England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S AND CITY OF LONDON COURT
(HIS HONOUR JUDGE MARR-JOHNSON)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 5 July 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application by Miss Anita Ingrid Macerio-Lindstrom, the defendant in the action, for permission to appeal against an order made by His Honour Judge Marr-Johnson on 12 September 2000 giving judgment for the claimant in the action, Mr Ali Hayder Mehmet, in the sum of £41,704, together with interest amounting to £12,928, making a total of £54,632. He also dismissed Miss Lindstrom's counterclaim. Miss Lindstrom makes the application in person. She has addressed me orally elaborating on a number of grounds of challenge set out in her written skeleton argument.
2. The claimant in the action, Mr Mehmet, claims that over a period of many years he managed various residential properties on behalf of Miss Lindstrom on the express understanding that he would receive reasonable reward for his services and that, in addition, he expended considerable amounts of his own money on Miss Lindstrom's behalf. He claims that Miss Lindstrom has refused to make any payment or reimbursement of any kind to him.
3. By her defence, Miss Lindstrom denies that the claimant ever advanced money or did any work on her behalf. In the alternative she alleges that any work that he did was not requested by her and was largely valueless. By her counterclaim she seeks repayment of substantial sums allegedly due to her from the claimant.
4. At the trial the claimant was represented by counsel but Miss Lindstrom appeared in person. The judge began his lengthy and careful judgment by observing that the court's task had been made considerably more difficult by the absence of legal representation for Miss Lindstrom.
5. In summary, the claimant's case at trial was that from 1976 until about 1987 he and Miss Lindstrom lived together as man and wife. Thereafter he says that, although they ceased to be sexual partners, they continued to be on good terms. He alleges that during the period 1979 to 1988 Miss Lindstrom invested in a number of properties which were purchased in her sole name. During the period from 1989 to 1993 Miss Lindstrom spent considerable periods of time in the USA. The claimant's claim in the action falls under two heads which the judge described as services provided and money advanced.
6. As to the services provided, the claimant claims that between 1976 and 1993 he carried out considerable work at Miss Lindstrom's request in managing four of her properties. He also claims that he looked after her affairs generally during the period from June 1989 to June 1993 when she was spending time in the USA.
7. The judge concluded that in this connection it was material that on 19 July 1989 Miss Lindstrom signed a power of attorney appointing the claimant as her attorney to take a number of steps on her behalf, if so advised, during her absences abroad. These included the power to collect rent and to obtain legal possession from any tenants at two specified properties; to pay domestic bills in respect of those properties and also another property; to keep all the properties in good repair; and to sell a further property on the claimant's behalf with vacant possession for not less than a minimum specified sum. This power of attorney remained in force until terminated on 1 July 1993. Miss Lindstrom asserts that it was torn up.
8. The claimant also alleges that during this period he carried out other work on Miss Lindstrom's behalf. He alleges that there were a number of discussions over the years about how he should be remunerated by the applicant for all the work he was doing on her behalf. He alleges that in 1987 she orally agreed to compensate him for all his labours by selling to him one of the properties at a discount of £40,000. Miss Lindstrom agrees that at one stage she offered to sell the claimant a property at a discount (which she puts at £20,000) but she asserts that she made that offer on the footing that he was personally known to her. She totally denies any sexual relationship with the claimant at any time.
9. In summary, the claimant's case in relation to services provided is that Miss Lindstrom repeatedly assured him on many occasions during the period 1984 to 1991 that he would be reasonably remunerated for his services. The only question at the time was as to the amount of remuneration and as to the form it should take. Accordingly the claimant advances a claim in the action for remuneration on a quantum meruit basis.
10. In his Statement of Claim he seeks payment of a sum equal to a percentage of the rents collected from tenants of the tenants in question by him during the relevant period by analogy with the kind of sum which might have been charged by a professional managing agent. At the outset of the trial it was agreed between the claimant, through his counsel, and Miss Lindstrom that managing agents would have charged about 10 per cent of the rents which they collected.
11. As to the claim for money advanced, schedule C to the Statement of Claim sets out details of monies alleged by the claimant to have been expended by him at Miss Lindstrom's request. These sums amount in total to £29,871. As against that, schedule D gives particulars of amounts paid or payable to Miss Lindstrom which the claimant, whilst acting as her agent, retained in part payment of monies allegedly due to him from Miss Lindstrom. These sums amount in total to £8,857. Accordingly, the net claim amounts to £20,914 which is claimed as money lent, alternatively money had and received by Miss Lindstrom to the use of the claimant.
12. Miss Lindstrom totally denies any entitlement on the part of the claimant to monies for services provided or in respect of monies allegedly advanced. Moreover, as noted earlier, she denies any sexual relationship with the claimant. She alleges that the claimant carried out no work at all of any of the relevant properties.
13. So far as the power of attorney is concerned, she says that the claimant told her he would collect the rents from the various properties while she was away in the USA. According to her, the claimant demanded that she should sign the power of attorney in order to make the task of collecting the rents easier and she gave in to his pressure. She further says that at about the end of 1989 the claimant agreed that the power of attorney should be terminated and tore up the document in her presence. She says that although the claimant had limited authority to collect the rents during the period March 1989 to January 1993, he had no authority to manage any of the properties. She further claims, somewhat inconsistently (as it seems to me and as the judge observed) that during this period the claimant "....allowed the properties to become run down, failing to ensure that the agencies were managing the same properly".
14. It is Miss Lindstrom's case that, apart from executing the power of attorney, at no time did she ever grant the claimant authority to carry out repairs, works of maintenance, cleaning and decorating at any of the properties. Further, she strongly denies that she ever agreed to compensate him for his services. She contends that this is a completely false assertion on his part. She further claims that he withheld substantial amounts of rents received from tenants for which he ought to have accounted to her. There were no detailed particulars of these sums available at trial.
15. Addressing the central issue as to the credibility of the protagonists (Miss Lindstrom and the claimant) the judge concluded that, subject to "a moderate element of innocent exaggeration" the claimant had been essentially truthful in the evidence which he had given to the court. With this qualification the judge preferred his evidence wherever it conflicted with that of Miss Lindstrom. In particular, whilst acknowledging that it was not an issue which was directly relevant in the context of the action, the judge concluded that the claimant's assertion of a sexual relationship over a number of years with Miss Lindstrom was true. He commented that Miss Lindstrom had not been frank with the court in that respect.
16. The judge said that, in the circumstances, he was unable to feel the degree of confidence in the evidence of Miss Lindstrom which he was able to feel in the case of the claimant. The judge continued:

"One matter which seemed clear to me is that she is now possessed of an extremely deep dislike of the claimant, and I received the strong impression that she was anxious to do and say anything which might have the effect of defeating his claim. I did not receive the impression that she was anxious to assist the court to arrive at the ultimate truth of the matter."

17. Having dealt with the question of credibility the judge went on to make a finding that:

"....it was expressly agreed between the parties that the claimant should receive reasonable remuneration for services provided and work done on [Miss Lindstrom's] behalf. I also find that he is entitled in principle to be reimbursed for any sums of money properly expended on her behalf."

18. The judge proceeded to the question of quantification of the claim. As to the claim for services provided the judge concluded that an appropriate percentage would be 7 per cent of the rents collected. That amounted to £297,011. Accordingly, he awarded the claimant £20,790 in respect of services provided. As to the claim for money advanced, the judge held that the claimant was entitled to recover the whole of the net amount claimed, that is the sum of £20,914, as money expended on Miss Lindstrom's behalf and with her authority. The judge accordingly entered judgment for the claimant on the claim in the total sum of £41,704 plus interest.
19. As to Miss Lindstrom's counterclaim, the judge concluded that there was nothing in the counterclaim worthy of serious investigation and no material on which it would be proper to order an account to be taken. Accordingly, he entered judgment for the claimant on the counterclaim.
20. In her written skeleton argument and in her oral submissions this morning, Miss Lindstrom takes three points as the basis for her application for permission to appeal against the judge's order. In the first place she submits that the judge was wrong to place any reliance on the oral evidence of the claimant, whom she describes as being completely untrustworthy, or on the evidence of a Mr Kambouris, a friend of his and a witness called on his behalf.
21. Secondly, Miss Lindstrom submits that there is documentary evidence which establishes that the repairing liability in respect of the various properties lay with the tenants of those properties. She submits that this was a finding which the judge ought to have made and that, had he done so, it would have had a substantial effect on his judgment and his conclusions.
22. Thirdly, she relies on figures contained in a report, prepared for her when she was legally represented, by a forensic accountant, Mr Peter Luscombe. She submits that this report shows that there was an unaccounted figure of some £212,000 in the claim which the claimant was making in respect of rental income. She also submits that the judge failed properly to understand that report.
23. As to Miss Lindstrom's first point, it is pre-eminently a matter for the trial judge to form an assessment as to the reliability of the oral evidence which he has heard. I can see no basis upon which the assessment which the judge made in this case could be challenged in this court. The judge was fully entitled to conclude that the evidence of the claimant was to be preferred to that of Miss Lindstrom wherever their evidence was in conflict. Accordingly, I can see no substance in Miss Lindstrom's first point.
24. As to her second point, the judge dealt with the question of tenants' repairing liability in the following passage:

"The defendant also raised other points, including the suggestion that there was no need for the claimant to manage properties on her behalf which were let long term to the local authority, because it was they who were under a duty to maintain the properties. However, this claim was not backed up by any satisfactory evidence and was strongly contradicted by Mr Kambouris. I find it a difficult matter to resolve but, whatever the true position may be, I do not consider it significantly affects the amount of compensation to be awarded because the claimant did in fact manage the properties and on my findings he did so on the defendant's authority."

25. In my judgment, that was a correct analysis of the relevance of the issue of repairing liability, and I agree with the judge that whether or not the tenants were under an obligation themselves to repair the properties, does not bear upon the questions (a) what work did the claimant do or what services did he provide for Miss Lindstrom in relation to these properties; and (b) how should he be remunerated for those services and labours?
26. For my part I can see no basis for an appeal on the second of Miss Lindstrom's three grounds. I am far from satisfied that any relevant evidence was excluded by the judge, if that is Miss Lindstrom's suggestion. For the reasons I have given, and for the reasons which the judge gave in the passage from his judgment I have quoted, the issue does not bear upon the entitlement of the claimant to the recovery of the monies which he is claiming.
27. I turn to the third of Miss Lindstrom's points, relating to the report of Mr Luscombe. This report was before the judge and he referred to it in the following passage from his judgment:

"When the defendant was represented by solicitors it was proposed to call Mr Luscombe as an expert accountancy witness and a report from that gentleman is in the court bundle. In the event he was not called by the defendant, principally I understand because she could not afford his fee, but it has been agreed that his report may be used as a vehicle for computing the relevant figures, which derive at the end of the day from books and records in the claimant's possession."

28. The judge accordingly proceeded on that basis. Part of the report on which Miss Lindstrom particularly relies is a summary contained in paragraph 2.2 in which the total sum of rent per as per claim is given as £297,011.89 and the total sum checked as banked is given as £84,645.28. Miss Lindstrom suggests that difference between those figures represents a sum of £212,000 which is wholly unaccounted for and which should not have been brought into account by the judge.
29. Again, these were matters for the judge to decide. He had the report in front of him and I can see no basis upon which his quantification of the claim can be open to challenge on appeal. Miss Lindstrom suggests that the judge misunderstood Mr Luscombe's report. I have no reason to think that the judge did misunderstand it; indeed it appears that he proceeded on the basis of the figures it contained.
30. A number of other submissions were made by Miss Lindstrom which it is unnecessary to set out in detail. Suffice it to say that they did not disclose any arguable ground of appeal.
31. For those reasons I conclude that there is no sensible prospect of an appeal against judge's order succeeding and I refuse permission to appeal.
Order: Application dismissed