B2/2001/2281
Neutral Citation Number: [2001] EWCA Civ 1694
IN THE SUPREME COURT OF JUDICATURE            
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE OPPENHEIMER)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Monday, 29th October 2001
B e f o r e :

LORD JUSTICE RIX

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SOCRINA YAXLEY
Claimant

‑ v ‑

MALCOLM MCGLAVE
Defendant

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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The Claimant appeared in person
The Defendant did not attend and was unrepresented

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J U D G M E N T
Monday, 29th October 2001
1.	LORD JUSTICE RIX: This is an application for permission to appeal by Mr McGlave. He seeks permission to appeal against the judgment of His Honour Judge Oppenheimer, given on 21st September 2000. His application was somewhat late but he was relying on information that he received (which has been proved before me) that he had 28 days to make his application. In the event he was some three days beyond that, but as a litigant in person I would extend time for this application. Depending on the outcome of this application for permission to appeal he also seeks a stay of execution against eviction, which is the consequence of his losing his defence below. He also asks me to adjourn this hearing on the ground that he has prospects that his legal aid certificate will be extended in the hands of new solicitors whom he has instructed, or wishes to instruct, having dismissed his old solicitors; so that if legal aid was further extended he would be represented upon this adjourned application.
2.	This is a case in which the owner of the house, in which Mr McGlave and his family have been living in the garden flat, is a widow who inherited the house at 7 Emanuel Avenue, Acton, London W3 on the death of her husband in December 1996. She wishes to obtain control of the house so that she can if necessary sell it. Mr McGlave had hopes early this year that the house would be sold to his wife but, for whatever reason ‑ Mr McGlave says because Mrs Yaxley is deceitful and untrustworthy ‑ those prospects fell through. They hardly enter into the merits of these proceedings.
3.	The position is that Mr McGlave has been living in one or other of the flats in the house for quite a number of years and, being a handyman (probably that expression understates his abilities) he made himself extremely useful during Mr Yaxley's lifetime and indeed after his death, in converting or renovating first one and then another and yet another of the various flats in the house into which he moved at various times. In return for those services, and also in return for a sort of standing service as the maintenance man in the house for the benefit of all the tenants there, Mr Yaxley had effectively allowed Mr McGlave to live in one or other of these flats in the house rent‑free over a number of years. The evidence which comes from the letters that Mr Yaxley wrote to Mr McGlave indicate that it was not so much an arrangement for rent‑free living, but rather that the services provided by Mr McGlave (or I think even the costs of materials) were used as an abatement of rent.
4.	Ultimately, a letter, which the judge referred to as “the critical letter”, of 17th October 1996, just two months or less before Mr Yaxley's death, purported to record their last agreement under which Mr McGlave would move into the ground or garden floor of the house and there convert those premises into a larger garden flat for himself and his family, and a smaller flat or flatlet referred to as Flat No.1. The letter in question recorded certain details about this arrangement and also recorded an arrangement whereby Mr McGlave would pay £160 a week for the two flats, that is to say the garden flat and Flat No.1, but would be entitled to use Flat No.1 for his own purposes to rent and to obtain most of the means thereby of providing the rent which Mr Yaxley was looking for of £160 per week. That letter only emerged in May 2000 when Mrs Yaxley brought to her solicitor's attention a box in the attic of her house in which a copy of this letter was found.
5.	Mr McGlave denied ever receiving the letter. He also denied entering into the agreement which the letter records. The letter begins by referring to a telephone conversation the previous evening with Mr McGlave. The circumstances in which this letter came to light were in evidence before the court. There is no sign in the judgment that the letter was relied on before the court as being other than a genuine document, and Mr McGlave's defence was, as I say, that he neither received it nor had entered into the agreement which it records.
6.	On that point the judge did not accept Mr McGlave's evidence. He said:
“It is inconceivable that Mr Yaxley would have referred to such a conversation had it not taken place. The best evidence of what took place during that conversation is the critical letter, and I accept that its content reflect the agreement.” 
7.	In a careful and lengthy judgment the judge went through the history of first Mr Yaxley's, and after his death Mrs Yaxley's, relations with Mr McGlave, making careful findings of fact along the way. Those findings of fact included findings that, despite the abatement of rent by reason of the provision of services, Mr Yaxley had always looked to Mr McGlave for rent in principle, and that Mrs Yaxley continued to do so after her husband's death, save for a period from the beginning of 1999 until 1st May 2000 when she accepted that she did make an agreement with Mr McGlave that he could live rent‑free in return for complete management of the house, its maintenance and its tenancies.
8.	From 1st May 1999, however, she brought in professional agents to manage the house and brought that arrangement with Mr McGlave to a close. The judge found and held that after that date, as before the beginning of that period, that is before the beginning of 1999, Mr McGlave held an assured tenancy in respect of which he was obliged to pay the rent which the judge found had been agreed in the agreement recorded in the letter of 17th October 1996. He therefore held that, following the failure of payment of rent after 1st May 2000 for more than two months, Mrs Yaxley was entitled to bring the assured tenancy to an end.
9.	On this application Mr McGlave, acting in person, has made two essential points. The first is that the agreement reflected in the letter of 17th October 1996 was unworkable, impractical and indeed illegal, because it would have left him in a position where he would have had to have accounted for the rent of Flat 1 which he was not entitled to do as a person living on benefit. It is not quite clear to me what the consequences of that submission is, for instance whether Mr McGlave is saying that the letter is not genuine or is a forgery or is a device of Mrs Yaxley.
10.	His second point, which is really directed to the circumstances in which Mrs Yaxley gave evidence through an interpreter, is that the trial was misconducted because Mrs Yaxley was not required not to discuss her evidence with the interpreter during an adjournment. Mr McGlave made this ground the basis of a general complaint against Mrs Yaxley to the effect that she could speak English and understand English perfectly well, as was indicated for instance by her witness statement, and that the judge had established in the course of the trial that she could speak English. The services of the interpreter were then, he said, dispensed with, but after ten minutes the judge did after all need an interpreter. Mrs Yaxley is from the Philippines.
11.	Mr McGlave developed from this, and from certain other matters such as those I have touched on briefly regarding the prospective sale of the house to Mrs McGlave, the submission that Mrs Yaxley was a thoroughly dishonest and untrustworthy person, with the inference, I suppose, that she had given dishonest and untrustworthy evidence at trial.
12.	None of this attack upon Mrs Yaxley appears from the judgment. There is nothing in the judgment to suggest any attack on her in general or by reference to the emergence of the letter of 17th October and the circumstances in which it came forward at a relatively late date.
13.	So far as the particular point that the agreement could not have worked (I suppose the inference is, therefore, that it could not have been made), Mr McGlave told me candidly that this was not raised at trial. He said that he had raised this concern of his with his solicitors. He assumed that his solicitors had raised it with his counsel (for he had both solicitors and counsel representing him at trial) but that the matter was not raised before the court. Mr McGlave says that he has complained against the solicitors to the Law Society. He has, as I have said at the beginning of this judgment, dismissed his solicitors and seeks to appoint new ones. It is not for me to consider what (if any) rights, if these allegations of Mr McGlave are well‑founded, he might have against his former solicitors. My concern is that Mr McGlave is seeking to raise on this permission to appeal points which he accepts were to his mind and raised by him with his solicitors at or by the time of trial, but were not raised themselves at trial. He seeks to found an appeal on a general attack on the honesty and evidence of Mrs Yaxley, again not reflected in the judgment.
14.	The judge, who heard evidence from both Mrs Yaxley and Mr McGlave, amongst other witnesses, and had to make up his mind as to whom he believed, accepted the evidence of Mrs Yaxley and did not accept the evidence of Mr McGlave on the question of the agreement recorded in the letter of 17th October 1996. I cannot find in the submissions which have been put clearly and competently before me by Mr McGlave a real prospect of success on appeal. In effect, Mr McGlave seeks to raise new points not raised at trial going essentially to the honesty of the claimant's evidence at trial in circumstances where the judge, who heard all the witnesses had to make up his mind where the truth lay. The judgment is a detailed and careful one. Detailed and careful reasons are given for the judge's acceptance of the facts that he does accept and the facts that he does not.
15.	In my judgment this application does not raise a real prospect of success on appeal. There is no other compelling reason why permission should be given, and therefore I am bound to reject the application.
16.	It seems to me, in circumstances where there is no prospect on appeal, where the prospect of an adjournment for Mr McGlave to seek further assistance in the nature of legal aid is entirely speculative but ultimately bound to reflect views of the merits of the case which I have already described, and where the effect of an adjournment would be to postpone the possession which Mrs Yaxley seeks, that I should not and have no reason at all to adjourn this application.
17.	Therefore for these reasons this application is refused.
18.	It follows from the judgment that I have just concluded that Mr McGlave's application for a stay of execution of the eviction which he and his family face falls to the ground because that depended in principle upon his obtaining permission to appeal. Nevertheless, Mr McGlave has pressed upon me the difficulties of his position. He puts before me a letter from Ealing Housing Social Services of last Friday, 26th October, which discusses arrangements being made for him and his family in the meantime, but points out that no arrangements can be made to collect and store his belongings before two weeks Monday, 12th November 2001. On that basis I will extend a stay of execution until the Friday of the week beginning 12th November, until Friday 16th November.
(Application refused; no order for costs; stay of execution extended).