[2025] EWHC 1859 (KB)

It is asserted that the Judge was wrong to find that, as of January 2020, the Applicant was in arrears.

The Respondents claimed that, as at the end of 2019, arrears owing to them amounted to £4,300. The calculation of this sum was presented by way of schedule, which identified the £600 payable each month, the monthly payments by bank transfer from the Applicant and the shortfall, which totalled £4,300. In oral submissions upon the renewal application, the Applicant accepted that this was accurate insofar as bank transfers were concerned, but explained that her case had been that she had paid the shortfall in cash. This had been denied by the Respondents in their evidence before the Judge. This issue was one word against the other. The Respondents had provided their bank statements, and confirmed a single cash payment in January 2020 of £300.

The Judge rejected the Applicant’s evidence that she was not behind in her rent as at the end of 2019. At [52] the Judge found:

“I find the Applicant’s assertion that there was no outstanding rent arrears as at January 2020 to be wholly inconsistent with her email to which I have referred…If at that stage she was up to date with her rent, why would she be asking Mr Hayes to hang in there? Frankly, it makes little sense.”

The Applicant’s position, in evidence before the Judge and on appeal, was that the email reference to ‘hang on in there’ related to a £300 shortfall for December 2019, rather than an aggregate shortfall of £4,300 calculated by reference to the schedule of rent owed and bank transfers. On its face, the conclusion of the judge that this would be an odd thing to say if the only arrears was a single shortfall of £300, for the first time ever. ‘Hang in there’ is certainly a phrase which suggests a rather longer term issue. It is not reasonably arguable that the Judge was not entitled, on this point, to prefer the evidence of the Respondents.

In her written grounds of appeal, the Applicant refers to an email dated 9 August 2021 from the Respondents stating, ‘we have received no rent since this happened’. It is said that this is an admission supporting the fact that the Respondents had received rent up to that point, and thus undermining the finding of the Judge (who does not refer to this email.) This is not reasonably arguable: the email is entirely neutral. It is right, factually, that no rent was received since the events complained about, whereas prior to the end of 2019, some rent was received. It is therefore not probative either way.

In her oral submissions (but not written grounds), the Applicant referred me to an email of 28 January 2020, which is of particular importance, stating to a third party, amongst other things:

The Applicant says that this was not considered by the Judge, and had it been, the Judge would have concluded that she was correct that she had only gone into rent arrears because of the problems occurring in late 2019. The Applicant is correct that this document was not referred to by the Judge. As discussed in relation to Ground 6, it is likely that the Judge was not aware of this email. However, it is not reasonably arguable that the email undermines the finding of fact by the Judge, which he was plainly entitled to make. Indeed, the Judge would have been entitled to observe, in further support of his factual conclusion, that the Applicant had produced no evidence (such as receipts) for the cash paid in respect of rent, nor pointed to extracts from her bookkeeping which one would expect to have existed recording that she had (as she explained in evidence to me) given the Respondents money from the till. For a business to have no record whatsoever that it had paid £4,300 before tax in cash payments to the business’s landlord would be highly irregular. The Judge was plainly entitled to accept the Respondents’ evidence on whether, and by how much, the Appellant was in arrears as at the end of 2019.

It is therefore not reasonably arguable that the Judge’s finding in this respect was an error of fact.