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IN THE SUPREME COURT OF JUDICATURE B94/00022

COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE KRIKLER )

Royal Courts of Justice

Strand

London WC2

Monday, 23rd September 1995

B e f o r e :

LORD JUSTICE BUTLER-SLOSS

-and-

LORD JUSTICE ROCH

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CLIFFORD HART

- v -

THE LONDON BOROUGH OF BRENT

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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Telephone No: 071 831-3183

Fax No: 0171 831-8838

Official Shorthand Writers to the Court)

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The applicant appeared in person.

The respondent did not appear and was not represented.

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J U D G M E N T

( As Approved by the Court )

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Monday, 23rd September 1996

LORD JUSTICE BUTLER-SLOSS: This is an application for leave to appeal, which came to the Court of Appeal as late as Friday of last week, and has been heard by this Court as a matter of considerable urgency because the warrant, which was issued as long ago as 23rd February 1994, is to be executed tomorrow morning.

The applicant and his wife and child live in a flat owned by the London Borough of Brent, who are their landlords, in Willesden.

They took the premises in 1992, and it appears that the premises are in many ways unsuitable for the state of health of all three members of the family, particularly their young child, who has the misfortune to suffer from Sickle Cell Disease.

One cannot, of course, be other than extremely sympathetic to the parents of a child who suffers from a serious illness, but that cannot be the answer to the sort of situation which has occurred here, because, having taken the premises as recently as 1992, by 23rd February 1994, they were £5,706.24 in arrears on a rent of £62.95 a week.

The District Judge made a possession order suspended on the payment of the very small sum in addition to the current rent, of £5 a week.

By 26th January 1996 when the matter came back before the District Judge, the arrears by then were £7,067.21, and the warrant of possession had been issued.

The District Judge ordered that it should be suspended on payment of the current rent, together with £10 a week off the arrears, a small sum, bearing in mind the very considerable amount of money that was owed to the council.

By last week, when the warrant had again been issued, and at this stage the applicant went back to District Judge Steel, the arrears were something in the region of £8,500 on a rent of £88 a week.

On this occasion District Judge Steel said that enough is enough, and she refused to suspend the warrant.

On appeal to the Circuit Judge, Judge Krikler on 19th September dismissed the appeal from the District Judge.

On the afternoon before the warrant is to be executed, this is the last ditch stand of Mr Hart on behalf of his family to preserve the flat.

According to him, and, indeed, according to a medical report which is in the file, the flat is not suitable either for the child, himself or for his wife. He has, he says, sought to have the council rehouse him, and they have made promises to rehouse, which they have not complied with.

Consequently, he says, he has spent his own money on putting the flat into order, and that was why he was unable to pay the rent when he should have done so.

Of course he has had two generous chances to remain in this place, on payment of small sums off the arrears in addition to the current rent.

This third occasion, however, the reason for non-payment is a different one: it appears that his father was unfortunately very ill, that he moved to Manchester to be with his father, and he took his wife and child with him.

I ought perhaps to say that one of the points made in the papers is that it would be injurious for this child to be moved, but where needs must, she was moved to Manchester.

But the explanation given to us for the failure to pay any rent at all, so far as I can see, from the end of February to the beginning of September, is that the applicant relied upon a friend at work to pay the rent, together, no doubt with the arrears, and when he returned in September, several months later than he had intended, according to him, to return to the flat, he found that his friend had not paid any of the money. The friend was under an obligation to pay him money because he was responsible for extensive damage to his car and, therefore, he expected him to pay.

This is an explanation which I have to say, for my part, somewhat strains my credulity, but on the assumption -- and on the assumption in fairness to the applicant -- I should assume that it is true, it is astonishing that he should go to Manchester and take it for granted that his friend would pay the arrears, and make no effort whatever between February and September to find out if any money had been paid. He has been on unpaid leave from his firm during the whole of this period.

But facing reality, on a present rent of £88 a week, and arrears of £8,500, and with net earnings of something like £175 a week, the prospect of Mr Hart making the sort of payments to the council that he was saying to us he was proffering to them, that is to say paying off £110 a week, on the track record of Mr Hart, between 1992 and the present day, is, to say the least, improbable.

The council are perfectly entitled to get rent for the premises which they let. It is in the interests, both, no doubt, of the London Borough of Brent's long housing waiting list, together with the other people who live in the Borough, that people should pay their rent, and if, after a certain period they make no effort whatsoever to pay the rent, the time comes when the council is entitled to lose its patience.

District Judge Steel had been very long-suffering with this family, looking at what has happened since February of this year, when she gave a second opportunity to the applicant to pay off small sums of the arrears, and it is perfectly obvious that nothing substantial has been paid.

This Court only gives leave to appeal if there is an arguable case. Mr Hart has given us a number of explanations, and the one which, as I have already said one has to recognise is a sad one, the state of health of his daughter, but that cannot excuse such long term failure to pay a basic requirement, which is rent. This man is earning a living, and the rent is an absolute prior obligation to keep a roof over his head and that of his children.

I, for my part, can see absolutely no grounds for which this appeal would have the slightest prospect of success. If there are no grounds upon which the appeal might succeed, there is no purpose whatever in spending time or money in granting leave, because the outcome is obvious.

Consequently, I myself would refuse leave, and in those circumstances, the opportunity to stay the warrant of execution does not arise. I would, therefore, refuse leave and refuse a stay of the warrant of execution.

LORD JUSTICE ROCH: I agree.

ORDER: Application dismissed.

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