England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MRS JUSTICE RAFFERTY)

		Royal Courts of Justice Strand London WC2
		Friday, 11th May, 2001

1. LORD JUSTICE MUMMERY: This is an application by Mr Lloyd Moodie to reinstate an application which he made last year for permission to appeal. He acts in person. The proposed respondent to the appeal is the London Borough of Haringey. They are represented by Mr Blaker. He has submitted a skeleton argument of the council's position and has responded to a number of points made by Mr Moodie in support of his application. Mr Moodie has provided a file of papers relevant to the background of his case and has submitted a further witness statement in relation to his application.
2. The background to the application is this. Mr Moodie took a lease of commercial premises at 404 High Road Tottenham, London N 17, in 1996. The lease was for commercial premises from which he carried on the business of retailing records, manufacturing records and related matters. The lease, a copy of which is included in the bundle, was made on 14th August 1996 for a term of seven years and 11 months from 24th March 1996 at an annual rent, for the later period at least, of £9,660 payable quarterly in advance. The lease was a full repairing lease.
3. Mr Moodie fell into arrears with payment of rent, which led the council issuing a writ in the Queen's Bench Division on 11th March 1999 claiming arrears of rent of just under £19,000 and possession. Judgment was given for arrears of rent and further rent and insurance charges in excess of £23,000 on 15th July 1999. The matter was before the court again in October and December 1999 in relation to a stay on the order for possession. The important order for present purposes is the order made on 21st December 1999 when Mr Moodie's application for a stay was dismissed. On 13th January 2000 Master Ungley dismissed an application directing that the possession order should stand. Mr Moodie appealed, seeking to have the possession order set aside. That appeal was dismissed by Mrs Justice Rafferty on 10th March 2000. Mr Moodie then sought to appeal. For the purpose of appealing, he needed to have permission. Permission was refused by Mrs Justice Rafferty as was an application for stay of execution. The application was put before Lady Justice Hale. On 20th March she indicated that she was minded to refuse permission. This is what she said in her reasons:

"The applicant wishes to bring a 'second tier' appeal, having failed in his appeal to the Judge against the order of the Master. The Court of Appeal does not entertain such appeals unless they raise a point of principle or practice or there is some other compelling reason for doing so. Regrettably, although the case is undoubtedly important to the applicant, there is no such reason in this case.

The Master's decision was based on the level of arrears and the fact that, despite the applicant's efforts, compliance with the order of July 1999 it was unlikely to be achieved. The applicant's claim in respect of repairs formed no part of the proceedings.

In any event, the applicant himself did not initially believe that he could make such a claim. None of the material presented to me suggests that it would have made any difference to the Master's decision or casts any doubt upon the correctness of that decision.

It would certainly not be appropriate to grant a stay in these circumstances. If the application is pursued it should be inter partes (on notice to the other party who

should attend)".

4. The matter then went before Lord Justice Simon Brown on 19th May. Mr Moodie did not attend. The application for permission was dismissed.
5. That is how matters stood until 3rd May this year, when Mr Moodie made an application to reinstate his application for permission to appeal. In the meantime, in March or April last year the council obtained possession of the premises. They have since served Mr Moodie with a statutory demand based on the unsatisfied judgment. Mr Moodie has made an unsuccessful attempt to set aside the statutory demand, a bankruptcy petition has been presented and the hearing of it has adjourned until 14th May, which is next Monday.
6. Mr Moodie has suffered a series of misfortunes. He has not only lost these premises, in which he says he had been conducting a successful business, he has suffered two car accidents, a family breakdown and a nervous breakdown. He has pointed out to me that from his point of view the property was in bad repair when he took the lease, the roof leaked and the council did not carry out the repairs promised. His surveyor prepared a list of repairs which the council has not carried out. What he wishes to raise, if he is allowed to reinstate his application for permission to appeal, is a proposed counterclaim and set off against the council for failure to carry out the repairs.
7. His present position is that he only has a part-time job. He has informed the court that the business mentioned by Mr Blaker in Tottenham called Moodie Records is not Mr Moodie's business at all, but belongs to his brother. Mr Blaker has pointed out that there were other proceedings in which a claim was made for disrepair by Mr Moodie against the council. They were struck out on 12th March last year by Master Leslie on the failure of Mr Moodie to comply with the requirement to submit an allocation questionnaire. He is seeking to have those proceedings reinstated. An application for that purpose is due to be heard on 5th June.
8. I have taken note of the points which Mr Moodie has made in his submissions this morning and also the further written materials he has submitted. I have come to the conclusion that it is not appropriate in view of the long history, the delay in this case and the orders made, to reinstate the application for permission. First, the delay for almost a year before this matter was sought to be reinstated is too long to be excuseable. On that ground alone I would refuse to reinstate it. I should add that I have also read the papers in the files submitted by Mr Moodie. An additional reason why I would refuse to reinstate the application is that it does not have any real prospect of succeeding. As pointed out by Lady Justice Hale, this is a second tier appeal. Mr Moodie failed in his appeal to Mrs Justice Rafferty. A further appeal to this court is only allowable if the case raises a point of principle or practice, which this does not, or there is some other compelling reason. I cannot find any compelling reason for reinstating the application. In law this is a perfectly straight forward case. Mr Moodie fell behind with the rent. The council were entitled to judgment for the rent and possession. They have obtained possession. They have not been paid what they are owed. In those circumstances, there is no real prospect of having this judgment set aside.
9. As regards the point which Mr Moodie wishes to bring in relation to disrepairs, he has already sought to bring a claim in other proceedings and at this late stage it would not be appropriate to allow him permission to raise these matters in defence of those proceedings or by way of counterclaim. He had ample opportunity to do that during the course of the hearings before Master Ungley in 1999. It was not raised then. It was not successfully raised before Mrs Justice Rafferty. In those circumstances, I really do think, unfortunate though it may be for Mr Moodie, that there is no real prospect of his appeal succeeding. Therefore, he would fail in his application for permission. I am sorry to hear about all the other misfortunes Mr Moodie has suffered, but this matter has to be decided according to law. According to law the council are entitled to enforce the judgment which they have obtained. There is no real prospect of upsetting it on appeal. ----------
Leave to appeal refused with costs.