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 HASTINGS COUNTY COURT
(JUDGE COLTART)

		Royal Courts of Justice Strand London WC2 Thursday, 30th August 2001

Thursday, 30th August 2001

1. LORD JUSTICE DYSON: Mr. Zanjani seeks permission to appeal the decision of Judge Coltart who, sitting at the Hastings County Court on 19th December last year, dismissed his claim and gave judgment to the defendant on her counter-claim in the sum of £3,042.22. Mr. Zanjani was claiming £3,850 and £2,040 on two unpaid invoices that he had submitted for electrical and other work that he had carried out at "The End", Warren Road, New Romney, Kent. This property was in a rather poor state of repair and the defendant engaged the claimant to carry out certain works of refurbishment, including rewiring and plumbing work.
2. The claimant started work in about February 1998, and by June he had received £7,350 from the defendant. She expressed dissatisfaction with the quality of the work and terminated the contract before it had been fully completed. She admitted that she had not paid the two invoices, the subject of the claim. She contended, however, that she had overpaid and/or that she was entitled to a set-off in respect of a claim for damages for breach of contract which exceeded the value of the claim.
3. At the trial the defendant called as a witness a Mr. Barton, a qualified electrical contractor who had inspected the property and produced a schedule of defects. He had carried out work to remedy the defects. His bill was for £1,560.61 plus VAT, together with £60 plus VAT for an electrical inspection and £57.88 for a gas inspection.
4. The defendant sold the property. There was a report from a Mr. Bailey which described the defective state of Mr. Zanjani's work. There was evidence before the judge, which he accepted, that the defendant agreed to accept a reduction of £1,000 in the sale price to reflect the condition of Mr. Zanjani's work.
5. Mr. Zanjani argued before the judge that the alleged defects were no more than items of incomplete work which he was prevented from carrying out when the defendant unjustifiably terminated his contract. The judge rejected this part of Mr. Zanjani's evidence, relying in part on the fact that he had submitted and the defendant had paid in full invoices which purported to be in respect of the whole of the electrical work. The judge also accepted the evidence of Mr. Barton that some of the work carried out was unsatisfactory and unsafe. He concluded that the electrical work was sub-standard and that the defendant was entitled to terminate the contract.
6. The judge then turned to deal with the plumbing work. He relied on the report of Mr. Sullivan and held that there were also justifiable criticisms of the quality of the plumbing work. Finally he dealt with the defendant's complaint about the quality of other items of work and preferred her evidence to that of Mr. Zanjani on those matters too.
7. The judge's approach to the figures was as follows. He held that the value of the work carried out by the claimant did not exceed the sum paid, namely £7,350. He arrived at this conclusion by accepting Mr. Bailey's valuation of £1,955 for all but the electrical work, and adding to that figure the total sum invoiced by the claimant for the electrical work of £3,130. On this basis he dismissed the claim.
8. The judge then assessed the damages to which the defendant was entitled on the counter-claim by taking Mr. Barton's figures of £1,560.61, £57.88, £60, all plus VAT, and the £1,000 to which I have already referred. He also allowed the sum of £70 for the cost of changing the locks, which the defendant decided to do after the claimant came round to the property and let himself in, using a key he had retained, and (according to the defendant) behaved in a threatening manner. Thus it was that he assessed the damages on the counter-claim at £3,042.22. That in outline is a summary of the judgment.
9. The complaints that Mr. Zanjani makes are these. First he says that he was not allowed to call a most important witness whom he wished to call, namely Mrs. Vidokovic. The circumstances in which he was unable to call that lady appear to be that, for reasons which were not Mr. Zanjani's fault, the time available for the trial (namely the two days fixed for it) proved to be insufficient. There was apparently discussion at the trial as to when it would be possible to fix a further day to complete the hearing. It seems that Mrs. Vidokovic was not going to be available on any of the suggested dates. In those circumstances, no doubt under a good deal of pressure from the judge, the parties completed the hearing within the two days originally fixed. But in the result, it was not possible for Mrs. Vidokovic's evidence to be adduced.
10. I have considered the statement made by Mrs. Vidokovic of 10th March 2001. It is true that it does provide some support for the case that Mr. Zanjani sought to advance. The difficulty is, however, that it does not seem to me that her evidence, even if accepted in its entirety, would have persuaded the judge to reach different findings from those which I have summarised. Mrs. Vidokovic is not an expert in electrical and plumbing matters. She did not carry out a detailed inspection and was simply not in a position to take issue with the detailed evidence given by Mr. Barton, in particular, on which the judge relied so heavily. Accordingly, whatever the rights and wrongs may have been about the circumstances in which Mrs. Vidokovic did not give evidence, it seems to me that her evidence could not have made a material difference to the outcome of this trial.
11. Secondly, Mr. Zanjani relies on the fact that he was unable to obtain the evidence of a Mr. Phoenix. There is a statement dated 25th March 2000 from Mr. Phoenix in the papers, in which he says that Mr. Zanjani had previously carried out extensive work in a care home which he, Mr. Phoenix, had previously owned, and that Mr. Phoenix had been completely satisfied with all the work that Mr. Zanjani had done then and indeed later at "The End".
12. Again that evidence is helpful to Mr. Zanjani so far as it goes. But it is unclear to me why Mr. Phoenix was unable or unwilling to give evidence at the hearing. The absence of that evidence in the circumstances of this case cannot form the basis of a ground of appeal. I should add in any event that I doubt very much whether generalised evidence of the kind that Mr. Phoenix would have given, if he had given evidence in accordance with his written statement, would have persuaded the judge to reach a different conclusion from that which he arrived at on the basis of the detailed evidence of Mr. Barton. Be that as it may, as I say, the absence of Mr. Phoenix in the circumstances of this case cannot form the basis of a ground of appeal.
13. It is plain that Mr. Zanjani feels extremely strongly that he has suffered an injustice in this case. He has obtained many references from previously satisfied customers, which show that he is a man whose work is, generally speaking, of high quality and that he has a good reputation for his work. The question for me is whether he has been able to identify any ground of appeal which has a real prospect of success. The difficulty that he faces is that this case raises no points of law. It all turned on issues of fact, and the judge preferred the evidence of the defendant and her witnesses to that of Mr. Zanjani. The judge saw and heard the witnesses, and I am afraid to say that in my judgment Mr. Zanjani has not be able to identify any error in the decision of the judge with which the Court of Appeal would be likely to interfere.
14. I am therefore unable to grant permission to appeal in this case.
ORDER: Application dismissed. (ORDER NOT PART OF APPROVED JUDGMENT)