England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE COX)

		Royal Courts of Justice Strand London WC2 Wednesday, 14th February 2001

1. LORD JUSTICE THORPE: This is an application for permission which ordinarily would have been heard without notice but, as the learned associate has pointed out, somewhere within the papers submitted by the applicant is an application for a stay, and that has led the Court to give notice to the defendant and to the defendant's representation on this application. I therefore had the benefit of submissions not only from Mr Hutchings for the applicant but also Mr Walker for the respondent. Those submissions reveal a pretty chaotic piece of litigation in the Lambeth County Court.
2. The respondents to this application, the London Fire and Civil Defence Authority, are long-suffering landlords who have not collected any rent from the applicant, Mr Ahktar, over many years. Not surprisingly they have initiated proceedings to try to get possession and to get their money. Mr Ahktar's response has been a defence and counterclaim in which he has asserted that he ceased to pay rent years ago because of the disgraceful state of the premises. He has had to put the money that would have gone to rent into patching the premises up, and he has a substantial claim against the landlord. That counterclaim is apparently supported by two surveyors' reports.
3. This morning Mr Walker asserts that Mr Ahktar is in breach of some order requiring him to file witness statements in support of the counterclaim, and Mr Walker asserts that he is therefore debarred. That seems to me an area that requires further investigation. Mr Walker if he is right in his assertions one would have thought would have made application to strike out the counterclaim. No such application has been made.
4. Judge Cox had the case in September. On 9th September when the case was listed Mr Ahktar failed to attend. Judge Cox viewing the history as one of frequent manoeuvring by Mr Ahktar made an order adjourning over to 10th December, recording that no application to adjourn would be entertained on that day unless made in person or by legal representations to Court. On 10th December once again the applicant did not attend and was not represented. The case was listed in front of His Honour Judge Welchman who not surprisingly in view of the history made a twenty-eight day possession order, entered a money judgment against Mr Ahktar in the sum of £12,178 approximately and ordered him to pay costs.
5. On 23rd December Mr Ahktar's solicitors applied to set aside that order on the grounds that Mr Ahktar had been prevented from putting his case as a result of ill health. That application came before His Honour Judge Cox on 28th February. Both parties were represented by solicitors and counsel. Mr Walker was there. He has been in this case consistently and more or less throughout. But the solicitors for Mr Ahktar were not the solicitors who are in this Court this morning. The judge had to determine the application under CPR 39.3(5). He therefore had to be satisfied that Mr Ahktar (a) had acted promptly; (b) had good reason for non-attendance on 10th December; and (c) had reasonable prospects of success.
6. We do not have a transcript of Judge Cox's judgment but we do have a note taken by Mr Walker's instructing solicitors. That note reveals the judge considering these three limbs in turn. In relation to the first he noted that thirteen days had elapsed between the order of Judge Welchman and the application to set aside. There is nothing in this note to record whether the judge held that to be prompt or unprompt. If a transcript subsequently obtained reveals the judge held that to be unprompt, in all the circumstances I consider that he was arguably wrong.
7. In relation to the second limb, namely reasons for non-attendance, the judge referred to a statement which had been made by Mr Moussa Siblini on 24th February. This deponent says that on the 9th, the eve of the hearing, he was contacted by his father-in-law who was ill and who asked him to make representations to the Court in relation to the certificate. He says that he collected a medical certificate dated 8th December and faxed it to the Court. He further says that he immediately followed up the fax with a phone call to the office inquiring whether it was necessary for him to attend on behalf of Mr Ahktar at the hearing. He says that he was told that the medical certificate was being placed on the file being put before the judge and that in the circumstances it was not necessary for him to attend.
8. The judge nowhere refers in this note to that evidence, and there is some doubt as to whether Mr Siblini was cross-examined on his statement. Mr Walker's memory is to the effect that he was. If he was, there is no indication what the judge made of his credibility. As a small point the judge refers to medical certificate in the singular but in fact the affidavit of Mr Siblini exhibits not only the crucial certificate of 8th December, which he faxed to the Court on 9th, but also a further certificate which was given by the doctor on 14th December. The judge placed a lot of emphasis on a certificate which was said to have been sent to the solicitors who represented Mr Ahktar on 28th February on 7th December. From that the judge drew the inference that Mr Ahktar was represented by solicitors in early December and should therefore have arranged for them to attend on the 10th. The difficulty with that is that the earliest certificate is dated the 8th, and I simply do not know what certificate it was that the judge relied on in making the inference which he did. Mr Walker has been unable to help on that. He said that he certainly did not have a copy of such a document and indeed may not even have seen it. There is a possibility obviously that it is on the Lambeth Court file. So I am very doubtful as to the security of the judge's reasoning in relation to the second limb and accordingly I am doubtful as to his conclusion that Mr Ahktar had not good reason for non-attendance.
9. I come then to the third limb reasonable prospects of success. The judge dealt with that by saying:

"As to reasonable prospects of success, Counsel has stated that there is a counterclaim which is supported by a surveyor's report, but it is conceded by his Counsel that the arrears add up to over £12,000 and there are not sufficient damages in relation to the counterclaim to engulf of the existing arrears.

The claimant was also bound to obtain the Orders that it did on the 10th December and it is not suggested that the counterclaim extinguishes the arrears."

10. I have some difficulty with that if that is a full and accurate note. For what the judge had before him on 10th December was an application for possession of a secure tenancy governed by the Housing Act 1985. The landlord's reliance was upon ground one of schedule 2, namely rent arrears. But before making a possession order on that ground the judge must be satisfied that it would be reasonable for him to do so, and in reaching any conclusion as to reasonableness he would have to have regard to the counterclaim for damages for disrepair even if that counterclaim did not extinguish the amount of arrears.
11. I postulate hypothetically that Mr Ahktar might establish his counterclaim to the extent of £11,500. That surely would be something that would bear on any discretionary decision as to reasonableness. Accordingly, it seems to me, that the judge was arguably wrong in saying that the landlord was also bound to obtain the orders that it did on 10th December. For all those reasons it seems to me that it would be wrong to extinguish this application at this stage.
12. I also propose to adjourn it for further hearing on notice with appeal to follow if permission granted, and I would have thought that an hour should be sufficient to sort this out on the next occasion provided sensible steps are taken in the meantime to get the case into proper order. Mr Hutchings only came into the case yesterday I think, and he must obviously look through what has been filed in this Court during the course of Mr Ahktar's in person period. I suspect he needs to amend his notice of application to cease to bring any attack on the order of 10th December and to attack the order of 28th February. If he can succeed in showing that Judge Cox was wrong, then of course the order of 10th December falls. If he cannot show that Judge Cox was wrong, then I cannot see that he would have much criticism for the order of 10th December.
13. A transcript of the judgment of 28th February must be obtained. Solicitors on both sides need to see if there is anything of relevance on the Lambeth Court file; particularly they need to see if on that file there are any documents handed in to the Court (in particular obviously the certificate to which Judge Cox referred as being in the hands of solicitors on 7th December). There would be an opportunity for Mr Hutchings to make inquiries of the solicitors who acted previously for Mr Ahktar, but it does not look as though he is going to get much help from them because he has already made a preliminary inquiry and they seem to say that they no longer have their file. I cannot really understand how that could be since it is less than a year since the hearing before Judge Cox.
14. Finally, it seems to me that this is a totally disproportionate piece of litigation. As Mr Walker points out, it has been proceeding for years without any satisfaction to the landlords. If this case continues in this Court, the best that Mr Hutchings can hope to achieve is a retrial at the County Court which would no doubt be a laborious and expensive exercise. So before any further step is taken in relation to this application, certainly before it gets any listing, a letter of invitation must be sent to the parties to submit to the Court of Appeal ADR service and their response must be received by the Court.
(Application allowed; seven days to prepare bundles; stay on terms that applicant commences within 14 days to pay current rent and maintain those payments during life of stay; detailed public funding assessment; costs of appeal).