Social landlord loses appeal over whether it granted inter-generational tenancy

It failed to overcome what a judge warned it was a “high hurdle” in disputing a lower court’s finding of fact.

Vale of Aylesbury Housing Trust, which took over Aylesbury Vale Borough Council’s hosting in a 2006 stock transfer, said it had not granted an inter-generational tenancy to Jason Richens. his brother Colin and his late grandfather, a Mr Townsend, as the family claimed.

The case of Vale of Aylesbury Housing Trust Ltd. v Jason Richens [2020] EWHC 685 (Ch) (judgment on 42 Bedford Row's website) was heard in the High Court by Mr Justice Zacaroli on appeal by the trust against a judgment by HHJ Melissa Clarke.

Mr Townsend had occupied the property in Winslow as the sole tenant but Mr Richens moved in with him when he was aged 12.

In early 2007 the trust and Mr Townsend entered into an assured shorthold tenancy but it was disputed whether this was with Mr Townsend alone or Mr Richens and his brother Colin as well.

HHJ Clarke heard evidence from Mr Richens, Colin, his mother Mrs Bidwell and sister each of whom had been present when they said a trust housing officer offered a joint tenancy with Mr Townsend and his grandsons.

She also heard from two witnesses from the trust, neither of whom had been employed at the relevant time, who could find no records of Mr Richens as a tenant or of the meeting.

Judge Clarke identified the relevant question as being “whether, on the balance of probabilities, Mr Richens, his brother, his mother and his sister, are all lying about the meeting”, noting there was a printed tenancy agreement and which Mr Richens, his brother and his grandfather all accepted as evidenced by their signatures.

She considered it “difficult to understand” how all of them could be mistaken and decided the family were telling the truth as she could see no reason to consider the family had lied in a conspiracy to pervert the course of justice.

Also, each family member’s evidence was slightly contradictory ”which tended to suggest it was truthful since if their memories exactly coincided that would suggest concoction”.

Zacaroli J said the critical question before hm was whether HHJ Clarke reached a decision she was entitled to make on the balance of probabilities.

He said: “I do not think it can be said that this was an unreasonable conclusion or one that no judge could have reached on the basis of the evidence.”

He said there were other factors Judge Clarke could have taken into account to reject Mr Richens’ case but the question on appeal was whether the judge’s conclusion was one which no judge could reasonably have reached.

Zacaroli J concluded it was not and noted that the trial judge “had the benefit of being immersed in the oral and written evidence over a period of days.

“This is one of the principal reasons for the high hurdle in an appeal against findings of fact.”

Desmond Kilcoyne and Peter Jolley of 42 Bedford Row appeared for Mr Richens.

Mark Smulian