London Borough of Ealing v Richardson [2005] EWCA Civ 1798

Case No B2/2005/1406

[2005] EWCA Civ 1798

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BRENTFORD COUNTY COURT

(HHJ OPPENHEIMER)

Venue Royal Courts of Justice

Date Tuesday, 22 November 2005

Strand

London, WC2

B E F O R E:

LORD JUSTICE WARD

LADY JUSTICE ARDEN

Between

LONDON BOROUGH OF EALINGRespondent

-v-

Between

DIANE RICHARDSONAppellant

(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR ANDREW GUMBIT ZIMUTO (instructed by Law for All) appeared on behalf of the Appellant

MR JONATHAN EASTON (instructed by LB Ealing, Legal Services) appeared for Respondent

J U D G M E N T

LORD JUSTICE WARD:

This

[1]is, I would like to think, a case which is unusual and somewhat unique. I would like to think that the problems which beset the courts below do not ordinarily arise. It comes to us as an appeal against the order of HHJ Oppenheimer, sitting in the Brentford County Court on 17 June of this year, when he gave permission for an appeal against the earlier order of District Judge Allen made on 10 February, suspending a warrant of possession of the appellant's home, held on a secure tenancy from the Local Authority, on terms that she pay £588 that day, and thereafter the current rent plus £10 a week off the arrears.

[2]Judge Oppenheimer then ordered that the appeal before him proceed not by review but by way of re-hearing, and having done so, he allowed the appeal and ordered that the warrant of possession be issued. It is, therefore, a second appeal for which permission was given by Tuckey LJ for the reason that, arguably, there was an important point of procedure at stake.

(b) , whether:

"the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing."

The ordinary rule expressed in CPR 52.11(1) is that every appeal will be limited to a review of the decision of the lower court, and it is plain, therefore, that re-hearings are the exception to the rule and are to be undertaken only where the interests of justice so require.

[3]The history of this matter goes back a long way. Ms Richardson is the single parent mother of four children, two of whom are now adult but still living at home. One is receiving further education; the other applying for job seeker's allowances. There is also a teenager and one 11-year old. She became the secure tenant of this property in Perivale by virtue of a tenancy granted to her in November 1990. After nearly five years of that tenancy, she was in arrears to the extent of some £2,792, or thereabouts, and a claim was made for possession. The order was granted on 5 January 1996, by which time the arrears had been reduced to £2,086-odd and the order of the court was that possession be suspended provided the rent plus £5 a week was paid to discharge the arrears.

[4]There is a lamentable history of failure to pay, with the result that, before the matters which come to our attention, eight applications had been made for orders to execute the warrant of possession, and eight applications had been successfully made by the tenant to suspend that execution. This was the ninth application made by the tenant to suspend the warrant of execution, which had been ordered by the court in September 2003, at which time the arrears were £2,196. For reasons that are not explained to us, Ms Richardson did not apply to suspend until a year later on 27 September 2004. By then the arrears had grown to £4,800.

[5]The court adjourned the matter on its first appearance before the court, and it came for hearing before the District Judge on 10 February 2005. By then the arrears had crept over £5,000. That application was made by Ms Richardson in person. The Local Authority was represented by their solicitor. We have a transcript of what transpired before the District Judge, and it is necessary to recite some of the salient features of that hearing.

[6]The judge was told that the arrears were over £5,000, having increased from the £2,000 at the time the order was made. The District Judge asked:

"Have you got a copy of the recent rent account? MS BRAM: Yes I have. That is from 2001."

[7]There was then discussion about a sum of £588, which the tenant was offering to pay. This was apparently the shortfall since the order made, it is said, in October. Again, it is not a matter that is totally clear to me. The tenant explained to the District Judge that she had received advice from what she called the debt solicitor. She explained that she was in employment, and explained:

"Now my money's been sorted out I'll be able to pay. I think Mrs Birch [an official in the housing office] said it was £277, it works out to be £277 a month."

[8]The District Judge, in discussion with the solicitor, accepted that the offer amounted to an offer to pay £10 a week off the arrears. Ms Richardson explained her difficulties with the Child Support Agency's inability to extract maintenance from the father of her children. The District Judge was sympathetic. But she said this at page 43:

"I realise you have been back repeatedly. You are just about at the doors of 'Last Chance Saloon' as they say... I take on board that you are now getting help. Do not stop there, just get on top of it with help ... I will give you another chance, but it cannot go on like this. I am going to suspend the warrant on payment of £588 by 4 o'clock today... That means as long as you get to a Post Office that counts as payment. As long as you have got a receipt showing that you have already paid it today ... All right? And thereafter I am going to say current rent and £10 a week."

[9]There was further discussion, and

the judge added these comments:

"It is more important to make regular payments than anything else. It is not likely to carry on being suspended. You will find yourself in bed and breakfast accommodation with the children unless you make sure that this has priority over absolutely everything else... There is no reason, really, why Ealing Homes and the rest of society should have to pay your rent over and above the Housing Benefit. I have taken into account you are on Housing Benefit and reduced the weekly payments to that (inaudible) suggest you can afford. That has now been paid... I cannot say that the warrant would necessarily be suspended again if you (inaudible) arrears... ... but you have the chance now to get it sorted, with help, and if you are receiving debt counselling and getting some help, hopefully you can get on top of it."

[10]It was the Local Authority that appealed that order. By their notice of appeal, they set out in the grounds their submission that the decision of the lower court on 10 February was unjust in the circumstances. They referred to the persistent failure to comply and the nine previous applications to suspend the warrant of eviction. They stated that a chronology was set out below, as indeed it was, and added that:

"Full details will be set out in the appellant's witness statement which will be submitted shortly. In the particular circumstances, the appellant seeks leave to appeal and requests that the court exercises its discretion in accordance with Part 52.11(1)(b) of the Civil Procedure Rules to hold a re-hearing of the respondent's application of 10 February 2005 to suspend the warrant."

[11]There was technically no proper application to admit fresh evidence, as probably there ought to have been. But a witness statement was indeed prepared and served, dated 16 March, from the team leader in the rent office, a Ms Cnudde. She said out a chronology of the court proceedings -- each and every one of them -- detailing the arrears and detailing from time to time substantial lump sums that were paid. I note by way of example: £2,500 in October 1997; £2,663 in 1999, being back-dated benefit; a further large payment of back-dated housing benefit in January 2001. She acknowledged that there were delays in the payment of housing benefit, which the Local Housing Department accepted and regretted, but pointed out that there were many periods when simply nothing at all was paid by the tenant. She attached to her witness statement copies of the relevant orders and applications, and the rent count going back certainly since 1995.

[12]The case came before HHJ Oppenheimer. We have a transcript of that hearing. He dealt with permission to appeal and Mr Zimuto of counsel, then instructed as he is today for the tenant, agreed that it was at least arguable, and so permission to appeal was granted.

[13]Mrs Ashley, who then appeared for the Local Authority, submitted that it was in the interests of justice to have a re-hearing. The judge asked why?: MRS ASHLEY: The main reason for that is that the court file was not available before the judge at the hearing in February. JUDGE OPPENHEIMER: Why not? MRS ASHLEY: I do not know, your Honour. JUDGE OPPENHEIMER: That would not be a very good reason for a re-hearing, I am afraid. I will review the decision of the District Judge in the court below. MRS ASHLEY: Right. We were only submitting that not all the details would have been before her, there were not court orders there." The judge then asked why an appeal and not a re-application. He was taken through the transcript of the proceedings before the District Judge. Mrs Ashley told him that the District Judge had sight of the rent accounts. She took that into account. She knew the size of the arrears, which were then over £5,000. She knew that there had been nine previous applications. But, said Mrs Ashley:

"What she did not have was the file and she did not have details of the court orders either. The court orders were relevant because obviously they stipulated the amount of the payments that the defendant was required to make and the fact that she had actually breached those. JUDGE OPPENHEIMER: So no evidence of breaches before the District Judge? MRS ASHLEY: No. What the judge had to rely on was the rent account, but she did not have all the court orders before her. JUDGE OPPENHEIMER: If she had, is it your contention that she would have said that the application was to be dismissed? MRS ASHLEY: Yes, your Honour, because the court orders gave details of how much the defendant was expected to pay in any event. JUDGE OPPENHEIMER. I see. So if this were treated as a re-hearing the reason that the appeal has to take place is because of the Borough's default. Is that right? MRS ASHLEY: Yes. We believe, your Honour, the decision would have been different, the defendant would have had her application dismissed and there would have been an order for possession. JUDGE OPPENHEIMER: Had you your file at court? MRS ASHLEY: Yes. [Had] the file been there we could have gone through -- "

[14]The judge then invited the Local Authority to consider whether they would be prepared to pay the costs of the appeal, which was only necessary by virtue of their default. Mrs Ashley was prepared to take instructions, but submitted that it was not the Council that had lost the file; it was the court that did not have the papers in front of them. Judge Oppenheimer's reaction to that was characteristically terse:

"That is about as bad a submission as I think I have ever heard. It is your duty to prepare a bundle for the hearing."

[15]In the event, Mrs Ashley indicated a willingness to pay costs thrown away.

The judge then turned to Mr Zimuto and said:

"Let me ask Mr Zimuto whether you agree or oppose the proposition that this appeal should be by way of re-hearing? MR ZIMUTO: I do not have any objection to that in principle, save for this; this appeal was prepared on the basis that it would, in the first instance, be an application for permission, and then an appeal following in the usual way with a review of the decision of the Judge below. What has not happened, which may affect the outcome, is that there has been very limited attempt to adduce evidence to present before the court as to the merits of the substantive position in terms of an application to suspend or not ... as the case may be. So there is a limitation on the evidence that is available. There are, I suppose, in very simple terms, propositions we would want to put forward as to why it would be just to maintain the order that was made by the judge. JUDGE OPPENHEIMER: What evidence would you have other than the record as to the orders of the court and your client's compliance. That is a matter of record. MR ZIMUTO: Those are the two most important pieces of evidence which are readily available. There is one other factor which the court may, or may not, want to address and I think it is only addressed in very limited terms which is as to why there is such an appalling apparent record of default in the past because it is a factor which the court may be influenced by in determining whether or not it is appropriate to suspend again. That has not been dealt with to any significant degree although there is a witness statement in the appeal bundle."

That written statement apparently was a reference to a one and a half page statement by Ms Richardson, to which I will refer again.

[16]The judge, however, appears to have continued the argument without looking at that actual affidavit, or witness statement, and Mr Zimuto had to confront his point that, as

the judge put it:

"... once you hit £5,000, I would say once you hit around £2,000 actually, the Borough barely has to explain anything. It merely points to the figure and if there is an application to suspend then any appellate court will look with suspicion on any order made in the court below allowing suspension of the warrant. MR ZIMUTO: My point, your Honour, really is coming from the perspective of the defendant respondents of the appeal trying to put forward an explanation in real terms in respect of previous defaults because that is a factor which the court will [have] to have in mind. It is not a matter which has been specifically addressed for the purposes of this hearing, if I can deal with it in that way. That is my only objection to it, otherwise this court could not sensibly consider the matter without attempting to look at matters in the holistic way of thinking in relation to [and then unfortunately the tape was inaudible]. JUDGE OPPENHEIMER: I am afraid you are right. I will look at the evidence in question."

Then he turned to Mrs Ashley again and asked her whether she could show him the court orders. She said she could. He said:

"Are you able to demonstrate the breaches? MRS ASHLEY: Yes, by way of the rent accounts. We have them going back to 1991, so we would argue that speaks for itself. It is all there. The court orders are there. JUDGE OPPENHEIMER: I think on that basis I will hear the appeal on the basis of a re-hearing and if your evidence lacks then so be it, you will lose. If, on the only hand, it does not, then you will succeed subject of course to what I have said in relation to what I think Mr Zimuto very accurately calls the holistic approach. So the order is that this appeal should proceed by way of re-hearing."

[17]So that was the exchange that took place. In his actual judgment, he dealt with the question in this way:

"The District Judge on 10 February, through the default of the Local Authority, did not have the relevant papers before her properly to decide the matter. The court file was apparently not then before the court, but, as I indicated earlier, it was the duty of the Borough to see to it that the relevant history was before the court in proper form. It is not the duty of the District Judge to scrabble about within the court file to attempt to define or distil that history. That is especially so in these days where there are difficulties with staff in the County Courts in London and with the proper keeping of the court files. As has been said in another context, court files are intended to be the only complete record of the proceedings but alas they do not always appear in proper order. The position today is that the Borough have made good their default by first of all producing the statement of Ms Cnudde, setting out the history of the breaches and proceedings since the possession order was made and producing a complete rent account up to date. They asked this court that the appeal proceed therefore, by way of re-hearing, and I indicated that I would order the appeal to proceed by way of re-hearing, and therefore this is a fresh consideration of the application to suspend the warrant."

[18]The first ground of appeal before us is that the judge was wrong to order a re-hearing. Mr Easton, who today appears for the Local Authority, says that the only justification in the interests of justice for a re-hearing was, as submitted to Judge Oppenheimer, the fact that the court file was missing. If that was the only basis for the perceived injustice, then it seems to me there are a number of difficulties which the Local Authority have to face. The first is that they made no protest about the fact that the court file was not before the District Judge as would have been expected. They did not seek an adjournment or make any enquiry. Secondly, they did not supplement the deficiency by producing their copies of relevant orders, or their explanation for what had happened. It is therefore perhaps a little unfair to complain of an injustice in the procedure in the court below when no protest had been made about it and no attempt made to remedy the alleged deficit.

[19]But, moreover, and this is their second huge difficulty, Judge Oppenheimer does not appear to have accepted that argument. I have already read the passage that indicates that his initial reaction was that the absence of the court file was not a very good reason for a re-hearing and that he would proceed by way of review. His judgment indicates that it was the duty of the Borough to see that the relevant history was before the court in proper form. In the discussion that took place, it is quite apparent that he was accepting that it was a fault on the part of the Local Authority. Whether he was expecting too much of Local Authority Housing Managers to prepare a full bundle and a full chronology on a haphazard application, as sometimes they are, for the suspension of a warrant of execution is not to the point. The point is that the judge does not appear to have accepted that there was an injustice which justified the Local Authority seeking a re-hearing.

[20]It is, in the end, very difficult to see precisely what injustice the judge did find had occurred or what interests of justice actually required this re-hearing. It is, after all, to be firmly accepted that a re-hearing is an exception to the general rule; that some injustice must have occurred, and a simple failure to put one's case before the first court is not ordinarily to be cured by a re-hearing. If fresh evidence is to be put in, permission is sought for it. There are the usual obstacles to calling fresh evidence that could have been made available to the court below, as this evidence could have been, and I am afraid that, one way or another, Judge Oppenheimer took his eye off CPR 52.11(1)(b), to which, in fairness to him, he was not specifically directed, although the opening remarks of the solicitor had been by way of reference to the justice of the case.

[21]I am sympathetic to the judge for a second reason, namely that Mr Zimuto, whose advocacy was restrained, appeared at one moment to be accepting that, in principle, a re-hearing would prove acceptable. That emerges more clearly from the exchanges that followed the judgment when Mr Zimuto sought permission to appeal, and Judge Oppenheimer said this:

"I think we went through this at the beginning and it is important for me to observe I took account of what I took to be something approaching an agreement that this case could be and possibly even should be heard by way of a re-hearing, although I did not take what you said as a consent."

[22]Mr Zimuto, I think, acknowledges today that he could have been more felicitous in his submissions to the judge, and should more accurately have sign-posted his true objection to a re-hearing, which can be discerned from his submissions, namely that he was not in a position to deal with the whole history of the case and explain why over many years there had been these accumulative failures by his client. He was not able to explain what misfortunes had cast her out of work, what difficulties there were in obtaining her housing benefit, and generally in explaining the panoply of disaster which alas so often afflicts litigants in this class of case.

[23]So I have my sympathies for the judge, but I fear that I, for my part, can see no injustice in the way the case was handled below, and no injustice compelling a re-hearing before the circuit judge. For that reason, the judge erred and the main ground of appeal is made good.

[24]The question then arises as to what this court should do in circumstances where the judge, having exercised his own discretion, came to these conclusions: that, to summaries it, it was a case where the arrears had risen inexorably, reaching what he called "a stupendous climax on 10 February 2005 when the arrears before the District Judge were £5,003.15".

[25]He accepted that, since the District Judge's order, the tenant had observed its terms, had paid quite substantial monies off the arrears, that the District Judge was aware of the amount of arrears, the number of suspensions, and nonetheless granted a further suspension -- the tenant being in the "Last Chance Saloon". But, he said:

"Regrettably, there is no evidence to support the suggestion that she could not have worked for four months [a period earlier in 2005 when she was receiving treatment from the hospital]. There is produced, and I asked for it, a letter dated 6 April showing an appointment given to Ms Richardson by Charing Cross Hospital at the orthopaedic clinic on 22 June. She also says that at some point she lost her housing benefit claim forms, but I do not think, frankly, much turned on it by 10 February 2005."

[26]He considered that he had a simple discretion to exercise, conferred on him by section 85(2) of the Housing Act 1985, which is unfettered, and he said:

"There is no sufficient evidence before me that the respondent has, is or ever has been, able to organise her affairs so as to be able to afford the payments in question; and that is proved by the state of the rent account as I have referred to it since February 2003."

He referred to the Local Authority's duty to balance its books. He held that:

"A rent picture, such as the one presented here, is one the court should, in my judgment, not sanction, and further, in my judgment, anybody looking at the state of this rent account would, as a payer of Council tax, be appalled, if not actually outraged, by the suggestion that the Borough should continue to support arrears of this kind over this sort of period."

[27]So, in the exercise of his discretion, he ordered the warrant of possession issue. We do not have to look closely at that in view of his error of principle in treating it as a re-hearing. But, that said, it does seem to me that the learned judge had failed to take into account the short witness statement of Ms Richardson, to which I made earlier reference. In that document, she explained how her employment had changed many times. She had been in and out of work. She was thoroughly confused about housing benefit. She went on to say:

"I have ensured I have made regular payments of £227 a month in compliance with the court order. I have since sought full-time employment as a sales administrator. I have completed the relevant documentation to set up direct debit payments. However, I am awaiting confirmation of this set up. I will definitely keep to the present arrangements and understand the consequences of not doing so."

[28]The judge, furthermore, made no reference to her consulting the so-called debt solicitor in order to get her affairs in proper order.

[29]It seems to me, therefore, that one can criticise Judge Oppenheimer for concentrating solely on the history, when essentially an application to suspend a warrant involves in addition, if not entirely -- certainly in addition -- a prospect of enquiry as to whether or not the payments can be maintained and some payments made off the arrears. I do not see his taking those factors into account may impugn the exercise of his discretion.

[30]He went on to say:

"If I had been reviewing the judgment of the District Judge on appeal in the ordinary way, rather than hearing this by way of re-hearing, I would have said that the District Judge so far exceeded the bounds of her reasonable discretion that the appeal would inevitably have been allowed. In my judgment, to allow arrears to get to anything like this and to permit continuing suspensions is wrong in principle and those are the reasons for which I will allow the appeal."

[31]I respectfully disagree.

[32]For all those reasons, I would allow this appeal and restore the judgment of the District Judge.

LADY JUSTICE ARDEN: I agree with the judgment of my Lord, Ward LJ, and would add some short observations of my own.

[34]First, the case which the judge had to consider turned on the exercise by the District Judge of her discretion under section 85 of the Housing Act 1985. There is a substantial difference between an appeal by way of a review of the order of the District Judge in these circumstances, and an appeal by way of re-hearing. If it is an appeal by way of review, then the function of the appellate court is limited to seeing whether the exercise of discretion was wrong in principle or went beyond the generous ambit within which disagreement is possible. As to the latter phrase, see re G v G

[1985] AC 647

at 652.

[35]CPR 52.11 provides:

"(1) Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive – (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence. (5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission."

[36]The general rule about appeals is, as Brooke LJ said in Tanfern Limited v Cameron-McDonald

[2002] 2 All ER 801

, that every appeal from the lower court will be limited to a review of the decision of that court.

(b) :

"... in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing."

[37]There must be some unusual factor for at least two reasons. First, the appellant has already had one hearing and therefore it is not necessary in the interests of justice in the ordinary course for there to be another hearing. Second, if the original hearing was unjust or the conclusion of the court was wrong, the appellate court will allow the appeal under CPR 51.11(3). In all these cases a re-hearing would be inappropriate.

[38]CPR 52.11(1)(b) makes it clear that the court must have regard to the circumstances of the particular case before it. That is one of the reasons why this court has not attempted to formulate criteria as to when the appellate court should decide to hold a re-hearing. Thus, in Audergon v La Baguette Limited

[2002] EWCA Civ 10

, Jonathan Parker LJ, with whom Pill LJ and Tuckey LJ agreed, held at paragraph 83:

"It is undesirable to attempt to formulate criteria to be applied by the appeal court in deciding whether to hold a rehearing. There are two main reasons for this. The first reason is that the decision to hold a rehearing must inevitably rest on the circumstances of the particular appeal. The second reason is that any attempt to formulate such criteria would in effect be to rewrite the rule in more specific terms, thereby restricting the flexibility which is inherent in the general terms in which the rule is framed."

[39]There is a danger that the absence of the formulated criteria will be taken as a signal that the threshold test in CPR 52.11(1)(b) is relatively low and can be based on the appellate court's provisional view of the merits of the appeal. I would like to emphasise that the appellate court should not strive to bring the case within CPR 52.11(1)(b), even where it considers that to hold a re-hearing would be a sensible outcome. It is, I appreciate, sometimes difficult for a court which acts as a trial court for some purposes and an appellate court for other purposes always to keep its separate functions clear, but there are two distinct functions. When hearing an appeal, the court must scrupulously follow CPR 52.11(1), however well-intentioned the motive for a departure. CPR 52.11(1)(b) is simply an exception to the general rule, and it is not provided for the purpose of taking short cuts.

[40]In any event, I agree with Ward LJ that, in the particular circumstances of this case, this is not a case which qualified under CPR 52.11(1)(b) for the reasons that he has given. In particular, the respondent had not objected to the District Judge deciding the case without having in front of her the whole court file.

[41]The second point on which I would like to make short observations arises out of counsel's submissions to the judge, to which Ward LJ has referred. At page 151 of the appeal bundle, the transcript of the proceedings before the judge records counsel's submission that, if the judge was to proceed by way of re-hearing, there were two important pieces of evidence which are readily available, but that had only been addressed in very limited terms. Counsel said:

"Those are the two most important pieces of evidence which are readily available. There is one other factor which the court may, or may not, want to address and I think it is only addressed in very limited terms which is as to why there is such an appalling apparent record of default in the past because it is a factor which the court may be influenced by in determining whether or not it is appropriate to suspend again. That has not been dealt with to any significant degree although there is a witness statement in the appeal bundle."

[42]Shortly thereafter counsel went on:

"My point, your Honour, really is coming from the perspective of the defendant respondents of the appeal trying to put forward an explanation in real terms in respect of previous defaults because that is a factor which the court will [have] to have in mind. It is not a matter which has been specifically addressed for the purposes of this hearing, if I can deal with it in that way. That is my only objection to it, otherwise this court could not sensibly consider the matter without attempting to look at matters in the holistic way of thinking in relation to [inaudible]."

[43]Now, it is clear that counsel did not articulate the request for an adjournment. The transcript therefore discloses one of those awkward situations that can arise in the course of an oral hearing. There is in any such situation a danger of a misunderstanding between the advocate and the judge. The duty is of course placed on the advocate to make the advocate's position clear. But I also consider that, in this particular case, the judge failed fully to absorb what the advocate was saying. His response to the submissions which I have just read was:

"I am afraid you are right. I will look at the evidence in question."

Then he turned to counsel for the appellant and asked counsel to show him the court orders. The reference in that passage to the evidence is, I think, to the evidence of Ms Richardson, although it is not clear that at any point in the hearing he was invited to read it.

[44]As I see it, the judge was on notice that counsel was put in difficulties about the state of the evidence, and it seems to me that he should have clarified the position with counsel, and elicited whether an adjournment was sought; or alternatively whether counsel needed a short opportunity in which to take instructions so that the matter could proceed.

[45]Finally, I agree with all that my Lord has said about the alternative exercise of discretion by the judge in the event that he had not had a re-hearing. In my judgment, the judge purported to apply a bright-line test to the exercise of discretion, and this discloses in itself an error of principle, because the exercise of discretion in this sort of case must be related to the individual circumstances of the case. For that purpose the judge had to consider the evidence as to the arrears and as to what the respondent to the appeal was going to do about them.

[46]For all those reasons, I agree with the order that my Lord has proposed.

Order

Appeal allowed. Respondent to pay the costs of the appeal.