England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AN EXTENSION OF TIME AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Tuesday, 25th September 2001

1. LORD JUSTICE ALDOUS: Mr John Grover seeks permission to appeal the judgment of His Honour Judge Michael Oppenheimer of 9th August 2001 which dismissed his appeal against the order of the District Judge. That order gave to the claimant, Mr Sassoon, possession of a property known as 36 Churchfield Road, Acton, London W3 6EB as of 3rd November 2000. The order also provided for payment of arrears of rent in excess of £40,000 with interest in excess of £14,000.
2. The freehold property has always belonged to Mr Sassoon. By a lease dated 22nd December 1993 Mr Sassoon granted to a company called Allied Corporative (UK) Ltd a tenancy of the premises for 20 years. There were two guarantors of the obligations in the lease, one being the applicant Mr Grover and the other Mr Owen Clarke who has since died. The lease was a full repairing lease containing an obligation upon the lessees (that is Allied) to repair and keep the premises in good and substantial care and condition. That required painting both internally and externally. Allied was dissolved on 19th December 1995 and therefore the lease vested in the Treasury Solicitor as bona vacantia. The Treasury Solicitor disclaimed the lease on 10th August 2000.
3. On 4th September 2000 these proceedings were started for possession of the premises and the money. The particulars of claim dated 25th August 2000 set out the facts as I have stated them. It went on to allege that the dissolution of Allied was not known to Mr Sassoon until he received the result of a search on 20th June 2000. They went on to allege that by a letter dated 29th June Mr Sassoon had demanded payment by Mr Grover of all outstanding arrears of rent pursuant to his covenant of surety, such sums not having been paid. The amount alleged due was over £40,000.
4. The reply which was filled in by Mr Grover himself alleged that he had spent £35,000 on repairing the property and stated that the arrears should be cancelled. His stated view was that he had spent all his money repairing the property and he now had a business up and running. He sought permission to remain in the property.
5. It was upon those pleadings that the case came before the District Judge. In his order of 6th October he ordered possession and made an order for the money judgment to which I have referred. Mr Grover was not satisfied and he appealed. At all times Mr Sassoon had been represented both by solicitors and counsel. Mr Grover had not had the benefit of legal advice until he came to lodge his appeal. He instructed solicitors who gave advice but refused to appear on the appeal unless a substantial sum - I think £3,000 - was paid in advance; that Mr Grover was either unable to pay or unwilling to pay and the payment was not made. I understand that that resulted in a letter dated 24th July in which an adjournment was sought.
6. That was followed by an application to a judge on 6th August, and again to the judge on 8th August. In the note of the judgment which I have of 8th August the judge refused to grant the adjournment. The judge was told that one of the witnesses - Mr Sassoon's son - was a vital witness and he had to return to Indonesia on 27th August 2001. Thus, the position was that if the matter was adjourned the claimant would be deprived of a witness described by the judge as vital. If the trial went ahead Mr Grover would have to go on without the help of legal advice but with the help of Miss Morgan, his wife. The judge said he had no hesitation in refusing an adjournment. He said, "The appeal must be heard today," and he said there was no compelling reason for the appeal to go off.
7. The first point taken by Miss Morgan in an eloquent address to me in which she put forward the facts as she saw them was that that failure to grant an appeal resulted in her and Mr Grover being unable to put their case properly with the result that they did not have a fair trial. This was a case in which the judge had to exercise his discretion, and concluded that the case should go ahead. If it turned out that there could not be a fair trial that would be a ground on which it might be possible to appeal. But I shall come back to that because I do not believe that was the case.
8. There were essentially four issues that arose to be decided by the judge at the trial which he continued to hear on 8th August 2001. First, it was alleged by Mr Grover that he had not had a fair trial in front of the District Judge contrary to Article 6 of the Convention on Human Rights. The point taken was that Mr Grover had acted in person before the District Judge and Mr Sassoon had been represented by solicitors and counsel. Miss Morgan added that she attended to help Mr Grover but she had her children with her and she was not allowed in, I suspect because her children might disrupt the proceedings; but anyhow she was not allowed in. Clearly, Mr Grover had the normal difficulties encountered by litigants in person. That does not mean one does not necessarily get a fair trial. He clearly had an opportunity to put his case. I suspect, having heard him, he put his case - at least one point in the case - that there was an agreement between him and Mr Sassoon as to the rent. However I can pass over that because the appeal before the judge was by way of a re-hearing and therefore Mr Grover had a chance to put his case in full before the judge.
9. The second issue revolved around the allegation by Mr Grover that Mr Sassoon had knowledge that the company had been struck off before June 2000; the judge rejected that in paragraph 28 of the note of the judgment which I have before me. He said this:

"24 ..... Does any interest devolve upon Mr Grover by virtue of Mr Sassoon's knowledge? The issue does not arise by virtue of the formal Notice of Appeal but by the informal Notice of Appeal. It appears to allege that the Claimant knew that the tenant company had been dissolved and notwithstanding his knowledge he accepted cheques including personal cheques drawn on another company. The allegation goes no further (as he did in evidence) than that the Claimant knew of the dissolution of the company simply because rent cheques were drawn either by Mr Grover or by another company controlled by Grover.

25 I cannot infer such an understanding on the part of the Claimant by such an assertion just because rent cheques were paid by another company. This does not bring notice that the tenant company had been dissolved. I dismiss that allegation."

10. The third issue concerns the allegation that Mr Grover and Mr Sassoon had agreed that the rent could be set off against the cost of repairs that Mr Grover had carried out. The judge considered the evidence upon that matter, both oral and written. He concluded at paragraph 41:

"I find there was no agreement between Mr Grover and the Claimant that was legally enforceable or capable of being defined in any way that is capable of being a defence to the rent. All the written evidence is against it and I prefer the evidence of the Claimant over the Defendant."

11. As to the amount of rent owing under the guarantee there appeared to be no dispute. Having made those findings of fact based upon the evidence that he had heard, the judge had no alternative but to dismiss the appeal as he did.
12. This is an application for a second-tier appeal. Part 52.13 makes it clear that the Court of Appeal will not give permission to appeal unless it considers that the appeal will raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. It is quite clear to me that there cannot be an important point of principle or practice in this case. I will come to the submissions made to me, both written and oral, but they were not such that permission to appeal can be given on a second-tier appeal. There is no other compelling reason for the Court of Appeal to hear this case. The procedure gives to the applicant two chances to put his case; that, the applicant has had. It is only in the exceptional circumstances referred to in Part 52.13 that a third chance is afforded.
13. In his application for leave to appeal Mr Grover sets out three basic grounds of appeal. The first is that he did not receive a fair trial in contravention of Article 6 of the Convention on Human Rights. He said that he was not able to prepare his case in view of the refusal of the adjournment. I have already referred to Miss Morgan's submissions on this and how she sought an adjournment and it was refused. I have set out the judge's conclusion on this matter. The position is that Mr Grover has had two opportunities to put his case before the court. The refusal to grant an adjournment does not raise an important point of principle or practice and does not provide some other compelling reason for the court to hear such a ground of appeal. The County Court judge had a discretion to refuse the request for an adjournment. He gave reasons for refusing to grant the adjournment. He was clearly entitled to come to the conclusion that he did.
14. Second, it is said that the judge failed to take into account the rent records in the witness statement of Mr Sassoon. Miss Morgan has drawn to my attention those records. She submitted to me that they proved there was some form of verbal agreement in the way the rent was to be paid and, in particular, they supported Mr Grover's case that there was agreement between him and Mr Sassoon that repairs should be carried out in lieu of rent. Miss Morgan told me of the extent of those repairs. She said it made the house habitable, extended it and it was now habitable whereas it was not before. It is also alleged that Mr Albert Sassoon, the claimant, was not a reliable witness due to his old age and mental capacity.
15. The judge saw the witnesses give their evidence and came to a conclusion of fact, namely that there was no such agreement. Clearly, neither Miss Morgan nor Mr Grover accept that conclusion. But the challenge to the judge's conclusion would not stand a real prospect of success. The judge sees the witnesses and the Court of Appeal does not. This ground does not raise any important point of principle or practice or any other compelling reason why the matter should be heard by this court.
16. The applicant's real complaint is that there was an agreement that he would carry out the repairs in lieu of payment of the full rent. Upon that basis he was entitled to remain in possession despite the fact that the lease had vested in the Crown. That was rejected by the judge. The judge having seen the witnesses, the submission that he came to the wrong conclusion would not stand a real prospect of success. I cannot understand how Mr Sassoon would enter into such an agreement when the tenant was under an obligation to carry out full repairs and Mr Grover was a guarantor of that obligation. Clearly the judge accepted the evidence of Mr
17. Daniel Sassoon which dealt with the state of the property and the way it was refurbished. That being so there is no prospect of this court reversing that conclusion. That in fact is the crux of the case. Was there or was were not agreement between Mr Sassoon and Mr Grover? That was a matter which has been considered by two judges, and there is no point of principle concerned in its resolution.
18. In my view, this court does not have the jurisdiction under Part 52.13 to grant this application. Furthermore, any appeal would stand no real prospect of success. In those circumstances I refuse leave to appeal. Mr Grover, I can do nothing for you. Leave to appeal is refused.
Order: Application refused