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 BIRMINGHAM DISTRICT REGISTRY
(HIS HONOUR JUDGE BOGGIS QC)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 31 July 2001

1. LORD JUSTICE JONATHAN PARKER: This is an appeal by Mr Cyrus Bassiri, the defendant in the action, for permission to appeal against an order made by His Honour Judge Boggis QC in the Birmingham District Registry on 19 May 2000. Permission to appeal was refused by the judge on the ground that his decision rested upon findings of fact.
2. The appellant's notice seeking permission to appeal was not received by the Court of Appeal until 4 June this year, more than a year after the making of the order. This is a matter to which I shall have to return. Mr Bassiri makes this application in person, although he was represented at the trial by counsel, Mr Whittaker. By his order, Judge Boggis QC allowed the claim of the claimant in the action, Mr Ghassem Sarkany, and granted relief accordingly.
3. The dispute which gave rise to the action revolves round a series of agreements, both written and oral, made between Mr Sarkany, Mr Bassiri and other family members (Mr Sarkany being married to Mr Bassiri's half sister), concerning the ownership of a pizza business carried on at leasehold shop premises at 163 Hagley Road, Birmingham.
4. Mr Bassiri acquired the shop in about 1990. At that time it sold sandwiches. Mr Bassiri converted it into a pizza shop and installed a manager. In about 1993 or about 1994 the then manager of the shop left and Mr Sarkany started managing the shop in his place. In 1995 Mr Bassiri obtained a new lease of the shop.
5. On 20 July 1996 the shop was extensively damaged by fire and there was an insurance claim. Mr Sarkany claimed to have made a contribution to the cost of repairs but this was disputed by Mr Bassiri. In February 1998 there was, as the judge found, an oral agreement between Mr Bassiri and Mr Sarkany for the sale of the pizza business to Mr Sarkany for £58,000.
6. There was a dispute before the judge as to precisely how the purchase price of £58,000 was funded, but the judge concluded that it was not possible to make any finding as to that. The judge did find, however, that the price of £58,000 was duly paid and accounted for and that it included the lease.
7. The judge further found that in July 1999 Mr Bassiri and Mr Sarkany entered into a partnership agreement for which Mr Bassiri paid Mr Sarkany £30,000. In November 1999 there was a further oral agreement whereby Mr Bassiri agreed to sell his share of the business, including the lease, to Mr Sarkany for £31,000.
8. Mr Bassiri's defence was that he was induced to enter into these transactions by false, indeed fraudulent, representations made by Mr Sarkany. In particular, Mr Bassiri contended that Mr Sarkany had persistently understated the true turnover of the business and had overstated what he had spent on refitting the shop after the fire.
9. On 16 April 2000 Mr Bassiri went into the premises, changed the locks and effectively prevented Mr Sarkany from carrying on the pizza business. Mr Sarkany immediately sought interim relief but the judge, very sensibly, concluded that the right course, rather than granting interim relief, was to hold a speedy trial.
10. At the trial the judge found the oral evidence of both Mr Sarkany and Mr Bassiri wholly unreliable. He did however derive some assistance from certain contemporary documentation to which he referred in his judgment. Having referred to the documents in question, the judge continued:

"So what really happened? My findings are these:

1. The defendant was not influenced to sell for £58,000 by misrepresentation as to the turnover. The family had decided that Sodabeh [Mrs Sarkany] and her husband should have a business, and the figure of £58,000 was reached in full knowledge of all the circumstances. This was not some arm's length commercial transaction with warranties of due diligence. This was a family deal within a family completely conversant with running pizza shops. We shall never know how the £58,000 was sourced. A family like this, upholding their laudable culture, move money around the family as need is required. The defendant's present complaints are wholly manufactured.

2. The £58,000 was duly paid or accounted for. The fact that the story has changed does not detract from this finding.

3. The price included the lease. The family's decision was for Sodabeh to have a business. The idea that the business did not include the premises is absurd and was rightly abandoned by the defendant.

4. Similarly the partnership included the lease. This is clear beyond doubt from the partnership document.

5. The partnership was entered into following a dispute within the family. I do not know the exact cause of the dispute, although there were allegations of understatement of figures. But I am sure that there was no deception on anyone's part as to what was happening or the price paid. There was no misrepresentation.

6. In November 1999, the defendant did sell his share for £31,000 and the sum was duly paid. There was no misrepresentation. It was a family decision freely entered into with full knowledge of all the facts.

7. Pursuant to these various transactions, the defendant holds the lease on trust for the claimant and is obliged to seek the landlord's consent to assign."

11. The judge accordingly declared that Mr Sarkany was entitled to the sole ownership of the business and that Mr Bassiri was a constructive trustee of the unexpired term of the lease. The judge also awarded damages to Mr Sarkany in respect of his having been excluded from the shop and the business from 16 April 2000. He also granted consequential relief.
12. By his proposed grounds of appeal, Mr Bassiri raises a number of complaints as to the manner in which the trial was conducted. His primary proposed ground of appeal reads:

"I was intimidated by the judge while I was being cross-examined by a Q.C."

13. That is a reference to Mr John Mitting, QC who appeared for Mr Sarkany:

"He shouted at me on several occasions. In fact I felt as if I was being cross-examined by two QCs and not one. It became apparent that my concentration was failing and my answers were not what they were meant to be. I may have said YES when I meant NO."

14. That proposed ground of appeal appears to be directed towards a series of questions put to Mr Bassiri by Mr Mitting at the conclusion of Mr Bassiri's cross-examination. The relevant passage from the transcript reads as follows:

"On any view you have had about £30,000 of his money. Do you accept that? A. Yes.

Q. Which you kept. A. Yes.

Q. You have locked him out of the shop that you sold him. A. That is correct, sir.

Q. Have you paid him back the £30,000 that he has paid you? A. No, sir.

Q. Have you demonstrated that you are able to pay him back? A. I can pay him back. I have no problem with that, sir. I needed guidance to why this was happening.

Q. You did a deal with him in November by selling out your partnership including the lease and have reneged on it, have you not? A. That's correct, sir."

15. In a number of further grounds of appeal Mr Bassiri claims his witnesses were intimidated; that he did not have time to bring other witnesses forward; that the judge put pressure upon him by insisting that the trial take place within a period of some two weeks; and that the interpreter provided by Mr Sarkany did not faithfully interpret the replies given by Mr Sarkany's witnesses.
16. For my part I can see no basis whatever for an appeal against the judge's findings of fact in this case or against the relief which he granted based upon those findings. Faced with untrustworthy witnesses on each side, the judge no doubt had a difficult task to perform. However, his findings are clearly made and based upon such evidence as he regarded as reliable. I can see no prospect of a successful challenge to any of those findings being made in the Court of Appeal.
17. As to Mr Bassiri's criticisms of the manner in which the trial was conducted, I am unable to discern anything of substance in them.
18. As to the alleged intimidation of witnesses, there is no evidence to support Mr Bassiri's allegations, nor was any complaint concerning alleged intimidation made in the course of the trial. Mr Bassiri has told me that he has asked his counsel to raise this matter but that counsel decided it was not appropriate to do so. In the circumstances I can see no substance in that ground of appeal.
19. In any event the very considerable and unexplained delay in lodging the appellant's notice would in itself be a sufficient ground for refusing the present application. Not only was the appellant's notice almost one year out of time, but on 11 July this year an unless order was made by Deputy Master di Mambro ordering Mr Bassiri to lodge a bundle in accordance with the Civil Procedure Rules.
20. Quite apart from the others factors to which I have referred, it would be wholly unjust to the successful claimant to allow an appeal against the judgment of His Honour Judge Boggis QC to be prosecuted after such a great delay. For all those reasons, therefore, I dismiss this application.
Order: Application dismissed.