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Eldersan Limited v Radan Covic (Personal Representative of Mrs Dusica Macrae-Brown) (Deceased) [2020] UKUT 3 (LC)

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30th April 2020

Summary

The Upper Tribunal reversed the decision of the First-tier Tribunal in a claim brought by the freeholder for a determination that there had been a breach of covenant under s. 168(4) of the Commonhold and Leasehold Reform Act 2002.  The FTT found that the freeholder had not discharged the burden of proof upon it, but the Upper Tribunal considered that there was ample evidence before the First-tier Tribunal from which it should have concluded that on the balance of probabilities the relevant covenant had been breached, and it did not appear from the FTT’s decision that it had made adequate attempts to assess this evidence before resorting to the burden of proof.

Facts

The case concerned a two-storey building split into two flats. The lease of the ground floor flat included covenants obliging the leaseholder:

• not to cut any of the walls, ceilings, floors or partitions of the demised premises.
• not to make any structural alterations without the previous consent in writing of the landlord; and
• to keep the demised premises “in good substantial and tenantable repair and condition and in particular so as to support shelter and protect the parts of the property other than the demised premises …”

The ground floor leaseholder obtained planning permission to erect a rear extension and obtained a licence from the freeholder to conduct the works.  However, the works done went beyond the licence granted. Around the time of the work, significant cracking manifested in the first floor flat.

Issues

The freeholder sued for a determination that breaches of covenant had been committed, pursuant to section 168(4) of the 2002 Act. The particular aspects of the work under scrutiny were the removal of the front chimney breast on the ground floor, the lowering of the floor of the basement, the removal of part of the corbelling at the base of the party wall, and the removal of a spine wall in the ground floor flat.

First Instance

The FTT’s decision was heavily criticised by the Upper Tribunal on appeal. The FTT found that there had been breaches of covenant by the removal of the chimney breast and the lowering of the basement floor, but found that the removal of spine wall was not a breach of the clause to keep the demised premises in good substantial and tenantable repair and condition so as to support the rest of the property.

The Tribunal heard expert evidence from structural surveyors for both the freeholder and the leaseholder on the latter point. The surveyors’ evidence conflicted. The Tribunal therefore found that it was unable to determine that the movement in the upper flat was due to the works on the spine wall and therefore dismissed the freeholder’s application on that ground.

Decision on appeal

Permission to appeal was granted on the basis that it was arguable that that the FTT’s assessment of the evidence was flawed. The FTT appeared to have decided the issue entirely on the basis of the burden of proof, stating that due to the conflict of evidence it was unable to find for the freeholder (upon whom the burden to prove the basis of the application would lie).

The Upper Tribunal considered that this case fell within the circumstances where the Upper Tribunal can and must interfere with the fact finding of the FTT. The FTT had clearly erred in resorting too readily to the burden of proof as the means of resolving a disputed question of fact. Notwithstanding the conflict of evidence between the experts, the Tribunal should have had regard to the other evidence before it in order to determine whether it was more likely than not that the damage had been caused by withdrawal of support below. In particular, a schedule of condition had been prepared before the works were undertaken and reference to the same would have shown that additional cracking in the upstairs flat had emerged during the works themselves.

The Upper Tribunal reviewed the authorities on when the burden of proof may be legitimately resorted to by a court or tribunal. In particular, reference was made to the comments of the Court of Appeal in Court of Appeal in Verlander v Devon Waste Management [2007] EWCA Civ 835 , where Auld LJ expressed the relevant principles as follows:

• “A judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence.”
• “Resort [to the burden of proof] is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice – and a respectable and useful part at that – where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.”
• “The Court of Appeal should only intervene where the nature of the case and/or the judge’s reasoning are such that he could reasonably have been able to make a finding one way or the other on the evidence without such resort.”

In the instant case, the FTT had not shown by its reasoning that it had properly assessed all of the evidence before it in relation the alleged breach. In the circumstances, and in light of the available evidence, the FTT’s failure to make findings of fact and to decide which of the opinions of the experts it preferred could not stand.

The Upper Tribunal conducted its own site visit and reassessed the relevant evidence before coming to the conclusion that there had been a breach of the relevant covenant.

Comments

Firstly, this case is a useful practical reminder that in civil proceedings (including proceedings before the property tribunals) the burden of proof is rarely likely to be determinative or crucial to the outcome of a case.

Of course, the burden is on the party who brings a case or who asserts a fact to prove that case with evidence, but the circumstances where a tribunal may decide an issue purely on the burden of proof alone will be extremely rare.

It is incumbent upon a tribunal to critically assess all of the evidence before it and come to a conclusion, if at all possible, as to which party’s case is more likely than the other. It is only in exceptional cases, having assessed all the evidence available, where a tribunal can legitimately conclude that it was unable to conclude either way and find the case not proved. This situation was referred to by the Court of Appeal in the case of Stephens v Cannon [2005] EWCA Civ 222  (quoted in the instant case) as “A legitimate state of agnosticism.” Whereas it can arise in any type of claim, it is more likely to arise when there is a significant part of the relevant factual picture  not available to the tribunal, such as (to give examples given by the Court of Appeal) an enquiry into the identity of the aggressor in an unwitnessed fight, or an enquiry into the cause of the sinking of a ship.

Secondly, this case emphasizes that, if a tribunal considers that it must resort to the burden of proof when determining a case, it must refer in its reasons to the steps that it has taken to analyse the evidence as a whole and explain why it was not able to reach a view on the evidence available. If such reasoning is not included, the decision will be open to appeal on the basis of inadequate reasoning.

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