City West v Massey  EWCA Civ 704: Clarification of ‘Cogency’ by Maximilian Velarde
The Court of Appeal’s consideration of the two joint appeals in City West v Massey and Manchester & District Housing Association has offered some clarification with regards to the making of Suspended Possession Orders (SPO). The reality is that the considerations relevant for an SPO are incredibly unclear, with both tenants and landlords left uncertain as to what is required in order to either satisfy the making of an SPO or an outright order.
The appeal dealt with two claims relating to tenants who had been accused of cultivating cannabis in their property. In both cases the tenants asserted that they were not responsible, but were disbelieved by the judges sitting at first instance. Both were cases of ‘third-party’ cultivation, with no previous breaches of the tenancy conditions. In City West, where the cannabis was cultivated by the tenant’s partner, no prosecution of the tenant ensued. In the case of Manchester, the tenant was convicted of permitting the production of cannabis and was sentenced to custody. In both cases District Judges made SPOs, which was overturned in the case of Manchester by a circuit judge on appeal.
The evidential requirements for determining whether an SPO should be granted (in reality a fact-heavy exercise) derive from the case of Sandwell MBC v Hensley  HLR 22. This was another case involving cannabis cultivation, though there by the tenant himself. The court stated that there needed to be ‘cogent evidence’ that the previous conduct will cease for an SPO to be made. The vagueness of the word ‘cogent’ has resulted in some uncertainty, culminating in the two appeals in City West and Manchester.
At para 47 Arden LJ, giving the agreed judgment of the court, remarked that
‘To be ‘cogent,’ the evidence must be more than simply credible: it must be persuasive. There has to be evidence which persuades the court that there is a sound basis for the hope that the previous conduct will cease or not recur.’
She commented that this was a ‘realistic’ requirement. It took into account a ‘sound basis for hope for the future’ but the tenant did not have to give a ‘cast-iron’ guarantee. At para 49 it was stressed that the evidence relating to future compliance did not solely have to focus on the tenant himself, but could cover actions of other individuals. It was emphasised at para 52 that there was no absolute rule that prevented an SPO being made in circumstances where the tenant has lied, though naturally there could be serious consequences for a tenant who tells untruths.
In deciding to grant a SPO Arden LJ emphasized that the court must first make relevant findings of facts before considering whether to exercise its discretion. The judge should be clear which evidence is accepted and which is rejected. Any assurances by the tenant could be cross checked against other evidence and the motives of a tenant. Concluding, the court dismissed the appeal in City West but allowed it in Manchester. Accordingly, in both cases the SPOs were confirmed.
It will have to be seen whether the decision will have a practical impact on the exercise of judges’ discretion to suspend orders for possession. Indeed, despite the supposed clarification of ‘cogent evidence,’ the requirement still seems broadly painted. The impact may well be limited. The power to suspend remains a wide one, heavily dependent on the facts of a given case.