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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Broxfield Ltd v Sheffield City Council  EWHC 1946 (Admin) (24 July 2019)
Cite as:  EWHC 1946 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BROXFIELD LTD
|- and -
|SHEFFIELD CITY COUNCIL
Rowena Meager (instructed by Sheffield City Council Legal) for the Respondent
Hearing date: 2 July 2019
Crown Copyright ©
Mr Justice Mostyn:
"The High Court shall hear and determine the question arising on the case (or the case as amended) and shall—
(a) reverse, affirm or amend the determination in respect of which the case has been stated; or
(b) remit the matter to the magistrates' court, or the Crown Court, with the opinion of the High Court,
and may make such other order in relation to the matter (including as to costs) as it thinks fit."
"In my first statement I explained that although according to the publicly available documents from Companies House Busy Bodies appears to be effectively dormant, it is in fact operative. As mentioned above, I own a separate property company, Coda Properties Ltd which is a financially successful company (the last filed accounts for 2015 show a net worth of over £414,000). On successful property developments I have worked on, I have arranged a company loan from Coda Properties to meet the needs of Busy Bodies, and have repaid this by assigning rental income to Coda Properties and thereby repaying the loan. Therefore, even if Busy Bodies effectively has a nil balance sheet, it is able to access funds to meet its obligations through the arrangements with Coda Properties Ltd."
The accounts of Coda Properties Ltd to 31 December 2015 do not explicitly show any such loans or readily reveal from what source such loans might be made – at that date it had cash of only £37,111. Moreover, had such loans been made "to meet the needs of Busy Bodies" then the receipt and expenditure would have been reflected in the accounts of Busy Bodies; but no such activity is detailed. Nor is there any mention in the accounts of Busy Bodies of it having entered into a single lease, let alone two leases, on 18 December 2015.
"[Mr Brown] could not provide any explanation as [to] the inconsistency in the numbers shown on the bottom of each page of the first supplied document (which are the same on every page) and the second document (which has a different number on the page containing the 'term')".
"My findings were that the car park lease was not signed on 18 December 2015 and that I was unable to establish who signed it on behalf of Busy Bodies. It was unlikely to have been in existence prior to the council's application for a liability order as it would have been produced to the local authority before the litigation commenced."
This is a damning finding so far as the credibility and bona fides of the appellant is concerned.
"It means acts done or documents executed by the parties to the 'sham' which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create."
Diplock LJ went on to justify this definition by reference to "legal principle, morality and the authorities". His reference to morality clearly signifies that he intended the legal definition to correspond to the natural literal definition; he did not intend that the meaning in law should be a term of art.
"To say that a document or transaction is a "sham" means that while professing to be one thing, it is in fact something different. To say that a document or transaction is genuine, means that, in law, it is what it professes to be, and it does not mean anything more than that."
"Lord Nicholls' nuanced explanation [in Re H (Minors)(Sexual Abuse: Standard of Proof)  AC 563, 586D-H] left room for the nostrum, "the more serious the allegation, the more cogent the evidence needed to prove it", to take hold and be repeated time and time again in fact-finding hearings in care proceedings (see, for example, the argument of counsel for the local authority in Re U (A Child) (Department for Education and Skills intervening)  EWCA Civ 567,  Fam 134, at p 137. It is time for us to loosen its grip and give it its quietus."
And at :
"My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."
See also Lord Hoffmann at  to the same effect. The fact that an allegation is serious, or that its consequences, if proved, will be serious, is not a reason for subversively elevating the standard of proof from the simple balance of probability, nor for suggesting that the quality of the evidence, should such an allegation be made, needs to be better than if the seriousness of the allegation were less grave. The court has to consider on the admissible evidence whether the charge is more likely than not made out, no more no less.
"I have reviewed my summary of the evidence and my factual findings as set out in the original case stated and I have considered the issue of sham. If I am wrong in relation to the questions I have asked as to my findings in relation to the validity of the lease I find that the local authority have established, on the balance of probabilities that the document produced to the local authority was a sham."
"They may be summarised as requiring a conclusion either that there was no evidence to support a challenged finding of fact, or that the trial judge's finding was one that no reasonable judge could have reached."
i) Q: Was I entitled to conclude, on the evidence adduced, that there was no legal lease in existence?A: Yes, and this applies equally to the purported lease in respect of the car park.
ii) Q: Was I entitled to conclude that there was no equitable lease?A: Yes.
iii) Q: Was I entitled, on the evidence adduced, to find that Busy Bodies had neither an agreement for a lease; nor made payment of rent; nor gone into occupation of the property; nor had an immediate right to possession?A: Yes.
iv) Q: Was I entitled to find that there was no personal licence?A: Yes.
v) Q: Was I wrong to decline to exercise the court's inherent power to correct mistakes of construction and interpretation?A: No.
vi) Q: Was I entitled to find, on the evidence adduced, that the document was a sham?A: Yes.