Sebastian Elgueta represented the respondent in The Mayor & Burgesses of the London Borough of Southwark v Ibidun (judgment 19 October 2017).
The London Borough of Southwark brought a claim for possession for ‘parting with possession’ (failure to comply with the tenant condition in s.81 of the Housing Act 1985) and subletting contrary to s.93 of the same act. At trial in Central London County Court in June 2017 HHJ Mitchell found against the defendant on a number of factual matters but, crucially, found that the defendant had not parted possession or surrendered exclusive possession. The Judge dismissed the claim for possession.
The local authority appealed, advancing six grounds. The local authority contended that trial judge had: found contrary to public policy; misdirected himself as to his discretion; misdirected himself in law by misapplying the principles in Islington LBC v Boyle  EWCA Civ 1450; failed to take into account relevant matters; assigned disproportionate weight to the respondent’s evidence at trial; and, had been misled by an incorrect answer which amounted to a serious irregularity.
Mrs Justice Moulder sitting in the Queen’s Bench Division of the High Court found that: the appellant had failed to identify the principles it asserted were engaged; the trial judge had not misdirected himself as to his discretion, the argument was simply a disagreement with the facts as found by the judge; the trial judge had applied and followed Islington v Boyle, but he had found there had been no ‘parting with possession’ and thus rightly did not go on to consider the second stage of that case; the judge did not have refer to all the evidence of what was an extensive trial in his judgement, and the particular evidence not referred to (credit reports) was not so substantial that the failure to refer to it was an error; the judge had assessed the Respondent’s credibility and there had been no error his assessment of the evidence; the incorrect answer was given in respect of a matter which would not have had an important influence on the trial. Her Ladyship found that a retrial would give the local authority ‘a second bite of the cherry’ and dismissed the appeal.