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 HALIFAX COUNTY COURT
(His Honour Judge Barry)

		Royal Courts of Justice Strand London WC2 Monday 19th November, 2001

1. LORD JUSTICE CLARKE: This matter has been before the Court of Appeal on two previous occasions. Mr Zazulak first made an application for permission to appeal which came before my Lord, Lord Justice Mance, on 27th April 2001. During that hearing Lord Justice Mance considered in detail the application for permission to appeal, but after doing so, subject to two points, he refused the application.
2. Mr Zazulak now seeks an adjournment of this further hearing in order to enable him to produce more material from his solicitors. Unfortunately, that material relates to matters which Lord Justice Mance dealt with in detail in paragraphs 15 and 18 of his judgment. As I understand it, on that occasion Mr Zazulak indicated that the value of the items in dispute was at least £10,000. There was a short adjournment while he tried to indicate how the documents showed that they might be worth £10,000. But unfortunately the documents showed that they were all, as my Lord put it, pretty small amounts, not amounting to anything like £10,000 (see his reasoning in paragraph 18). That part of the case was, I am sorry to say, resolved on that occasion and so this court could not reopen that now.
3. There were two other matters which my Lord adjourned for further information. Lord Justice Mance was first concerned that the position might be that the defendants were not entitled to terminate the leasing agreement. He was also concerned as to whether the case that the goods were sold at an undervalue, which had been part of Mr Zazulak's case, had been properly dealt with. He therefore directed that counsel both for the claimant, Mr Zazulak, and indeed for the first defendant should have an opportunity of putting relevant materials before the court. Mr Godfrey, who was counsel for Mr Zazulak at the trial, did put a document before the court in which he dealt with both those points. In relation to the first point, counsel said this:

"It was conceded before His Honour Judge Barry at the outset of the trial in opening that there were arrears which justified the termination of the agreement and repossession. Mr Zazulak was advised of this respect and specifically agreed to this course."

4. It was thus clear on the basis of what Mr Godfrey said that it was common ground at the trial that the defendants were entitled to treat the contract as at an end and to take possession of chattels the subject of the leasing agreement.
5. In relation to the second point, Mr Godfrey said this:

"As to the allegation that the First Defendant failed to mitigate his loss as regards the sale price of the leased goods, whilst it was pleaded that such should be in relation to the open market price, Mr Mascall in his report advised that the relevant basis should be the estimated restricted realisation price of £3,150 plus VAT. The latter figure was the best that Mr Zazulak could have hoped to achieve. I have no notes but, to the best of my recollection Mr Mascall in giving evidence stated that he had made such estimate without obviously having had the chance to view the goods and he admitted that in view of the condition of the goods and the prevailing market demand for such goods as put to him the figure of £2,350 [inc VAT] represented a reasonable re-sale value. In the circumstances, the plea of failure to mitigate was not sustainable."

6. In the light of those statements from Mr Godfrey, who was the claimant's counsel at the trial, clearly setting out the position as it stood then, Lord Justice Mance considered the matter again on paper and on 11th July he said that the note written by counsel indicates that in the case of the first point the relevant matter was conceded, and in the second case the relevant point was unsustainable in the light of the evidence. He therefore concluded on paper that an appeal would have no real prospect of success. But he also pointed out that Mr Zazulak had a right to renew the application to this court.
7. Mr Zazulak exercised that right, and the matter came before the court. Though Mr Zazulak was not here, Lord Justice Mance again considered the whole matter in some detail and gave a judgment which runs to some 24 paragraphs of reasoning. He reached the conclusion that there was really no realistic prospect of an appeal succeeding. So he refused permission to appeal.
8. Mr Zazulak was not able to come on that day and so he has come today in effect to renew the application. Lord Justice Mance has asked me if I would also consider the whole matter to see whether there is anything which the court could do to help Mr Zazulak. I regret to say that I have reached the conclusion that there is not. This is obviously a case which has been very upsetting for Mr Zazulak, but the fact is that an appeal simply has no realistic prospect of success and so this application must be refused.
9. Although Mr Zazulak has asked for an adjournment today, I, for my part, can see no point in adjourning the matter, because it would involve a reconsideration of a matter which was decided in April and which the court would have no jurisdiction to reconsider. So there is simply no point in adjourning it.
10. So, sorry as I am for the applicant, I regret that that application must be refused.
11. LORD JUSTICE MANCE: I agree.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________