[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Wandsworth v Randall [2007] EWCA Civ 1126 (07 November 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/1126.html Cite as: [2008] 3 All ER 393, [2007] 46 EG 176, [2008] 1 WLR 359, [2007] EWCA Civ 1126, [2008] HLR 24, [2007] NPC 116, [2008] WLR 359

[New search] [Printable RTF version] [Buy ICLR report: [2008] 1 WLR 359] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(SITTING AT MAYOR'S AND CITY OF LONDON COURT)
His Honour Judge Birtles

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/11/2007

Lord Justice Dyson:

Introduction

1. Part IV of the Housing Act 1985 ("the 1985 Act") makes provision for secure tenancies and the rights of secure tenants. The property which is the subject of these proceedings was at all material times a secure periodic tenancy. Section 87 of the 1985 Act provides that a person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and one of the two conditions stated in paragraphs (a) and (b) is satisfied. Section 89(2) provides that, where there is a person qualified to succeed the secure tenant who dies and the tenancy is a periodic tenancy, the tenancy vests in that person. The issue in this appeal is: at what point in time are family members residing with a tenant who succeeds to a tenancy pursuant to these provisions to be treated as members of his or her family for the purposes of ground 16 of the grounds for making an order for possession set out in Schedule 2 of the 1985 Act?
2. On 20 September 2006, Deputy District Judge Ryan held that the correct date was the date when the tenant succeeded to the tenancy, i.e. the date of the death of the deceased tenant. On 30 January 2007, His Honour Judge Birtles sitting in the Mayor's and City of London County Court allowed an appeal by the tenant, Grant Edward Randall, and held that the correct date was the date of the hearing before the court.
3. The appellant local housing authority ("the Council") appeal with the permission of Chadwick LJ. This is a second appeal. Chadwick LJ agreed with the view expressed by Judge Birtles that the appeal raises a new and untested point of law on which the guidance of this court would be welcome.

The relevant statutory provisions

4. So far as material, the 1985 Act provides:

"84. – (1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.

(2) The court shall not make an order for possession-

(a) on the grounds set out in Part I of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order,

(b) on the grounds set out in Part II of that Schedule (grounds 9 to 11), unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect,

(c) on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect;

And Part IV of that Schedule has effect for determining whether suitable accommodation will be available for a tenant.

…….

87. A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either –

(a) he is the tenant's spouse or civil partner, or

(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death; unless

……..

89. – (1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy.

(2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or

…..

Part III

GROUNDS ON WHICH THE COURT MAY ORDER POSSESSION IF IT CONSIDERS REASONABLE AND SUITABLE ALTERNATIVE ACCOMMODATION IS AVAILABLE

Ground 16

The accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant and-

(a) the tenancy vested in the tenant by virtue of section 89 (succession to periodic tenancy), the tenant being qualified to succeed by virtue of section 87(b) (members of family other than spouse), and

(b) notice of the proceedings for possession was served under section 83 (or, where no such notice was served, the proceedings for possession were begun) more than six months but less than twelve months after the date of the previous tenant's death.

The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include-

(a) the age of the tenant.

(b) the period during which the tenant has occupied the dwelling-house as his only or principal home, and

(c) any financial or other support given by the tenant to the previous tenant.

Part IV

SUITABILITY OF ACCOMMODATION

1. For the purposes of section 84(2)(b) and (c) (case in which court is not to make an order for possession unless satisfied that suitable accommodation will be available) accommodation is suitable if it consists of premises-

(a) which are to be let as a separate dwelling under a secure tenancy, or

(b) which are to be let as a separate dwelling under a protected tenancy, not being a tenancy under which the landlord might recover possession under one of the Cases in Part II of Schedule 15 to the Rent Act 1977 (cases where court must order possession), or

(c) which are to be let as a separate dwelling under an assured tenancy which is neither an assured shorthold tenancy, within the meaning of Part I of the Housing Act 1988, nor a tenancy under which the landlord might recover possession under any of Grounds 1 to 5 in Schedule 2 to that Act

and, in the opinion of the court, the accommodation is reasonably suitable to the needs of the tenant and his family.

2. In determining whether the accommodation is reasonably suitable to the needs of the tenant and his family, regard shall be had to-

(a) the nature of the accommodation which it is the practice of the landlord to allocate to persons with similar needs;

(b) the distance of the accommodation available from the place of work or education of the tenant and of any members of his family;

(c) its distance from the home of any member of the tenant's family if proximity to it is essential to that member's or the tenant's well-being;

(d) the needs (as regards extent of accommodation) and means of the tenant and his family;

(e) the terms on which the accommodation is available and the terms of the secure tenancy;

(f) if furniture was provided by the landlord for use under the secure tenancy, whether furniture is to be provided for use in the other accommodation, and if so the nature of the furniture be provided."

The facts

5. The Council owns the freehold of 2 Everatt Close, London SW18 1QR ("the Property"). It is a four bedroom house which was let in 1975 to Mr Randall's grandfather on a periodic tenancy. By 31 December 2004, Mr Randall and his grandfather were living alone in the Property. The tenancy had by now become a secure tenancy. On that date, Mr Randall's grandfather died. Mr Randall thereupon succeeded to the tenancy. On 12 January 2005, the Council informed Mr Randall that he could not remain in the accommodation afforded by the Property, since it was more extensive than he reasonably required. On about 7 July 2005, the Council offered Mr Randall a tenancy of a one bedroom flat in London SW 18. Mr Randall refused the offer.
6. On 14 July 2005, the Council served a notice seeking possession on Mr Randall stating that it would seek possession on ground 16 of Schedule 2 to the 1985 Act.
7. At Mr Randall's request, in August 2005 his mother (Mrs O'Connor) and half-sister moved into the Property. Until that date and throughout the period since the death of his grandfather, Mr Randall had been living alone in the Property. Mrs O'Connor had been living in Limerick City in Ireland between 1994 and 2005. She returned to England shortly after the death of her father. She stayed first with her sister in Mitcham.
8. On 2 June and 11 July 2006, the Council made further offers of accommodation in one bedroom flats which were refused by Mr Randall. The second offer was of a flat at 49 Augustus Road, Southfields.
9. Meanwhile, on 4 April 2006, the Council issued proceedings claiming possession of the Property on ground 16 of Schedule 2. The Deputy District Judge made an order for possession. He held that (i) the accommodation afforded by the Property was more extensive than was reasonably required by Mr Randall; (ii) the flat at 49 Augustus Road was suitable alternative accommodation and (iii) it was reasonable to make an order for possession. In reaching this conclusion, he left out of account the needs of Mr Randall's mother and half-sister, since, as he held, they were not members of his family at the date of Mr Randall's succession to his grandfather's tenancy.

The Council's submissions

10. Mr Ranjit Bhose accepts that the phrase "more extensive than is reasonably required by the tenant" in ground 16 is capable of referring to the tenant's reasonable requirements for persons other than himself. It can, therefore, refer to members of his family (as defined by section 113 of the Act) who are sharing the accommodation with him. But he submits that the other persons must be sharing the accommodation at the date of succession. Similarly in relation to whether alternative accommodation is "reasonably suitable to the needs of the tenant and his family" within the meaning of para 1 of Part IV to Schedule 2, he submits that the needs of the family must be judged as at the date of succession.
11. In support of his submission, Mr Bhose makes the following points. First, any other construction limits the ambit of ground 16 so much that it will only be possible for a landlord to invoke the ground in rare cases. If the relevant date for determining the composition of the family unit for the purposes of ground 16 and para 1 of Part IV is the date of the hearing and not the date of succession, then the tenant can defeat a claim for possession under ground 16 by inviting members of his family to live with him at any time between the date of succession and the date of the hearing. It would mean that a claim for possession can be defeated even if the reason why the members of the family move in is to frustrate the landlord's claim for possession. An example of this would be where members of the successor tenant's family vacate their existing suitable accommodation and move into the tenant's accommodation, not because the tenant has any need for their presence for emotional or other family reasons, but simply to defeat the landlord's claim. Moreover, because a claim under ground 16 cannot be brought outside the period specified in ground 16, it would mean that, having moved in with the tenant, the members of his family could move out and return to their previous accommodation after the claim for possession had been dismissed and the landlord would be unable thereafter to rely on ground 16 to obtain possession. Mr Bhose submits that Parliament cannot have intended abusive behaviour of this kind to be permitted by the 1985 Act.
12. Secondly, certainty is promoted if the date of death governs the operation of ground 16 and Part IV as regards the composition of the tenant's family. If the position crystallises at the date of death, the parties know where they stand. If the position is judged as at the date of the hearing, the landlord faces the uncertainty of not knowing until the date of the hearing (i) whether the accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant within the meaning of ground 16 and (ii) the composition of the family unit for whose needs reasonably suitable accommodation provision needs to be made within the meaning of para 1 of Part IV. On this hypothesis, a landlord is required to decide whether or not to serve a notice of intention to seek possession knowing that its decision is liable to be frustrated by matters occurring months later which it may have had no means of discovering and no means of controlling.
13. Mr Bhose submits that these considerations show that Parliament cannot have intended that the hearing date is the relevant date. The clear policy justification for ground 16 is to enable social landlords to maximise the use of their housing stock. Parliament must be taken to have been aware of the severe shortage of social housing stock. There was evidence before the Deputy District Judge from the Head of the Council's Housing Services Department confirming that the general housing context was one of high demand and low supply. The Deputy District Judge summarised the evidence as follows at para 19 of his judgment:

"….. In general terms, the demand for allocation of accommodation runs at nearly six times the annual supply of accommodation. Mr Worth describes 2 Everatt Close as a property which is especially desirable for letting to families with high housing need under the council's statutory duties and powers. The property would be allocated to one of the 370 households now awaiting the allocation of 4 bedroomed accommodation and indeed as the property has been adapted, it could be allocated to one of 18 households with physical disabilities who are awaiting a suitable property. The council has 150 households who are existing secure tenants suffering from overcrowding who are in need of a four bedroomed property and 48 households in temporary accommodation, leased via the private sector market, who have been accepted as unintentionally homeless and in priority need of accommodation under Part IV of the Housing Act 1996."

14. Against that background, Mr Bhose submits that Parliament cannot have intended that ground 16 should be emasculated in the way that inevitably results if the relevant date for determining the composition of the family unit is the date of the hearing.

Discussion

15. I cannot accept these submissions largely for the reasons given by Mr Vanhegan.

The statutory language

16. The starting point is the statutory language itself. An order for possession cannot be made under ground 16 unless three conditions are satisfied. These are that (i) the accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant and the conditions in ground 16(a) and (b) are met; (ii) the court is satisfied that suitable accommodation will be available for the tenant when the order takes effect; and (iii) the court considers it is reasonable to make the order. I shall take these three conditions in reverse order.
17. As regards condition (iii), it is well established (and common ground) that the reasonableness test requires a consideration of all the relevant circumstances existing at the date of the hearing: see, for example, Rhodes v Comford [1947] 2 All ER 601, 604B. The relevant part of section 84(2)(c) is to be construed in the present tense: "unless it considers it [is] reasonable to make the order".
18. As regards condition (ii), the language of section 84(2)(c) clearly provides that the date when the order takes effect is the date at which the court must be satisfied that the suitable accommodation "will be available". On its face, that date is a date later than the date of the hearing. It certainly is not the date of succession, which will always be more than 6 months earlier than the date of the hearing. As a matter of ordinary language, I find it impossible to construe section 84(2)(c) as requiring a consideration of whether the accommodation is reasonably suitable to the needs of the tenant and his family as they were at the date of succession.
19. As for condition (i), I accept that the words "the accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant" in ground 16 do not, when taken in isolation, indicate whether the requirements of the tenant are to be judged as at the date of succession or the date of the hearing. But, when read in the context of the other relevant provisions, in my view it is clear that the requirements are to be judged as at the date of the hearing. It would be odd if the question of reasonableness were to be judged as at the date of the hearing, the issue of the availability suitable alternative accommodation were to be judged as at a date later than the hearing, but that the issue of whether the accommodation is more extensive than is reasonably required by the tenant were to be judged as at the date of succession. To say that accommodation is more extensive than is reasonably required by a tenant entails the proposition that the accommodation is unsuitable for his needs. Accommodation may be unsuitable because it is smaller or larger than is reasonably required by the tenant. Thus ground 16 gives the landlord the right to claim possession (if the other conditions are satisfied) on the ground that the accommodation is unsuitable for his needs (including those of his family). One of the other conditions is that alternative accommodation will be available which is suitable for his and his family's needs. Parliament cannot have intended that the persons for whose needs the existing accommodation is to be suitable should be different from the persons for whose needs the suitable alternative accommodation will be available. They must the same in each case. On the interpretation for which Mr Bhose contends, there is an unexplained mismatch between ground 16 and para 1 of Part IV.
20. In any event, as Mr Vanhegan points out, section 84(1) makes it clear that Part IV of Schedule 2 has effect for determining whether suitable accommodation will be available for a tenant when the court is considering any of the grounds contained in Parts II and III of the Act (grounds 9-16). For grounds 9-15, the date of succession is irrelevant. Ground 9 will suffice as an example. This ground is that "the dwelling-house is overcrowded within the meaning of Part X, in such circumstances as to render the occupier guilty of an offence." The tenant against whom the possession claim is brought under grounds 9-15 will usually not be a successor, and even if he is a successor, the date of succession has no relevance to the ground for possession. The composition of the family as at the date of succession (even if there has been a succession) has no relevance to grounds 9-15. Since para 1 of Part IV must bear the same meaning regardless of which ground in Parts II and III is relied on, it cannot refer to the composition of the family as it was at the date of succession.
21. Further, there is force in the point made by Mr Vanhegan that the interpretation for which Mr Bhose contends involves reading into the relevant provisions additional words. Thus, it involves reading para 1 of Part IV of Schedule 2 as if the following italicised words were added: "in the opinion of the court the accommodation is reasonably suitable to the needs of the tenant and the members of his family who were residing with him at the date of succession". It also involves reading ground 16 as if the following italicised words were added: "reasonably required by the tenant and the members of his family who were residing with him at the date of succession". Words should not be read into a statutory provision unless it is necessary to do so, for example, to avoid absurdity. There is no such necessity here.
22. Moreover, the unqualified language of these two provisions is to be contrasted with section 87(b) which provides that, in order to succeed to a tenancy, a person who is not the tenant's spouse or civil partner must be another member of the tenant's family and have "resided with the tenant throughout the period of twelve months ending with the tenant's death".
23. In my judgment, these are powerful arguments which suggest strongly that the relevant date for determining the composition of the family is not the date of succession, but the date of the hearing.
24. There are further reasons why the judge's interpretation is correct. It is necessary to consider the situation that would arise if family members, who were living with the tenant and the deceased tenant at the date of death, were to move out of the accommodation after the date of succession and before the hearing date. If the composition of the family is fixed at the date of succession, then (i) the ground 16 question of whether the accommodation is more extensive than is reasonably required by the tenant would have to be considered on the footing of what was reasonably required by the tenant and his family at the date of succession; and (ii) the question of whether alternative accommodation was reasonably suitable to the needs of the tenant and his family would have to be considered on the same footing. That would be absurd. It would mean that the local authority would not be able to obtain possession on the grounds that the accommodation is more extensive than is reasonably required, even though at the date of the hearing it is plain that it is in fact more extensive than is reasonably required. This cannot have been intended by Parliament. It would thwart the obvious purpose for which ground 16 was enacted, namely to prevent the under-occupation of social housing.
25. Although Mr Bhose recognises the force of at least some of these arguments, he submits that they must yield to the submissions which I have outlined at paras 11-13 above. It is, therefore, necessary to examine these submissions to see whether the consequences of the judge's interpretation are so absurd that they cannot have been intended by Parliament.

The hearing date cannot have been intended by Parliament?

26. I do not accept that, on the judge's interpretation, ground 16 will be emasculated and rarely capable of being invoked. There will undoubtedly be cases (such as the present) where members of the successor tenant's family move to live with the tenant during the period of 12 months after the death of the previous tenant. We were told that it is the experience of the Council that this regularly occurs in relation to its stock of housing. There is no evidence as to the extent to which on a succession family members move in to take up the space vacated by the deceased tenant. But even if this is a frequent occurrence, there is nothing unlawful about it. Section 93(1)(a) of the 1985 Act provides that it is a term of every secure tenancy that the tenant may allow any persons to reside as lodgers in the dwelling-house. Family members moving into a dwelling-house after the date of succession is a natural consequence of the fact that the original tenant's bedroom has become vacant and there is space for other family members to move in.
27. Mr Bhose raises the spectre of the scope for abuse if the judge's interpretation is right. But even in the extreme case of the members of a family moving in order to defeat the landlord's claim under ground 16 and moving out again once the 12 months' period has expired, the landlord's claim might well succeed. On such facts, the members of the family (and, therefore, the tenant) would not require the accommodation afforded by the dwelling-house which is the subject of the succession tenancy; and the alternative accommodation offered would not be needed to accommodate the members of the family who had moved in temporarily in an attempt to defeat the claim under ground 16. I accept that it may not always be easy for the landlord to prove the relevant facts in relation to the intentions of the members of the family in such cases. But that is far from being a sufficient reason for holding that the judge's interpretation produces results which are so absurd or indeed unreasonable that they cannot have been intended by Parliament.
28. A broader point made by Mr Bhose is that it is difficult for a local authority to gainsay the genuineness of these family movements. At para 32 of his judgment, the judge said: "The local authority will investigate and decide who are the members of the tenant's family at the date of the court hearing. Similarly, the court will be astute to look at the reality of the situation when new members of the tenant's family have moved into the premises between the death of the original tenant and the date of the hearing". I agree. As Mr Vanhegan submits, investigation by the local authority, a request for further information under CPR Part 18 and cross-examination at trial are all ways in which the "needs" of the family members can be ascertained. It should not too difficult to establish when the family members moved to the dwelling-house, why they moved, how long they intend to remain there and whether they have somewhere else to go. Even if I am wrong and there may be cases where to establish these matters is difficult, that does not demonstrate that the judge's interpretation cannot have been intended by Parliament.
29. Nor can I accept Mr Bhose's submission that certainty is promoted if the composition of the tenant's family is fixed at the date of succession, but that if it is determined as at the date of the hearing there will be objectionable uncertainty. To some extent, uncertainty is an inherent feature of claims for possession under the 1985 Act. The court will not make an order for possession pursuant to ground 16 unless it considers it reasonable to make the order and is satisfied that alternative accommodation will be available when the order takes effect. In deciding whether it is reasonable to make the order, the court must take account of all relevant circumstances as they exist at the date of the hearing. Mr Bhose concedes that this means that the court must take account of any change in the circumstances of the tenant since the date of succession. For example, after succeeding to the tenancy, the tenant may have married or started co-habiting in the dwelling-house, may have given birth to a child, or may have succumbed to a disability such that he or she needs a living-in carer. In deciding whether it is reasonable to make an order under ground 16, the court is required to have regard to such changes of circumstances. The existence of such changes may not be known to the landlord when it serves its notice or starts proceedings. Mr Bhose accepts that, if a member of the tenant's family were to move in after the date of succession and to be in occupation at the date of the hearing, this would also be a relevant circumstance that the court would have to take into account in deciding whether it was reasonable to make an order for possession. But, he submits, the introduction of a member of the family would rarely be a factor which would outweigh the general policy consideration which underpins ground 16, namely that, in view of the shortage of suitable housing stock, local authorities should be allowed to maximise the use of the housing stock that is available to them.
30. Although I accept the importance of this general policy consideration, I rather doubt the correctness of this last submission. Whether it is reasonable to make an order for possession must be judged in the light of all the circumstances existing at the time of the hearing. The presence of a family member in the dwelling-house is unquestionably a relevant circumstance. Be that as it may, the important point is that Mr Bhose concedes (rightly) that the presence of a family member in the dwelling-house at the time of the hearing is relevant to the question of whether it is reasonable to make an order for possession under ground 16. It follows that the certainty for which Mr Bhose contends is a chimera. When a local authority serves notice of proceedings for possession or begins such proceedings, it cannot be certain that the court will decide that it is reasonable to make an order for possession.
31. I would, therefore, reject the arguments advanced by Mr Bhose that the consequences of the judge's interpretation are so absurd or unreasonable that they cannot have been intended by Parliament. For the reasons I have already given, I would hold that that interpretation accords with the natural language of the statute.
32. For these reasons, I would hold that the composition of the family for the purposes of ground 16 and para 1 of Part IV of Schedule 2 is not fixed at the date of the succession, but is determined as at the date of the hearing. In these circumstances, I do not find it necessary to deal with the arguments advanced by Mr Vanhegan based on section 3(1) of the Human Rights act 1998 and article 8 of the European Convention on Human Rights. I would, therefore, dismiss this appeal.

Remit to the County Court

33. It is common ground that if, as I would hold, the relevant date for determining the composition of the family unit is the date of the hearing, then Mr Randall's mother and his half-sister are to be regarded as members of his family for the purposes of ground 16 and Part IV to Schedule 2. On that footing, Mr Bhose submits that the case should be remitted to the County Court with appropriate directions. This will enable the Council to secure 3 bedroom accommodation for Mr Randall in place of the 4 bedroom accommodation that he currently occupies. Mr Vanhegan submits that, if the appeal is dismissed, Mr Randall will have succeeded in showing inter alia that the alternative accommodation offered by the Council (a one bedroom flat) was unsuitable. The Council should not be permitted to re-litigate the suitability of alternative accommodation in the same litigation: there needs to be finality. The court has determined the suitability of the alternative accommodation that was offered.
34. The Deputy District Judge held that the 1 bedroom flat at 49 Augustus Road was suitable accommodation within the meaning of Part 1 of Part IV and made an order for possession conditional upon that flat being available for occupation by Mr Randall on giving up possession of the Property. The judge allowed Mr Randall's appeal ie he dismissed the claim for possession. At para 47 of his judgment, he held that a 1 bedroom flat could never be suitable for Mr Randall when he needed a three bedroom flat.
35. It is true that the Council has never offered Mr Randall a three bedroom flat. But section 84(2)(c) provides that the court shall not make an order for possession on the grounds set out in Part III of Schedule 2 unless it considers that "suitable accommodation will be available for the tenant". There is no requirement that an offer of accommodation shall have been made before the hearing. The requirement is that suitable accommodation will be available. That will be demonstrated by evidence at the hearing. So far as I am aware, the evidence before the Deputy District Judge was not directed to whether at the date when an order for possession took effect, there would be available to Mr Randall a three bedroom flat which was reasonably suitable to his needs and those of his family. The issue before the Deputy District Judge was whether the one bedroom flat at Augustus Road was reasonably suitable.
36. I can see no good reason why the matter should not be remitted to a district judge (not necessarily Deputy District Judge Ryan) to decide whether, when the order takes effect, there will be available to Mr Randall, his mother and half-sister accommodation that is reasonably suitable to their needs. It will be open to the Council to establish that a three bedroom flat will be sufficient for their needs and that there will be such accommodation available which is reasonably suitable having regard to all the circumstances including the factors identified at para 2 of Part IV to Schedule 2 to the Act.

Conclusion

37. For the reasons that I have given, I would dismiss this appeal and remit the case to the judge on the basis that I have indicated at par 36 above.

Lord Justice Jacob:

38. I agree.

Sir Anthony Clarke MR:

39. I also agree.