Guerroudj v Rymarczyk: Order made under liberty to apply provision upheld

Lord Justice Underhill
A short note on the Court of Appeal decision Guerroudj v Rymarczyk [2015] EWCA Civ 743, handed down today.

This was a dispute between two former cohabitees over a secure tenancy. The outcome revolved around the circumstances of the parties. The man, Mr Guerroudj ('Mr G'), had a back condition which made him unable to work. The woman, Ms Rymarczyk ('Ms R'), was in work, but on a low income.

The tenancy was provided to the couple by the local authority because, or at least in part because, of Mr G's back condition - it was not adapted in any way, but was on the ground floor, which was important because he had difficulty climbing stairs.

The relationship broke down and both parties sought a transfer of the tenancy under Part IV of the Family Law Act 1996. The judge  made an order in Mr G's favour, partly because he found that Mr G's back condition was a very significant factor in the grant of the tenancy. He ordered Mr G to pay 'compensation' of £1,500 to Ms R. He included in the order a liberty to apply provision. The reason for doing so was that:
"He was evidently unhappy about whether he had been given enough information about the prospects of either party obtaining alternative accommodation if they had to quit, which was potentially a decisive consideration, and he wanted to leave open the possibility of considering it further."
Shortly after the order was made Ms R informed the court that she had been advised by Shelter that because Mr G was physically disabled he would be able to establish a priority need for housing and would be owed a duty under Part 7 of the Housing Act 1996 to be accommodated by the local authority. She, on the other hand, was not owed any such housing duty or assistance as she was not classed as having a priority need.

The matter went back before the court and the judge set aside his previous decision, ordering a transfer of the tenancy to Ms R, who he found could not afford a 1 bedroom flat within a reasonable distance of her place of work. Mr G appealed.

In the Court of Appeal the central issue was whether the judge should have undertaken a further hearing under the liberty to apply provision. Giving the leading judgment, Lord Justice Underhill  felt that on balance he was entitled to do so under the liberty to apply provision:
"...the whole point about the liberty to apply was that the Judge felt that at the first hearing insufficient attention had been paid to the parties' prospects of obtaining other accommodation. As to that, he did now have some further material."
On the basis of that further material, the judge was entitled to come to the decision that he did. Accordingly, the appeal was dismissed. Lord Justice Underhill did, however, have a suggestion as to how the judge should have proceeded at the original hearing:
"The one criticism that I would, with respect, make is that it would have been better – if, as he evidently did, he felt that justice required a fuller exploration of the possibilities of alternative accommodation – if he had simply adjourned the hearing and kept his counsel as to any provisional conclusion that he might have reached."
Mr Justice Hildyard and Lord Justice Munby gave concurring judgments.