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 QUEENS BENCH DIVISION
CARDIFF DISTRICT REGISTRY
(His Honour Judge Chambers)

		Royal Courts of Justice Strand London WC2 Monday, 29th January 2001

Monday 29th January 2001

1. LORD JUSTICE PETER GIBSON: This is a renewed application by the claimant, Mohammad Din, for permission to appeal out of time after such permission had been refused on paper. He wishes to appeal two parts of the order made by His Honour Judge Chambers QC, sitting as a Judge of the Queen's Bench Division in the Cardiff District Registry. One was the striking out of the writ, the statement of claim and the further and better particulars of that pleading, save that in relation to one paragraph (paragraph 28 of the statement of claim) Mr Din was to be at liberty to bring further proceedings properly particularised.
2. As I understand from the judge's judgment and order what the judge did, he was striking out the whole of the pleadings under Part 3 of the Civil Procedure Rules. He also was purporting to give summary judgment under Part 24 for the defendants in respect of all the claims save that in respect of paragraph 28. It was in respect of the claim in that paragraph that he gave liberty to Mr Din to pursue the claim in further proceedings.
3. Mr Din's appellant's notice was filed on 16th September, two and a half months out of time. He explains the delay by saying that he attended at this court on 30th June 1999 to file his appellant's notice and paid £100, but the application was returned to him as he had made his application on the wrong form, which had been incorrectly provided by the Cardiff County Court. The form appears to have been a respondent's notice, because we have in our papers a respondent's notice on which has been stamped a receipt of £100 on 30th June. Mr Din further says that he was ill from 3rd July to 21st August with a toe injury. He has not explained why he was not able to prepare his appellant's notice in that time, given the nature of his injury, still less has he explained why it took 26 days after his illness came to an end on 21st August to file his appellant's notice when only 14 days from the order sought to be appealed are allowed for the filing of the appellant's notice. Before us today a friend, Mr Nayim Khan, has addressed us, if I might say so, with great clarity and courtesy. But he too was unable to proffer an explanation for the delay. Nevertheless, on such applications as that which we have before us, this court always attaches most importance to the merits of the proposed appeal. It is to that that I now turn.
4. The background to the dispute is this. For more than 10 years Mr Din has owned a number of residential properties in Cardiff. They include, in particular, 83/85 and 108 Connaught Road. He has owned these properties either in his own name, or through a nominee, or through a company. Most of the properties are bed and breakfast accommodation properties or are let on short tenancies. He has long been in dispute with the local housing authority in Cardiff. There are statutory provisions in Part XI of the Housing Act 1985 relating to houses in multiple occupation. Those provisions give the local housing authority wide powers to regulate such properties and to make control orders and other enforcement orders in respect of them. They also confer rights to appeal from such orders as well as to compensation in particular cases.
5. Mr Din commenced these proceedings on 31st December 1998. He initially joined two defendants, Cardiff City Council and Cardiff County Council. The City Council was in fact abolished in 1996, when the County Council succeeded the City Council. The two defendants are therefore the same body, and I will refer to them as "the Council". Mr Din, whilst receiving advice from solicitors from time to time, has been acting in person; and I hope he forgives me if I say that he is plainly no lawyer. By his writ he claimed "damages for breach of contract and/or negligence, breach of fiduciary duty and/or care, discriminating the Plaintiff, harassment, mental torture and inflicting and/or promoting such criminal damage being inflicted to the Plaintiff's property and loss of income and/or use and occupation of Plaintiff's property".
6. Mr Din later joined National Westminster Bank Plc as the third defendant, but the action against the bank has been stayed. The statement of claim dated 12th March 1999 contains 28 paragraphs relating to the Council. It also contains seven paragraphs in the prayer for relief, claiming, amongst other things, loss of rental income from 108 Connaught Road, loss of assets, loss of 83/85 Connaught Road, loss of time, loss of legal fees and other costs on these properties, and losses suffered due to abortive grant work at 108 Connaught Road.
7. The pleadings read more like a witness statement than pleadings. Paragraph 28 is headed: "Damages to Mr Din's ex-residence at 13/14 Vere Street due to the City's sponsored vandalism", and its contents were interpreted by the judge as a claim in nuisance against the Council.
8. On 16th April 1999 the Council served a defence, expressed to be without prejudice, to the contention that the claim was vexatious, an abuse and disclosed no reasonable cause of action. The Council denied that Mr Din was entitled to the claimed, or any, relief and also alleged that the claim was statute-barred.
9. On 29th July 1999 the Council applied for summary judgment under CPR Part 24.2 and in the alternative for the striking out of the claim under Part 3. In a detailed witness statement a solicitor acting for the Council, Mr Aubery, explained in detail why the Council regarded Mr Din's pleadings as inadequate in failing to plead any cause of action. Lengthy further and better particulars were provided by Mr Din in November 1999. But they suffer from the same defects as Mr Din's other pleadings.
10. The hearing of the Council's application was fixed for 15th June. Mr Din applied for the adjournment of that hearing and a transfer of the case to the Royal Courts of Justice. That application was considered first on 15th June. The judge rejected that application; and that is no longer the subject matter of this attempt to obtain leave to appeal. The judge then considered the Council's application for summary judgment or a strike out. The judge let Mr Din explain his case in relation to each of the properties. The judge indicated those areas where he would be assisted by documentary evidence and Mr Din produced further documentation the next day. The judge then went through the particulars of claim, indicating his views paragraph by paragraph. He said that no cause of action was disclosed by the pleadings, which he described as being in a hopeless mess. He regarded paragraph 28 as also inadequately pleaded, but he thought it possible that Mr Din might have an arguable case on that if it were completely redrafted. Hence, the special order which he made in respect of that paragraph.
11. Mr Din now seeks permission to appeal, concentrating his attack on the judge's order to strike out. First, he says that the judge unfairly ignored the evidence produced to the court. But the judge was fully justified in the exercise of his discretion to strike out pleadings if they disclosed no sustainable cause of action. That was not dependent on evidence but on how the claim was pleaded.
12. The judge, as I have said, heard from Mr Din how he put his case; but Mr Din was not able to satisfy the judge as to the sustainability of his case. He was complaining about actions taken long ago by the Council in the exercise of its statutory administrative functions. Mr Din appears to have exercised his statutory rights to appeal, but the appeals failed or were not pursued, nor were judicial review proceedings commenced to challenge the decisions taken by the Council.
13. In my judgment, it is now far too late to pursue these claims by the present proceedings. It is apparent from the documents which have been put before us and from what Mr Khan has told us that Mr Din is particularly upset about the Council's actions in relation to 108 Connaught Road and 83/85 Connaught Road. But there are difficulties in pursuing his complaints in these proceedings. Mr Khan accepted that the claim was not properly pleaded. He submitted that Mr Din should be allowed to put in an amended case in relation to 108. But, as has been made clear to us from the skeleton argument, Mr Din had already brought proceedings much earlier in relation to 108. His complaint is that he gave an undertaking to the court because he was in effect forced to do so. I am afraid I do not see any realistic prospect of success in relation to 108, the complaint going back to what happened a long time ago.
14. His case in relation to 83/85 Connaught Road is in even greater difficulty. That is because he has already brought proceedings in relation to those properties; but they were struck out on the basis that there was no reasonable cause of action. We have a note of the judgment of Cazalet J sitting, it appears, in this court on 17th October 1997, when an application for leave to appeal was dismissed. The judge refers to the fact that Mr Din put his claim under a number of heads arising from control orders and a management scheme in relation to 83-85 Connaught Road. It is therefore apparent that in the earlier proceedings which were struck out Mr Din was again making the sort of complaint that he has made to us, such as the loss of rental income from those properties. That gave him rights of appeal and a right to compensation, and he attempted to obtain satisfaction by exercising those rights. It is not appropriate to seek to revive these complaints by further proceedings when he has failed in his earlier actions.
15. I see no realistic prospect of succeeding on an appeal in relation to any of the grounds of appeal which Mr Din would wish to advance. I do not doubt that he is genuine in his strong feelings that the Council has treated him in some way badly or inappropriately, but I am afraid that he cannot now bring the proceedings which he sought to institute on 31st December 1998 in the way that he has pleaded his claim.
16. For these reasons, being satisfied that this appeal has no real prospect of success, I for my part would dismiss this application.
17. LORD JUSTICE KEENE: I agree.
Order: Application dismissed.