England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(DISTRICT JUDGE MORRIS)

		Royal Courts of Justice Strand London WC2 Friday, 29th June 2001

Friday, 29th June 2001

1. LORD JUSTICE DYSON: This is an application for permission to appeal the judgment of His Honour Judge Krikler dated 26th September 2000 whereby he dismissed the defendant's appeal from the decision of District Judge Morris of 7th August 2000, by which judgment had been given to the claimant for £80 with £70 costs, and the defendant's counterclaim had been dismissed. The defendant, Dr Al-Timimi, now seeks permission to appeal.
2. The dispute arose out of plumbing work that the claimant had done for the defendant in April 1999. On 1st June 1999 the claimant sent an invoice in the sum of £285 for the work done. After the defendant refused to pay the full amount that had been demanded, the claimant started proceedings in the Willesden County Court in August 1999 claiming £285 plus costs. The defendant disputed this figure claiming that the hourly rate charged was excessive and he offered to pay an inclusive sum of £180. This he did, but the claimant proceeded with his claim for the balance. As I understand it, no price had been agreed for this work so that in law the claim was on a quantum meruit, that is a reasonable sum for the work done.
3. On 7th August 2000 the district judge, after hearing both claimant and defendant give evidence (they both appeared before him in person), found in favour of the claimant in the sum of £80. The defendant's application for permission to appeal was refused. The defendant nevertheless appealed. His grounds of appeal ran to some three pages. He alleged that the claim was based on fabricated or tampered documents; he also alleged that it was oppressive to impose the claimant's charges for the work done when they were not agreed and the claimant's credibility should have been treated with suspicion.
4. On 26th September 2000, the judge dismissed the appeal. The first and primary complaint made by Dr Al-Timimi is that there was no hearing of his appeal by the judge at all. What happened was that the judge came into court and said that all the grounds of complaint had been thoroughly investigated by the district judge and there was no basis for disturbing the decision of the judge on the footing that it was not open to the circuit judge to conduct a complete re-hearing. He said to Dr Al-Timimi that that was the law and that his hands, in effect, were tied, and if Dr Al-Timimi was dissatisfied with that situation, then he had to take the matter up with his member of Parliament.
5. Mr Dolan has submitted a written statement on 4th April 2001 in which he says that:

"His Honour opened proceedings outlining the Case being payment dispute for works carried out for the defendant.

Circuit Judge Krikler then stated that all the grounds had been investigated by District Judge Morris and heard and discussed all the relevant items from Claimant and defendant and given Judgment accordingly.

His Honour not wishing to reiterate all the previous Hearing as this had been thoroughly examined stated:

'That should judgment be given to the defendant the Claimant would Appeal that this could go on ad-infinitum. That this was the Law. Should the defendant wish to alter this he had to write his Member of Parliament.'"

6. There is also before me a written statement from the judge, and what he says is this:

"I recall Dr Al-Timimi's appeal. He opened his appeal by complaining that the District Judge had accepted the evidence of Mr Dolan and had rejected his own version of the facts. He went on to say that all of Mr Dolan's evidence had been a fabrication and that he (Dr Al-Timimi) should have had his evidence accepted whereas the District Judge had wrongly found Mr Dolan to be a credible witness.

I asked Dr Al-Timimi whether he was alleging any improper conduct on the part of the District Judge. He said he was not and that his complaint was that the District Judge had accepted the evidence of Mr Dolan rather than his.

I asked Dr Al-Timimi if he felt that the District Judge had erred in Law. He said he was not suggesting any error of Law. Throughout the hearing I treated Dr Al-Timimi with the utmost courtesy and respect.

I explained it was not the practice of the Court to have re-hearings where only questions of fact were involved, but rather to deal with submissions of Law.

I explained that if I were to conduct a re-hearing of the facts and come to a different conclusion then doubtless Mr Dolan would wish to appeal, and so on ad infinitum. I again asked him whether he wished to raise any other matters. He repeated that Dolan's evidence had been a fabrication, and that the District Judge had believed the wrong party."

7. That statement is dated 21st May 2001, and it is consistent with and amplifies the situation as described by the two protagonists. It may well be that Dr Al-Timimi feels that he should have had more of an opportunity than he was given to deploy his arguments to explain to the judge why he considered Mr Dolan's evidence had been fabricated. He has endeavoured to provide me with some elaboration of his contentions in this regard this morning.
8. I do not however consider that, short though the proceedings were, Dr Al-Timimi was denied his right of appeal altogether. Indeed, Dr Al-Timimi conceded before the judge that his complaints were ones not of alleged errors of law but of fact. He submits to me this morning that his contention that the documents were tampered with amounts to an alleged error of law, but that is a misunderstanding of what is an error of law. There was no error of law on the part of the district judge. The issue that he had to decide was a short and simple issue of fact, namely what was a reasonable price to pay for the work that was carried out. The fact that documents had been tampered with, might or might not have some bearing on that question of fact. But that it was a question of fact is undeniable.
9. It seems to me therefore that the judge was right to say that in the light of the findings of fact that had been made. Dr Al-Timimi had no real prospects of succeeding on an appeal. I can understand that Dr Al-Timimi may have felt he should have been given more opportunity to seek to persuade the judge to his point of view, but I am afraid to say that his prospects on appeal were doomed and bound to fail. Accordingly, I reach the conclusion that on the first point Dr Al-Timimi would have no real prospects of succeeding in showing that the judge was wrong in reaching his decision. The test that has to be satisfied, this being a second-tier appeal, is that the case raises some important point of practice or principle or that for some other compelling reason permission to appeal should be granted. I am sure that Dr Al-Timimi would say that this case does raise an important point of practice or principle because he contends that he was denied his right of appeal altogether. But for the reasons that I have given, accepting as I do the account given by the judge in his written comments on 21st May, I do not agree with that submission.
10. The second point that Dr Al-Timimi seeks to raise arises out of what happened after the judge gave judgment. He says that after judgment was given Mr Dolan said:

"British justice allowed three appeals in this case, but where this guy comes from would not have that."

11. Dr Al-Timimi says that the judge "endorsed" those remarks by saying "Here you are". The background to this remark by Mr Dolan is unfortunate to say the least. It seems that, at any rate, according to Dr Al-Timimi, he had received letters from Mr Dolan which on the face of it are offensive. I am careful, however, to remind myself that I have not heard Mr Dolan's version of affairs in relation to this or any other aspect of the matter. But for present purposes, I am prepared to assume in Dr Al-Timimi's favour that Mr Dolan did make the remark attributed to him by Dr Al-Timimi to which I just referred, and that the judge said "Here you are". On that assumption I well understand that Dr Al-Timimi was extremely offended by remarks which, if said, were extremely offensive and certainly should not have been said. Moreover, had they been said in the hearing of the judge, the judge in my view should have reprimanded Mr Dolan for saying them.
12. I do not however consider that by saying the words "Here you are", the judge was in any way endorsing or approving of those remarks, and indeed Dr Al-Timimi does not complain that the judge himself was racist. In that connection the judge's written comments of 21st May 2001, include the following:

"...spent the last 14 years of my judicial career, prior to my retirement, as Resident Judge at Willesden County Court which is in a multi-ethnic, multi-racial, multi-cultural area. The staff at Willesden is also multi-racial, multi-ethnic and multi-cultural. In my Court no racist conduct or comment would have been tolerated for one moment from Mr Dolan or anyone else."

13. Whatever the rights and wrongs of this unfortunate aspect of the matter may be, they cannot in my judgment be relevant to the question of whether the judgment that the judge had given by the time the alleged remark was made is susceptible to challenge. At best, it seems to me what happened here was that an offensive remark was made which the judge should have reprimanded, but it cannot in my vierw affect the judgment that had been given.
14. For all these reasons, I have reached the conclusion that permission to appeal should not be given in this case.
(Application for permission to appeal refused)