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 CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE WAKEFIELD AND HIS HONOUR JUDGE HALLGARTEN)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 6 December 2001

1. LORD JUSTICE CHADWICK:There are listed before me two applications, under Court of Appeal references 2001/2172 and 2001/2183, for permission to appeal against orders made in the Central London County Court. In each case the applicant is Mr Anthony Alexander. The first of those applications, 2001/2172, is for permission to appeal from an order made by His Honour Judge Wakefield on 3 October 2001 in proceedings brought by the Crown Estates Commissioners against Mr Alexander for possession of premises known as 13 Park Square Mews, Regents Park, NW1. The second application, 2001/2183, is for permission to appeal from an order made on 9 October 2001 by His Honour Judge Hallgarten QC in the same proceedings.
2. The claimant in the proceedings, Crown Estates Commissioners, is the landlord of the premises at 13 Park Square Mews. Mr Alexander is tenant of those premises under an assured shorthold tenancy which commenced on 1 February 2001, or shortly thereafter. The rent payable under the tenancy is £1,299.96 per month.
3. These proceedings were commenced on 19 April 2001. The landlord claimed possession on the grounds of non-payment of rent, and that the tenancy had been determined by notice. It is said that no rent has been paid since 1 March 2000 and that the arrears, as at the date the proceedings were commenced on 19 April 2001, were £18,199.41.
4. The defence, filed on 9 May 2001, was that Mr Alexander had made oral agreement on 6 September 2001 with Messrs Cluttons, the agent for the Crown Estates Commissioners, that in consideration of a company, Anthony Alexander Limited, giving a written undertaking to pay the rent up to a maximum of £25,000, the Crown Estates Commissioners would not pursue Mr Alexander personally for any rent up to that figure. A letter dated 14 September 2000, sent by Cluttons and addressed to Mr Alexander personally, is said to evidence that agreement. The relevant paragraphs read as follows:

"Following our meeting last week, you did advise me that you would be writing to me providing an undertaking and repayment terms in respect of the outstanding rental now due on the property.

I would be grateful therefore if you could provide me with your written undertaking as soon as possible, as the Crown Estate Commissioners have requested such an undertaking as soon as possible."

5. The undertaking on which Mr Alexander relied is dated 27 October 2000. It was given by the company, Anthony Alexander Limited, under the hand of Miss Moira Costello described as the acting company secretary. It was in these terms:

"I have been instructed by Mr Alexander to give you an undertaking with regard to any monies which are recovered as a result of his claims against Philips Elecronics (UK) Limited and Halifax plc, and, our claim against Halifax plc.

Subject to our being satisfied that Mr Alexander is properly entitled to require that monies recovered by Anthony Alexander Limited be transferred to his account, we undertake that, to ourselves following the conclusion of the action(s) and on our being in a position to do so, we will forward to Mr Alexander's account from the balance of monies held by us the amount due to your Clients, in respect of Mr Alexander's liability, including any further liabilities after this date to a maximum of £25,000 sterling.

This undertaking is to be irrevocable, unless we are prevented from compliance by law, or, by any claims which may be made by a third party."

6. It is perhaps not surprising that the Crown Estates Commissioners did not find that undertaking satisfactory as the security for the arrears of rent.
7. After the commencement of the proceedings, Mr Alexander applied to join National Westminster Bank Plc as a Part 20 defendant to the proceedings. He also applied to transfer the case to the Queen's Bench Division. The basis of that application were two letters, one of which had been written by the National Westminster Bank to Cluttons and the other written by the bank to Mr Alexander. The first in time is a letter of 15 July 1998 from Mr Rockingham, the Customers Relations Manager for London South Region of the bank. That letter records that Mr Alexander had remained true to his word to the bank and that Mr Rockingham believed him to be a man of undoubted integrity. Nevertheless, the letter records that the bank was not prepared to advance further monies at that time.
8. The other letter is dated 27 January 2000. The copy provided in the bundle does not have a signature - or a place for a signature - but it appears to have been sent by the Hammersmith branch of the bank. It is addressed to Cluttons, and it reads:

"Re Anthony Alexander

In respect to the above renting a property through your firm please find below the information you require.

We have known the above as a client of National Westminster Bank for 15 years. Mr Alexander is considered to be respectable and trustworthy and we do not believe he would enter into a commitment that he could not see his way to fulfil."

9. That letter was sent very shortly before the tenancy was granted in February 2000. It was, no doubt, a reference which Cluttons required and upon which they relied in deciding to advise Crown Estates Commissioners to grant the tenancy. Mr Alexander does not, as I understand it, complain about the National Westminster Bank's assessment of him as a man of undoubted integrity, or as a respectful and trustworthy person who would not enter into commitments that he could not see his way to fulfil. It would be surprising if he did complain about references in those glowing terms.
10. His complaint, as it appeared from the explanation he has given this morning, is that the National Westminster Bank, having given references in those terms to Cluttons, are now obliged to discharge the obligations which Mr Alexander entered into when he took the tenancy granted on the faith of those representations. In other words, if Mr Alexander is not paying the rent - and there is no dispute that he has not paid the rent - the bank should pay the rent on his behalf.
11. On 6 June 2001 the possession proceedings came before District Judge Lightman. For the reasons set out in a full judgment, of which there is a transcript, he ordered that possession of the premises at 13 Park Square Mews be given by 20 June 2001. He gave judgment for £24,271.55, the amount then said to be due in respect of unpaid rent.
12. On 11 June 2001 Mr Alexander replied for a stay of execution. A further application for a stay of execution was made on 21 June. Those applications came before His Honour Judge Hallgarten QC on 21 June 2001. He made no order and refused permission to appeal. In the meantime Mr Alexander had sought permission to appeal from the order of District Judge Lightman. On 10 July 2001 he was granted a stay of the order for possession pending the hearing of that application. His appellant's notice is dated 8 June. The hearing of that application for permission to appeal was fixed for 3 October 2001. It came before His Honour Judge Wakefield. This court has been provided with a note of two judgments which he gave on that day. The first judgment was in respect of the possession claim by the Crown Estates Commissioners; and the second judgment was in respect of Mr Alexander's application to join National Westminster Bank as a Part 20 defendant.
13. In the light of Mr Alexander's decision to withdraw his application to appeal against the order for possession, it is unnecessary for me to say much, if anything, about the judgment on that matter. It is sufficient to note that Judge Wakefield took the view that the undertaking by Anthony Alexander Limited did not satisfy any agreement that had been made with Cluttons.
14. On the Part 20 application the judge said:

"Mr Alexander applies to join NW Bank as Part 20 Defendant and to transfer the case to the High Court. He also applies to set aside the judgment. I am not dealing with the application for permission to appeal at present. I am only dealing with the application to join and transfer.

Mr Alexander explained that the basis of his application is that he says the reference was fraudulent, written by a manager without the authority of his supervisors out of some kind of generosity to Mr Alexander.

Whether the tenancy would have been granted without the reference is not something I need to speculate upon.

It is patently clear that Mr Alexander has no cause of action against NW Bank.

A favourable reference was precisely what he wanted.

I assume that the manager did not have authority. That is pure hypothesis. On that hypothesis there is no case by Mr Alexander against the Bank. There might be a case by the Crown Estate Commissioners against the Bank for breach of a duty of care. But there is certainly no case at the suit of Mr Alexander in my judgment.

Therefore, NW Bank will not be added as a party. The application is dismissed."

15. His Honour Judge Wakefield made the order on 3 October, against which Mr Alexander seeks permission to appeal. There are seven paragraphs. Paragraph 1 dismisses the application of 14 May 2001 to join the bank as a Part 20 defendant and orders Mr Alexander to pay the costs. Paragraph 2 refuses permission to appeal paragraph 1. Paragraph 3 refuses the application for permission to appeal the order of District Judge Lightman. Paragraph 4 refuses permission to appeal paragraph 3. Paragraph 5 discharges the stay imposed on 10 July. Paragraph 6 orders payment for costs which the judge assessed at £3,983 and paragraph 7 provides that no application for the court for a stay of execution is to be made without prior permission of the circuit judge.
16. In relation to the application for permission to appeal against paragraph 1 of the order - which is the only application now pursued - the test which I have to apply is the ordinary test applicable to appeals. That is: is there a real prospect of success? I have to ask myself whether there is a real prospect that Mr Alexander would persuade the Court of Appeal that he has a cause of action against the bank for giving the favourable reference which, it must be assumed, he wanted them to give so that he could take up the tenancy. In my view, there is no prospect of persuading the Court of Appeal that that gives rise to a cause of action. Accordingly the application for permission to appeal against paragraph 1 fails. Paragraph 2 goes with it, because there is no jurisdiction to entertain an appeal against a refusal of permission to appeal to this court. The proper course, as Mr Alexander understands, is to make a fresh application to this court and that is what he has done. I have ruled on it.
17. The application under paragraphs 3 and 4 are misconceived in the light of the provisions of section 54(4) of the Access to Justice Act 1999. There is no jurisdiction to entertain an appeal against a refusal of a court to grant permission to appeal to itself. That is the effect of paragraph 3. Paragraph 5 falls away once Mr Alexander no longer opposes the giving of possession. He would, anyway, have no basis once this court has refused permission to appeal against the orders below.
18. Mr Alexander has told me he that he does not press his application in relation to the order for costs under paragraph 6. Paragraph 7, which prevents him from making further application to the Central London County Court for a stay of execution in those proceedings without prior permission of the circuit judge falls away also in the circumstances that, on giving up possession, there will be no basis upon which to make applications for a stay of execution.
19. Mr Alexander invites me to make it clear that he is withdrawing his application for a stay and that he is content to give up possession to Crown Estates Commissioners on Tuesday 11 December 2001, which is the date at which the warrant for possession otherwise would be executed. I record those matters.
20. The other order against which permission to appeal is sought is the order of Judge Hallgarten on 9 October 2001, in which he refused to entertain a further application for a stay on the circumstances that Judge Wakefield had already dealt with the application on 3 October. There is now nothing left in that appeal.
21. Accordingly, I dismiss these applications in so far as they are not withdrawn.
Order: Permission to appeal refused.