send the case back for retrial.
ii) That derived from Jonesco
v
Beard [1930] AC 298 which said that where it is alleged that there was deceit in the court below, the proper course is to leave the aggrieved party to commence a new action, save where the Court of Appeal either determines the issue of fraud itself in effect where it is admitted or the evidence is incontrovertible.
"In my judgment, the true principle of law is derived from Jonescov
Beard and is that, where fresh evidence is adduced in the Court of Appeal tending to show that the judge at first instance was deliberately misled, the court will only allow the appeal and order a retrial where the fraud is either admitted or the evidence of it is incontrovertible. In any other case, the issue of fraud must be determined before the judgment of the court below can be set aside."
" Laddv
Marshall is inapplicable where the allegation is one of fraud allegedly perpetrated by the successful party. The appropriate remedy in such circumstances is for the defendant to take separate proceedings to have the judgment set aside for fraud. Save where the fresh evidence sought to be admitted is so probative of fraud that it would be futile to require the defendant to take separate proceedings, the court should never order a retrial without fraud being proved."
"Even if the appellate court can order a retrial in the context of a fraud action, it should only do so where it can be satisfied to the appropriate standard of proof that the fraud has been established, with the burden on he who alleges the fraud. Plainly it would be futile to require a party to incur the cost and the delay of fresh proceedings where the evidence is overwhelming and therefore incontestable, or where the alleged fraud is not contested. But where the issue is in doubt, separate proceedings in fraud should be pursued."
The evidence at trial
Armour
himself did not attend the trial or give oral evidence, but he made a witness statement that was before the court. In that statement he said that he lived at the property with his daughter. He dealt with the three incidents but denied that they had happened. He also said (twice) that he could not read or write.
Armour
's ex-partner Louise Ward attended the trial and gave evidence. Her witness statement was also before the court. She said that she and Mr
Armour
had had a volatile and at times violent relationship. She said that he had had a troubled life and had mental health problems. He had recently been diagnosed with Asperger's syndrome, although he did not like to think that he had any mental health problems. His condition made him withdrawn and short tempered. She also said that Mr
Armour
could not read or write. She said that there had been a great improvement in Mr
Armour
since he moved into the property. He had carried out works to his daughter's bedroom which turned it into her "dream bedroom" and he devoted his whole world to her. She discussed Mr
Armour
's many criminal convictions. She pointed out that there had been no complaints since the first three months of the tenancy, and that Mr
Armour
had lived peacefully in the property for almost a year.
Armour
's GP since September 2011. He said that Mr
Armour
suffered from severe depression and Asperger's syndrome; and that an eviction would be very detrimental to his mental health. He also completed an assessment of Mr
Armour
's capacity to conduct the proceedings and concluded that he lacked capacity in that respect. In that assessment he said in terms that he had assessed Mr
Armour
on 24 October 2011.
Armour
and Ms Ward, Mr
Armour
had been guilty of the anti-social conduct complained of (although there was doubt about whether he had turned on the electrical supply); and she did not consider that the position of his daughter was of significant weight. What was important in her view was that Mr
Armour
had complied with the terms of his tenancy for nearly a year, despite his mental health problems.
The fresh evidence
council
seeks to rely. The first consists of evidence from Ms Ward in which she says that she did not tell the truth in her previous evidence. In her statement of 16 January 2013 she says:
i) Mr
Armour
can read and write. She has seen him read correspondence, newspapers and letters. She has seen him complete crossword puzzles and he has left her notes of jobs to do.
ii) She says (although not in quite these bald terms) that Mr
Armour
was allocated the flat by the
council
because she falsely asserted that she had thrown him (and her daughter) out of the property which they had been sharing; and that she did this in order to enhance his chance of obtaining a
council
flat.
iii) Her daughter did not live with Mr
Armour
at the flat (contrary to what the Recorder had been told).
iv) She gave the instructions to Dr Marasco about Mr
Armour
's condition and thus enabled him to sign the various documents that he did; although he never in fact saw Mr
Armour
. Mr
Armour
's mental health problems had been grossly overstated, and it was unnecessary for him to have had a litigation friend to represent him in the proceedings.
v
) Mr
Armour
did in fact see a psychiatrist, called Dr Lars Davidsson.
vi) She is now aware that she lied in court but she did so in order to prevent Mr
Armour
from being evicted.
Armour
, which have been reported to the police.
Armour
, who was accompanied by Ms Ward.
Armour
on 15 November 2013 and prepared a report dated 18 November 2013. Dr Isaac said that it was difficult to make a robust substantive diagnosis of personality disorder based on one interview and a relatively patchy history. But he thought that a diagnosis of antisocial personality disorder was reasonable, probably carrying a psychiatric comorbidity with social anxiety, with obsessive compulsive disorder. He found no evidence that Mr
Armour
had a serious mental illness, or mood disorder. Although Mr
Armour
had episodes of low mood, they did not amount to clinical depression. As far as Asperger's syndrome was concerned, although he did not wish to be too quick to dismiss the diagnosis, Mr
Armour
did not give him the impression of someone with a neuro-developmental disorder.
Armour
had mental capacity to conduct the litigation, although he was a vulnerable person and special measures should be taken to ensure that he understood the proceedings.
Fresh evidence: discussion
Armour
obtained his tenancy through deception was not a ground raised in the
council
's notice of possession proceedings. Nor was it any part of the
council
's pleaded case. If the Recorder's order is upheld, with the consequence that Mr
Armour
becomes a secure tenant, an allegation that the tenancy was obtained by deception (if proved) is a ground for possession under ground 5 of Schedule 2 to the Housing Act 1985. The alleged fraud is not admitted; and the evidence of it is certainly not incontrovertible. I do not regard this evidence as material on this appeal.
Armour
's literacy is still uncertain. But the Recorder herself found that Ms Ward's evidence was exaggerated, and did not rely on any finding of illiteracy in reaching her conclusion. Ms Ward's current evidence is also contradicted by what she told Dr Davidsson following the trial before the Recorder. This part of the fresh evidence (if true) is also unlikely to have changed the result.
Armour
did not have capacity and diagnosed mental illness without even having seen him is a very serious allegation of professional misconduct. It has apparently not been put to Dr Marasco for his comments. It is also contradicted by the GP records which Dr Isaacs examined. I do not consider that in these circumstances any significant weight can be attributed to this part of the fresh evidence.
v
Marshall itself. He said:
"We have to apply those principles to the case where a witness comes and says: "I told a lie but nevertheless I now want to tell the truth." It seems to me that the fresh evidence of such a witness will not as a rule satisfy the third condition."
"TheCouncil
has been sceptical throughout that
Armour
lacks capacity."
council
was sceptical about that why did it not take steps to adduce psychiatric evidence of its own? In fact by an order dated 7 February 2012 DJ Dudley ordered that no further medical evidence should be adduced at trial. That order was not appealed. The report of Dr Isaac, on which the
council
now wishes to rely, was prepared more than 18 months after the trial. It was also prepared after the first appeal. Mr Grundy says that if that evidence had been before the Recorder then Mr
Armour
's failure to attend to give evidence would have been held against him. But that submission assumes that if his mental capacity had been in issue Mr
Armour
would still have chosen not to attend. That is pure speculation. Second he says that the Recorder could not have found that his good behaviour was "despite his mental capacity issues". It is true that a finding in precisely those terms would not have been made (assuming that the Recorder accepted Dr Isaac's opinion). However, Dr Isaacs did not give Mr
Armour
a clean bill of mental health. As his report says he thought that Mr
Armour
suffered from antisocial personality disorder, which would have entitled the Recorder to give him credit for having kept that disorder in check for the best part of a year.
Second appeals
v
Marshall criteria. But this is not a first appeal: it is a second appeal. Although we did not hear oral argument on this question, in his written material Mr Luba submitted that stricter criteria should apply to the admission of fresh evidence on a second appeal. The criterion for the grant of permission for a first appeal is that (a) the court considers that the appeal would have a real prospect of success or (b) there is some other compelling reason why the appeal should be heard: CPR Part 52 r. 3 (6). In the case of a second appeal to the Court of Appeal the criteria are stricter. They are (a) the appeal would raise an important point of principle or practice or (b) there is some other compelling reason for the Court of Appeal to hear it: CPR Part 52.13 (2). How does that impact on the Ladd
v
Marshall guidelines?
i) The Ladd
v
Marshall criteria are "the stuff of first-time-round appeals based on new evidence": see [19].
ii) The principle of finality yields so as to allow a first appeal on Ladd
v
Marshall grounds. But it will prevail so as to disallow a second appeal - a Taylor
v
Lawrence application - on such grounds: see [19].
iii) If the discovery of fresh evidence is ever to justify reopening a concluded appeal, the case must at least have this in common with the instances of corrupted process: the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claims of finality in litigation - especially pressing where what is contemplated is a second appeal. Finality is itself a function of justice, and one of great importance: see [21].
iv) It must at least be shown, not merely that the fresh evidence demonstrates a real possibility that an erroneous result was arrived at in the earlier proceedings (first instance or appellate), but that there exists a powerful probability that such a result has in fact been perpetrated: see [22].
v
) That test will generally be met where the process has been corrupted. It may be met where it is shown that a wrong result was earlier arrived at. It will not be met where it is shown only that a wrong result may have been arrived at: see [22].
v Redstone Mortages Ltd [2014] EWCA Civ 81. My judgment (with which Floyd LJ agreed) contains the following:
"29. That case was a case in which an appeal had already been decided by the Court of Appeal on appeal from the Family Division, so it is not quite on all fours with our case. But in the case of a first appeal, the applicant has only had one previous chance to adduce the evidence, namely at the original hearing. In the case of a second appeal, he has already had two chances, once at the original hearing and once again on the first appeal.
30. These features mean that in my judgment it is appropriate to adopt a more stringent approach to the admission of fresh evidence on a second appeal than would be adopted on a first appeal. That, I believe, is consistent with the second appeals test in CPR part 52.13, namely that there must be a compelling reason for this court to hear a second appeal if it does not raise an important point of principle or practice."
Result
Lord Justice McFarlane:
Lord Justice Sullivan: