England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(MR RECORDER HONE QC)

		Royal Courts of Justice Strand London WC2 Friday, 5th October 2001

Friday, 5th October 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Mark Howell, the claimant in the action, for permission to appeal against an order made by Mr Recorder Hone QC on 5 June 2001 in the Central London County Court. By his order, the judge entered judgment for Miss Shaileen Virani, the defendant in the action, on her counterclaim in the sum of £4,297 plus interest amounting to £807.98. Although the form of order does not formally record the dismissal of the claim, it is plain from the final paragraph of the judge's judgment that he did indeed dismiss the claim. He also refused permission to appeal. Mr Howell appears in person today to make his application.
2. The background to the matter is in brief summary as follows. At the material time Mr Howell carried on business under the name Town Base as an agent for those seeking to rent property. Miss Virani's parents owned a first floor flat at 2 Princes Square, London W2, and Miss Virani, acting on their behalf, approached Mr Howell to find a tenant for the flat. Mr Howell introduced a tenant, Scandinavian Airlines System (Investments) Ltd, and on 12 July 1999 a tenancy agreement was entered into between Miss Virani's parents as landlords of flat and the company as tenant. The tenancy was for a term of one year, commencing on 13 July 1999, at a rent of £425 per week until 11 January 2000 and thereafter £450 per week, the rent for the first seven months to be payable in advance with commencement of the tenancy and thereafter monthly in advance. In addition, a deposit of £2,550 was payable. The tenancy agreement contained a break clause after the first six months.
3. It is common ground that it was agreed between Miss Virani and Mr Howell that Mr Howell should be entitled to a sum of £910 from moneys received from the tenant company by way of rent in advance and payment of the deposit as a fee for his services. The £910 represented £130 for each of the first seven months of the tenancy. In the action Mr Howell asserted, by an additional pleading delivered (it seems) in response to an order made by the court for further information, that he was entitled to an additional fee of £30 per week payable quarterly in advance following the expiry of the first seven months of the term. No further pleading was delivered by Miss Virani in response to that claim, but at the trial Miss Virani denied that any agreement had been concluded for the payment of any fee over and above the initial £910. As will appear, the judge found in her favour that there was in fact no agreement for payment of any such further fee.
4. The tenant company duly made a payment to Mr Howell at the commencement of the tenancy of £15,550 representing £13,000 in respect of rent for the first seven months of the term plus the deposit of £2,550. After deducting Mr Howell's agreed fee of £910, the balance due to Miss Virani accordingly amounted to £14,640. In the event, however, the only payments made by Mr Howell to Miss Virani in July 1999 were a payment of £2,550 representing the deposit (the payment which was made on 19 July), and a further payment of £4,090 made on 21 July. Those payments totalled £6,640, thereby leaving a balance of £8,000 owing.
5. On or about 21 January 2000 Mr Howell lodged a sum of £8,000 with Messrs Phillip Ross, Miss Virani's solicitors, to be held in their joint names to abide the outcome of the dispute. Some £3,600 of that sum has since been released to Miss Virani, leaving the balance of some £4,400 held by Phillip Ross in their client account in the joint names of Mr Howell and Miss Virani to abide the outcome of the action. At the date of trial the sum in dispute retained by Messrs Phillip Ross was £4,297.
6. In the action, Mr Howell raises a number of claims against Miss Virani. In the first place he alleges that it was, in effect, Miss Virani's fault that she did not receive full payment of her entitlement following the conclusion of the tenancy agreement. Detailed submissions were put forward by Mr Howell in support of his contentions on this issue and it is not necessary for present purposes to rehearse them. He also complains that Miss Virani defamed him by telling a Mr Bertrand, a manager of the tenant company, that Mr Howell had "stolen" her money. He also alleges that Miss Virani embarked upon a campaign of nuisance telephone calls which amounted to serious harassment. He further complains of the fact that bankruptcy proceedings were wrongly issued against him by Miss Virani. He claims loss of profits from alleged further business with the tenant company which he says he has lost by reason of Miss Virani's conduct and statements about him. He claims that his business was disrupted and that one of his telephone lines was effectively put out of use by Miss Virani for a total of some six hours. He also makes other claims in the same vein. His total claim for damages in the action amounts to £5,390. As I noted earlier, by his further pleading, Mr Howell also claims the additional entitlement of £30 per week following the expiry of the first seven months of the tenancy under the agreement to which I referred earlier. The total amount of this further claim, assuming the tenancy to run its full term, amounts to some £650.
7. By her Defence, Miss Virani denied each and every claim made by Mr Howell. At the date of delivery of her Defence Mr Howell had not asserted in any pleading an entitlement to any further fee above £910, and accordingly, Miss Virani's Defence did not address that issue. By her Counterclaim Miss Virani claims £8,000, being the sum at that stage held in their client account by Messrs Phillip Ross. As I have already indicated, by the date of trial the sum in dispute had been reduced to £4,297.
8. In a thorough and careful judgment, the judge dismissed each and every claim made by Mr Howell. The first issue which he addressed was the issue as to Mr Howell's alleged entitlement to further fees over and above the £910. After examining the evidence, including documents put into evidence by Miss Virani in the course of her oral evidence (to which I shall refer again in a moment) the judge found that there was in fact no agreement for any such additional fee. He also concluded that, so far as credibility of witnesses was concerned, the evidence of Miss Virani was to be preferred to that of Mr Howell. In the course of his judgment the judge concluded that by the time solicitors were instructed by Miss Virani "Mr Howell became determined to cause the maximum trouble possible". Later in his judgment, the judge said that the explanation given by Mr Howell as to the long drawn out payment of £12,090 "beggars belief". He further concluded that Mr Howell had acted dishonestly vis-a-vis Miss Virani. He found that Mr Howell had at one stage resorted to a "device" in order to try and show good faith when he notified Miss Virani that he was sending a cheque for £8,000 to another firm of solicitors, Messrs Garner & Hancock. The judge further found that a statement made by Mr Howell (on the application to set aside the statutory demand on which the bankruptcy petition was based) to the effect that money was held in a client account was, as the judge put it, "simply untrue". At page 11E of the transcript of his judgment the judge said this:

"It is, I think, safe, fair and reasonable to draw an inference that the business account had insufficient funds to meet the various cheques made payable to Miss Virani and which were then either returned to drawer or stopped. I have already found that Mr Howell was wrong in not ensuring prompt payment of the rent and deposit sums and this evidence simply reinforces that finding. It is no way to run a business and Mr Howell's own evidence confirmed that he was running a business which had problems with its bank. I do not however accept his assertion that it was Miss Virani's conduct which caused his financial difficulties, even in part. After all, he had received £15,550 from SAS [that is a reference to the tenant company] on 14/15 July 1999."

9. The judge accordingly proceeded to dismiss Mr Howell's claims for damages and his claims of harassment.
10. By his grounds of appeal Mr Howell contends as follows: I am reading from section 7 of his appellant's notice:

"1. The Defendant entered pleadings orally from the witness box that she had never before made, namely that,

(a) she had not received the fax in evidence from the claimant dated it 9-7-99 confirming the commission payable;

(b) she denied that she had agreed to the terms stated in that fax -

- that is a reference to the evidence relevant to the issue as to whether or not Mr Howell is entitled to a further sum in addition to the original £910 -

"2. The Defendant produced from the witness box for the first time originals of three faxes never before [that again is a reference to the same issue].

3. The Judge allowed the new pleadings and evidence without ensuring that the claimant's case was not thereby prejudiced [again a reference to the same issue].

4. The Judge did so having exhibited emotional antagonism to the claimant in an outburst during his testimony. [I shall refer to this again in a moment].

5. The Judge drew inferences from the new pleading and evidence that had not been aired in the trial and which were contrary to reasonable conclusions, erroneous and illogical because, if anything, the disclosures by the Defendant impugned her credibility rather than that of the claimant upon full inspection.

6. The Judge failed to rule on the Claimant's applications regarding witnesses before the trial began or, substantially, at all, which impaired the Claimant's case."

11. In support of these grounds of appeal Mr Howell has addressed me orally this morning. He puts at the forefront of his submissions the issue as to his entitlement to an additional fee. He submits that the judge's conclusion on this issue was contrary to the weight of the evidence, and that the trial was conducted unfairly in that he did not have a proper opportunity to consider and organise his case in response to faxes produced by Miss Virani in the course of her evidence. He says that he was not aware, when the trial began, that this was an issue at all. Indeed it is the case, as I have already noted, that there is no formal pleading by Miss Virani in which she disputes Mr Howell's entitlement. It is, however, fair to point out that the assertion of that entitlement was only made in a further pleading delivered by Mr Howell pursuant to an order of the court that he give further information as to his claim.
12. Mr Howell also complains that the judge took an adverse view of his credibility based upon certain bank statements which at first sight the judge considered might have been tampered with by Mr Howell, in that the final column of the statement containing the running-balance had been snipped off the document. In the event, however, Mr Howell's explanation that he had done that in good faith on the basis that he did not consider the balance to be relevant to the issues in the action was acceptable to the judge. Nevertheless, Mr Howell submits that the judge's view of his credibility must in some sense have been tainted by that initial suspicion entertained by the judge.
13. Mr Howell also complains, as set out in his grounds of appeal, that he had expected Mr Bertrand of the tenant company (and a representative of Messrs Wedlake Bell solicitors) to be called to give evidence by Miss Virani. In the event, when he attended at the trial, it transpired that Miss Virani was not intending to call such witnesses and indeed they were not called; and accordingly Mr Howell, acting in person, invited the judge to adjourn the trial so that Mr Howell himself could call those witnesses. In addition, Mr Howell indicated to the judge (as he tells me) that he wished to call an expert witness from British Telecom to support his claims of harassment by reason of Miss Virani's use of the telephone.
14. Mr Howell submits that the judge's finding as to credibility was an erroneous finding, and he asserts that this is a case in which the Court of Appeal is at least as well placed as the judge to decide the truth of the matter.
15. Despite Mr Howell's submissions I can, for my part, see no substance in any of the proposed grounds of appeal. The judge gave a careful, thorough and reasoned judgment, and there is nothing whatever in the material before me to suggest that Mr Howell's assertion that the judge had, in effect, closed his mind so far as Mr Howell's credibility is concerned has any substance in it. The conclusion of the judge as to the relative credibility of Mr Howell and Miss Virani was preeminently a matter for him, and I can see no prospect whatever of the Court of Appeal interfering with his assessment in any way.
16. So far as the issue of further fees is concerned, in my judgment the judge was fully entitled to deal with that issue, which was plainly a contested one, in the way that he did, and his finding of fact on that issue is one which cannot, in my judgment, be challenged in the Court of Appeal. Accordingly, and as I say, despite Mr Howell's submissions (which he has made, if I may say so, with courtesy and clarity) I conclude that the proposed appeal has no real prospect of success and I must, accordingly, dismiss the application.
(Application dismissed; no order for costs).