Baker v MacIver and another

Rent Act 1977 — Case 9 in Schedule 15 to the Act — Issue as to greater hardship — Appeal by tenant from decision of county court judge — Judge held that tenant had not discharged the onus which rested on him of proving greater hardship — Judge misdirected himself — The factors of greater hardship, particularly the financial factor and the availability of105 alternative accommodation, were all on the side of the tenant — Although the question of greater hardship was pre-eminently one for the county court judge, the present was a case where the Court of Appeal was entitled and bound to interfere The landlord, respondent to the present appeal, let a dwelling-house, Pleasant View, to the tenant, the appellant, on a monthly tenancy, protected under the Rent Act 1977 — The tenant had entered into a ‘gentleman’s agreement’ with the landlord before the tenancy began that he would give up possession on three months’ notice if the landlord required the house — At the time of the letting the landlord was employed as a farm manager and occupied, as a tenant protected under the Rent (Agriculture) Act 1976, a house known as Pilstone Farmhouse — Unfortunately, the landlord later became redundant, his employer’s son taking over the management of the estate, and the landlord was given notice to quit Pilstone Farmhouse — As a consequence the landlord gave the tenant notice to quit Pleasant View — The landlord’s employer was not ungenerous — Apart from a small redundancy payment, the landlord was offered £20,000 for giving up his tenancy and alternative accommodation in the shape of a cottage, which would be protected, a short distance from the employer’s own house — The landlord, however, preferred to seek to recover his own house, one reason being that to move so near the house of his ex-employer and the latter’s son would tend to keep alive the feelings of distress at his redundancy The county court judge, in proceedings for possession by the plaintiff landlord, decided all three essential matters in the plaintiff’s favour, namely that it was reasonable for a possession order to be made, that the premises were reasonably required by the plaintiff for himself and that the tenant had not discharged the onus of proof that there would be greater hardship on him if the order were made — The judge gave considerable attention to the question of greater hardship, which was the main issue in the subsequent appeal — He set out a number of tests in the course of which he said that, in regard to stress, there was nothing to choose between the parties and that the fact that the tenant would have to move was not in itself evidence of hardship — In the end he came down in favour of the plaintiff and made an order for possession — The defendant tenant appealed The appeal turned on the judge’s finding as to greater hardship and the Court of Appeal referred to a number of authorities about the way in which the court should approach a county court judge’s decision in possession cases, particularly where the issue was one of greater hardship — It was clear that this was pre-eminently a question for the judge and some recent cases indicated that to justify interference with his finding the appellant must virtually show that the decision was perverse, eg Hodges v Blee — The court in the present case did not find their task easy — In their view the most relevant matters before the judge were the respective financial positions of the parties and the availability of alternative accommodation — Under both heads there was great disparity and it was the tenant, the appellant, who would suffer the greater hardship — As regards accommodation, the landlord, the present respondent, was offered accommodation fully protected under the 1976 Act, whereas such accommodation as was available to the appellant was of limited security — The respective financial positions of the appellant and respondent were also wholly out of balance It was clearly the view of both members of the Court of Appeal that the judge had arrived at a finding on greater hardship which was the opposite of that supported by the evidence — The judge had misdirected himself in drawing up ‘the statutory balance sheet’ — The court was entitled and bound to interfere and the appeal must be allowed The following cases are referred to in this report. Chandler v Strevett [1947] 1 All ER 164, CA Coplans v King [1947] 2 All ER 393, CA Darnell v Millward [1951] 1 All ER 88, CA Hodges v Blee (1987) 20 HLR 32; [1987] 1 EGLR 119; 283 EG 1215, CA Sims v Wilson [1946] 2 All ER 261; 62 TLR 485, CA Smith v Penny [1947] KB 230; [1946] 2 All ER 672; (1946) 62 TLR 750, CA This was an appeal by both defendants (although referred to in the singular in the judgment) Iain Ronald Steele MacIver and Glenys Alveira MacIver, from the decision of Judge Glyn Morgan, at Chepstow County Court, in favour of the claim by the plaintiff, Thomas Trevor Baker, to possession of the dwelling-house known as Pleasant View, The Steps, St Briavels, Gloucestershire. Charles Parsley (instructed by Edwards Geldard Piesse, agents for Edwards Geldard Williams & Tweedy, of Monmouth, Gwent) appeared on behalf of the appellants; Edward Cole (instructed by Jacklyn Dawson & Meyrick Williams, of Newport, Gwent) represented the respondent. Giving the first judgment at the invitation of Dillon LJ, HOLLINGS J said: This is an appeal from an order made by His Honour Judge Morgan on October 10 1989 whereby he made an order for possession against the defendant, Mr MacIver, of a dwelling-house known as Pleasant View, The Steps, St Briavels in Gloucestershire. He made a further order that possession should be given later on January 1. The plaintiff, Mr Baker, occupied a house known as Pilstone Farmhouse, Llandogo in Monmouth. Mr Baker had inherited Pleasant View in about 1958 and had let it to the defendant in November 1974. The rent to begin with was £50 per month, rising eventually to £80. The judge found that before the defendant became a tenant, he had agreed on a ‘gentleman’s agreement’ basis that he would leave at three months’ notice if the plaintiff ever requested the use of the house. The plaintiff was at the time of the letting in regular employment as a farm manager for General Hopkinson of the Bigsweir Estate in St Briavels. He occupied Pilstone Farmhouse, owned by his employers, rent and rate free. He and his wife are still there, he having been in the employment of General Hopkinson for upwards of 25 years. However, in January 1989 the plaintiff was made redundant. As the learned judge found, this was much to his distress and shock. He was given notice to quit Pilstone Farmhouse. As a consequence the plaintiff served notice on the defendant in respect of Pleasant View. It is common ground that at that time both the plaintiff Mr Baker and the defendant Mr MacIver were protected tenants under the Rent Acts; in the case of the plaintiff under the Rent (Agriculture) Act 1976 and in the case of the defendant under the Rent Act 1977. When he was made redundant the plaintiff received from General Hopkinson a redundancy payment of some £3,854 and he was made an offer by the general to give up his protected tenancy on payment of £20,000, with £5,000 commission if he showed round a prospective purchaser, though none had, at the time of the judgment, appeared. Pilstone Farmhouse was put on the market for £310,000. General Hopkinson has offered the plaintiff other accommodation which he owns in the form of a cottage, Bigsweir Cottage, which is very close to, indeed some 20 yards from, Bigsweir House, where the general lives. That offer is of a protected tenancy under one or other of the Rent Acts. The plaintiff, as I have said, was distressed by the fact of having been made redundant. His redundancy arose out of the fact that the general’s son had taken over the running of the estate which had hitherto employed the plaintiff as the farm manager. As the learned judge found, this was a source of stress and pain. The plaintiff claimed before the learned judge that it would be too distressing for him to move to Bigsweir Cottage, which was so close to where the general and his son lived. The plaintiff, in order to succeed in obtaining possession, has to establish an appropriate ground of possession under the Rent Act 1977. That is in this case a discretionary ground which is to be found in Case 9 of Schedule 15 to the 1977 Act, that the house occupied by the defendant is reasonably required by the plaintiff for him as a residence for himself. An exception is provided by Schedule 15 Part III, in that: A court shall not make an order for possession . . . by reason only [of this ground] if the court is satisfied that, having regard to all the circumstances of the case, including . . . whether other accommodation is available for the landlord or the tenant (my emphasis), greater hardship would be caused by granting the order than by refusing to grant it. The onus of proof therefore of such hardship is upon the tenant. By his judgment the learned judge considered the pre-requisites for his discretion to grant possession in favour of the plaintiff landlord. He found as the first requisite that it was reasonable for an order for possession to be made, the onus of proof being upon the plaintiff. Second, he found that the premises were reasonably required by the plaintiff for himself, and again the onus of proof was upon the plaintiff. Third, he found in respect of greater hardship that the tenant had not discharged the onus of proof upon him that there would be greater hardship on him if the order were made. I should add that the claim for possession was also based on breach of covenant to pay rent under Case 1 of Schedule 15 to the Act. It is common ground that the rent was in arrears, but it was also common ground that if an order for possession were based on that ground only, it would not be appropriate to make more than a suspended order for possession. The court has been told that the arrears which were adjudged due in the form of mesne profits, at the same time as the judgment for possession, have since been discharged. The appeal therefore concerns the application of the requirements of Case 9 only. As I have said, His Honour Judge Morgan decided all three questions in respect of Case 9 in favour of the plaintiff and accordingly granted an immediate order for possession, with an appropriate order with regard to rent. The judge plainly considered that this was a difficult case. He reserved and wrote his judgment and the court has a copy. At pp 3 and 4 he held that the plaintiff had established that Pleasant View was reasonably required as a dwelling-house for himself and his wife. He referred to the plaintiff now having ceased employment and to his need for capital for a business which he has started as a dealer in livestock. In considering the requirement that the premises should be reasonably required, he also took into account the fact that if the plaintiff moved into Bigsweir Cottage, which had been offered to him, he would be so close to General Hopkinson that he would be caused distress, which arose from the circumstances of his dismissal after so long in the general’s employment. He took into account the fact that Pleasant View was owned by the plaintiff and he rejected any suggestion that he wanted possession of that house in order to sell it. The judge then turned to the issue of greater hardship, and here his judgment sets out a number of tests. He considered first the financial position of the parties. He found that the financial position of the plaintiff was considerably more advantageous than that of the defendant. He referred to the payments promised by the general. He referred to investments of some £10,000 which were held by the plaintiff. The plaintiff also had a building society account for £5,000. He also found that the plaintiff had expectations in respect of half the estate of his 80-year-old father. He also found that the plaintiff’s present income was ‘not very great’ and that his wife had no capital or investments to speak of. Turning to the defendant, the judge found that he was now only in part-time employment, earning £40 a week, and that his employment potential was limited. However, Mr MacIver’s wife was in regular employment earning £7,000 a year. But neither the defendant nor his wife had any savings or investments. He then turned to the efforts made by the defendant to find accommodation. This has been the subject-matter of submissions by both counsel in this appeal. He found that the defendant had made very little effort to find accommodation, but he also found that suitable accommodation was not readily available and that the defendant would have low priority. He had evidence from a surveyor called on behalf of the plaintiff that accommodation does from time to time become available, although at a rent much in excess of what the defendant was currently paying but a rent which the defendant ‘could just about afford’. He said that he did not accept that the situation was quite so hopeless as had been contended. He accepted the evidence of Mr G F Foxwell FRICS FAAV, the plaintiff’s surveyor, that in the relevant area, so far as the defendant was concerned, property does from time to time become available. He then went on to consider the physical and mental health of the parties. He referred to the fact that the plaintiff said it would be stressful if he lived at Bigsweir Cottage. He referred to the fact that the defendant had conquered his addiction to alcohol much to his credit, though there was a suggestion that if an order for possession were made it might possibly cause a relapse. He felt unable to give that suggestion much weight. The judge made this finding, which has been the subject-matter of considerable submissions in this appeal: In my judgment there is nothing to choose between stress to either party if order were or not made. But he went on immediately to say: I am rightly reminded by [counsel] that the fact that the tenant will have to move is not of itself evidence of hardship and that there must be some other factor. He then considered the position of the respective wives, and there is no finding of significance there. He went on to consider the effects of making or refusing an order for possession. He bore in mind that the plaintiff had a protected tenancy available, though he would be paying rent for Bigsweir Cottage which may exceed the rent he would receive for Pleasant View and, as was the fact, the plaintiff would be paying rent indefinitely when he could occupy his own house. But so far as the defendant was concerned he would have no accommodation to go to immediately and little or no chance of finding council accommodation in the immediate future. There was some chance of obtaining rented accommodation within 10 miles of Monmouth, but at a rent far in excess of what he was presently paying. He found it was more difficult for the defendant to find other accommodation in the vicinity of Monmouth, if an order for possession was made, than for the plaintiff to obtain other accommodation in the area suitable to carry on his business if an order was not made. The plaintiff’s evidence, which was accepted by the learned judge, was that he would wish to move into Pleasant View with a view to more easily carrying on his business there. The judge then considered certain other factors which he had been urged by the plaintiff to take into account and he came to this conclusion so far as proof of greater hardship was concerned: Having regard to the foregoing matters and to all the circumstances of the case, I am of the view that whichever way the case is decided, hardship will be caused to one party or the other. Burden of proving greater hardship is on the defendant. I hold that he has failed to establish on the balance of probability that greater hardship would be caused by granting this order than by my refusing to grant it. He then went on to deal with the question whether it was reasonable to make the order. He decided that it was and there is no argument as to that. This appeal turns upon the learned judge’s finding as to greater hardship. Before I turn to consider his decision in that regard, I refer to some of the authorities to which counsel have referred this court with regard to the way in which the Court of Appeal should approach a decision made by a learned judge in possession cases, particularly where the issue is one of greater hardship. In Coplans v King [1947] 2 All ER 393, in his judgment at p 394, Lord Greene MR referred to a passage in the judgment in Chandler v Strevett [1947] 1 All ER 164 in which Scott LJ asked this question: Did Parliament intend to leave that very difficult task [the task of estimating comparative hardship to either side] in its entirety and finally to the county court judge to the exclusion of the Court of Appeal and even of the House of Lords? Lord Greene continued: With the greatest possible deference, I should have thought that that was the very thing that Parliament did intend in view of the class of persons that the statute was intended to benefit. The idea that the pressure of comparative hardship could be litigated up to the House of Lords appears again, with the greatest deference, to be one which, I should have thought, would clearly be contrary to the intention of Parliament. Of course, if in a case there is evidence of hardship on one side and none on the other, the county court judge can come to only one conclusion, and if he finds hardship where the facts are not sufficient to constitute hardship in law — for example, something trivial . . . he makes an error in law, but, once there is evidence which in law can amount to hardship on two sides, Parliament has deliberately made the county court judge the conclusive judge of the fact which is the greater hardship. That principle has been emphasised in a number of cases, in particular in the case of Hodges v Blee in (1987) 20 HLR 32*. This was another case dealing with greater hardship, in which Stocker LJ gave the judgment. At p 35 he said: [Counsel], who has ably and succinctly put the basis of his appeal before us, was constrained in the end to concede that, in accordance with the relevant authorities, he had to show, in order to succeed upon this appeal, that no reasonable judge could have reached the conclusion which this learned judge reached or that the judge failed to take into account relevant factors or drew improper conclusions from facts which were put in evidence before him. It may perhaps be an over-simplification to say that his argument really involves the proposition that he has to demonstrate that the learned judge’s conclusion can be said to be perverse. *Editor’s note: Also reported at [1987] 2 EGLR 119. He then went on to consider the case of Coplans v King. Later in his judgment he reiterated the difficulty of upsetting a judge below, saying that if the judge had correctly concluded that there was hardship on both sides, the task of persuading a court to upset that decision is hard, unless he had made some error of law or had drawn the wrong conclusions from the facts proved in evidence before him. He said: They really amount to the proposition that it has to be established that the judge’s conclusion was one which no reasonable judge could have reached having regard to all the evidence. I proceed to consider the learned judge’s judgment in the light of those observations. Mr Parsley has referred the court to the case of Chandler v Strevett, which was referred to in Coplans v King. That is a case which emphasises what I have underlined in an earlier part of my judgment, that is the words of the relevant section which refer to the factors to be taken into account, as including specifically the availability of other accommodation. At p 168, having referred to cases brought on the ground of alternative accommodation being available, Somervell LJ said: This is not so under para (h) of sched I, but, under that paragraph, in having regard to all the circumstances of the case the court is expressly enjoined, in deciding on the issue of greater hardship, to have regard to the question whether other accommodation is available for the tenant or the landlord. These words and the general principles of the Acts make it clear, to my mind, that alternative accommodation, though not a condition under para (h), is normally the most important of the circumstances to which regard must be had. The learned judge goes on to deal with the particular facts of that case and concludes by saying: On the evidence, the landlord and those with him had a flat in which they could continue to live whereas the tenant and his large family of children had nowhere to go. There seems to me, therefore, to be only one possible answer on the issue of greater hardship, and that is one in favour of the tenant. I agree that the appeal should be allowed. In my judgment, the most relevant matters which were before the learned judge were the respective financial positions of the parties and whether other accommodation was available to them and the nature of that accommodation. But there were other matters which the learned judge referred to and which he put under the heading of the ‘Effect on the physical and mental health of the parties’. I have quoted from that part of his judgment. For my part, the difficulty that I have found in his judgment in that respect is that when dealing with the effect on the parties, that is the stress that would be caused to the plaintiff on the one hand and the defendant on the other, to which I have referred, having discounted in the case of the defendant the factor of having to move, he then decided that the stress was equal between the parties. He then said, having referred to the considerations which I have read: ‘Having regard to the foregoing matters and to all the circumstances of the case, I am of the view that whichever way the case is decided, hardship will be caused to one party or the other.’ I have not found this an easy case. I fully appreciate that the decision of the learned judge below is not lightly to be upset. I have studied his judgment with care. But for my part I am driven to the conclusion that, in coming to the decision in respect of hardship which he did, he did not take into account the great disparity which there was between the plaintiff’s and the defendant’s ability to find other accommodation. Having discounted the mere fact of moving and having found that stress was equal, nevertheless there was stress to be found in moving to alternative accommodation and that stress was not just the stress of moving which would be caused by an order for possession in any event but the stress caused by the difficulty to the defendant of finding alternative accommodation and, as one authority has indicated is relevant, other accommodation which was protected under the Rent Act. It is a factor which can be taken into account that alternative accommodation would not have the same statutory protection as the existing tenancy had. It is a fact of this case that, as evidenced by Mr Foxwell, the plaintiff’s surveyor, such accommodation as was available for the defendant was of a shorthold nature, ie of limited security. So far as the plaintiff was concerned, the offer which was made by General Hopkinson was one of accommodation which was in all respects fully protected under the 1976 Act. Also the financial situation of the parties was wholly out of balance. It is true that the plaintiff required, as the judge accepted, the money which had been offered by General Hopkinson for the purpose of setting up the business of a dealer in cattle, but so far as that business was concerned there was no finding that he could not carry on that business if he moved to Bigsweir Cottage. In my judgment, the learned judge, in having regard to the effect upon each party, failed to pay any real regard to that imbalance between the situation of the plaintiff and the defendant. That imbalance, in my judgment, is to be found in the contrast between what the learned judge says in his judgment about the stress being equal and his decision that, notwithstanding all the other factors, the tenant had not discharged the onus of greater hardship. The evidence, in my judgment, does indicate, and should have been accepted by the learned judge as indicating, that there was by far a greater hardship on the tenant than upon the plaintiff and in those circumstances he ought to have refused to make the order. In those circumstances I would allow the appeal. Agreeing, DILLON LJ said: The judge had before him three issues for decision. First, was it reasonable for the landlord to acquire possession?  Second, what is colloquially known as greater hardship, that is to say the issue that arises under the provision in Schedule 15 to the Act that A court shall not make an order for possession of a dwelling-house by reason only that the circumstances of the case fall within Case 9 in Part I of this Schedule if the court is satisfied that, having regard to all the circumstances of the case, including the question whether other accommodation is available for the landlord or the tenant, greater hardship would be caused by granting the order than by refusing to grant it. And, third, was it reasonable in all the circumstances to make the order? I do not have any difficulty in finding on the facts of this case that it was reasonable for the plaintiff landlord to want possession. Moreover, if granting a possession order would not cause greater hardship than refusing to grant it, it would be reasonable to grant it. So that the crux of this case is greater hardship. It is abundantly clear on the authorities that greater hardship is pre-eminently a matter for the county court judge. I refer to the judgment of Lord Greene MR in Coplans v King [1947] 2 All ER 393 at p 394. It is a task that was referred to by Stocker LJ in the recent case of Hodges v Blee [1987] 2 EGLR 119 at p 120 as ‘the familiar and usually very difficult task imposed upon a county court judge of deciding where the balance of hardship lay’. It is therefore necessary for the tenant on this appeal to show that the judge has misdirected himself or that he has based his judgment on some finding of fact of which there was no evidence: so it was put by Somervell LJ in Smith v Penny [1946] 2 All ER 672 at p 673F. See also Darnell v Millwood [1951] 1 All ER 88 at p 90 B-C in the judgment of Sir Raymond Evershed MR. All that is well-established law strongly underlined by the judgment of Stocker LJ in Hodges v Blee, which I have already mentioned. Stocker LJ referred to the alternative possibility of showing that the order was perverse and a conclusion that no reasonable judge could properly have reached. The real question in this case, as I see it, is not one of perversity, but of misdirection. The main point on the landlord’s side was stressed as having to live, if he could not get possession of Pleasant View, in close proximity to General Hopkinson after the abrupt termination of his long employment with the general, the termination of which was naturally a great shock to the plaintiff and caused him serious stress. But time passes and the general appears to have acted generously over the compensation payable to the plaintiff as redundancy money and the offer of £20,000 or £25,000 if he gives up the farmhouse and in making a secure tenancy available to him, under the Rent (Agriculture) Act 1976, in Bigsweir Cottage. That there would be stress, however, was not disputed. There would equally be stress to the defendant if a possession order were made. There are also further factors. The plaintiff is in a much better financial position than the defendants and, most important, there are the difficulties which the defendants are likely to face in getting other accommodation. The judge set out to summarise these various factors in his judgment. He sets out, under the general heading ‘Greater hardship under Case 9’ six separate subheads. One is the financial position of106 the parties. He says, correctly, that ‘the position of the plaintiff is considerably more advantageous than that of the defendant. Plaintiff will have payment of £20,000 from the General. Has investments of over £10,000. Has £5,000 in [a building society account]. Has some expectations in the estate of his elderly father.’  The plaintiff’s present income is not very great; he has only just started in a new business. Then he sets out that the defendant has no capital, no investments and no savings. He earns only £40 a week in part-time employment. He has limited employment potential. He refers to the income of Mrs Maclver and her absence of savings or investments. Then the judge comes to what he calls the ‘Efforts made by Defendant to find accommodation’, a section which really also sums up the difficulties. He says that the defendant has made very little effort to find accommodation, but he finds that suitable accommodation is not readily available. There is a sparsity of council accommodation in the parishes nominated by the defendant and the defendant would be of low priority. He accepted evidence that accommodation does from time to time become available, but at a rent much in excess of what the defendant was currently paying, though a rent which the defendant could just about afford. He picks that up under heading (v) — the ‘Effects of making or refusing order for possession’. He sets out, correctly, that the plaintiff has a protected tenancy available; he would be deprived of the use of his only home for the foreseeable future and he would be paying rent for Bigsweir Cottage which may exceed the rent he would receive for Pleasant View; the plaintiff would be paying rent indefinitely, when he could occupy his own house. It appears that the rent that the defendant has in fact been paying for Pleasant View is likely to have been considerably less than a fair rent for that property. On the other hand, he says this about the defendant. The defendant would have no accommodation to go to immediately, little or no chance of council accommodation in the immediate future, some chance of obtaining rented accommodation within 10 miles of Monmouth, but rent far in excess of what he is presently paying in rent and unlikely to obtain a protected tenancy. There was little or no chance of purchasing accommodation through lack of capital. It was more difficult, said the judge, for the defendant to obtain other accommodation in the vicinity of Monmouth if an order for possession is made than for the plaintiff to obtain other accommodation in an area suitable to carry on his business if the order is not made. That was in section (v). In section (iii) he deals with the ‘Effect on physical and mental health of parties’. He says this: the plaintiff says it would be stressful if living at Bigsweir; the defendant was an alcoholic. It is much to his credit he seems to have conquered his addiction. There was a suggestion by his doctor that if the order for possession were made, that might possibly cause a relapse. He gave such weight as he felt able to this suggestion but he did not feel able to give it much weight. He said in his judgment there was nothing to choose between stress to either party if the order were or were not made. He adds: ‘I am rightly reminded by Mr Prys Lewis [counsel for the plaintiff] that the fact that tenant will have to move is not of itself evidence of hardship and that there must be some other factor’. I read in that context the judge’s statement ‘nothing to choose between stress to either party if the order were or were not made’ as balancing the stress elements under the general heading ‘Effects on physical and mental health of parties’. It is not dealing with the difficulties of finding accommodation. In para (iv) the judge deals with the ‘Position of others affected by order’. He refers to the effects of the order on Mrs Baker or Mrs MacIver and stresses the importance to Mrs MacIver of being in reasonable reach of Monmouth to enable her to continue in her present employment. But, apart from that, he reaches the conclusion that the effect on the wives is neutral. Under subhead (vi) he sets out certain minor factors which the plaintiff urged him to take into account but which I need not mention. He then summed up the situation, saying on p 7: Having regard to the foregoing matters and to all the circumstances of the case, I am of the view that whichever way the case is decided, hardship will be caused to one party or the other. Burden of proving greater hardship is on defendant. I hold that he has failed to establish on the balance of probability that greater hardship would be caused by granting this order than by my refusing to grant it. As I see it, in relation to that summary, the great factor of hardship on the plaintiff was the stress to which he would be exposed living close to General Hopkinson in otherwise suitable accommodation which was available to him. That the judge has cancelled out under subhead (iii) against the stress to the defendant and so the effect on the physical and mental health of the parties is neutral. If that be correct the position is left that the factors of greater hardship are all one way in favour of the tenant, in that the landlord has much more means and has secure accommodation available to him at Bigsweir Cottage, while the tenant’s position is far from promising. He will be faced with hardship in finding alternative accommodation. It seems to me, therefore, that the learned judge has misdirected himself as to his own findings in reaching his ultimate conclusion that the tenant has failed to establish on the balance of probability that greater hardship would be caused by granting this order than by refusing to grant it. The alternative interpretation of the judge’s judgment is that the judge has read too widely the factor, which he mentioned under subhead (iii) just below his references to stress, ‘that the fact that [the] tenant will have to move is not of itself evidence of hardship’. That appears to have been taken from a passage in Hill & Redman’s Law of Landlord and Tenant, 18th ed, vol 2 para C 1694, where it is said: If there is no evidence of hardship to the tenant at all, the question of greater hardship does not arise. The simple fact that the tenant will have to move is not evidence of hardship. There must be some extraneous factor. But it is clear from, for instance, the judgment of Bucknill LJ in Chandler v Strevett [1947] 1 All ER 164 at p 167B that it is a relevant factor to take into account that the landlord has alternative accommodation and the tenant has no alternative accommodation, and it is also a relevant factor to take into account, as appears from the judgment of Morton LJ in Sims v Wilson [1946] 2 All ER 261 at p 265A, that the fact that any other accommodation available to the tenant would not be protected by the Rent Restrictions Acts is a matter which he would be entitled to take into consideration along with all the other circumstances of the case, but the judge would not be right in thinking that unless accommodation protected by the Rent Restrictions Acts is provided he would be precluded to make an order for possession. To my mind, there is a close parallel between this case and the approach adopted by Somervell LJ in particular, and also Bucknill LJ in Chandler v Strevett. In this case the factors are all one way, once the judge has held that there is an equal balance in the matter of stress. They all point to the hardship on the tenant being the greater. Therefore, as in Chandler v Strevett, this court is entitled and bound to interfere with the judge’s decision and I agree with Hollings J that this appeal must be allowed. The appeal was allowed with costs; costs below to be on scale 2. Legal aid taxation ordered.