England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO RENEW
REFUSED PART OF APPLICATION FOR
PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Friday, 18th May 2001

1. LORD JUSTICE BROOKE: This is an application by the defendants for permission to appeal against an order of Judge Medawar QC at the Central London County Court on 22nd September 2000 when he gave judgment against the first defendant for the sum of £58,710.75 including interest. He dismissed a counterclaim by the second defendants and he ordered the first defendant to pay the costs of both the claim and the counterclaim. The judge also ordered a stay of the execution of a judgment against the second defendants for over £21,000 to be lifted. I have already granted permission to appeal on paper against the order that the first defendant should pay the claimant his costs of defending the counterclaim. The first defendant now renews his application for permission to appeal against other parts of the judge's orders against him. The second defendants seek to produce fresh evidence in relation to the counterclaim.
2. There were a number of featuers of the judge's order. The first related to a claim for just under £30,000 for the costs of rugs which had been delivered to them for which the first defendant was personally liable. The judge entered judgment in favour of the claimant for that sum. There is no appeal against that. Similarly, there is summary judgment for the claimant against the second defendants for the costs of rugs amounting to just over £18,000 supplied to that company earlier. That was the summary judgment over which the judge lifted the stay at the time he gave final judgment in this matter. That is not the subject of an appeal. The third matter is that the judge entered judgment in favour of the claimant against the first defendant for £22,981.38 in relation to storage charges for rugs stored at the claimant's premises. That is the subject of an appeal.
3. The second defendants counterclaimed about £85,000 for the value of rugs wrongfully detained by the claimant at the claimant's premises plus a claim for loss of profits. That counterclaim was dismissed. The second defendants are not challenging the judge's finding on the evidence before him, but they seek to adduce further evidence in this court which was not put before the court at trial and to re-open the counterclaim on that basis. The grounds for that application to adduce further evidence are not that it could not have been produced with reasonable diligence at the original trial but that there had been a failure of solicitors which related to the non-production of this evidence and that it would be fair in all the circumstances to allow it to be adduced in this court - to re-open the whole matter. In my judgment, having seen the contents of the statement it is proposed to bring in and given that the issue to which it refers was firmly before the judge, the mere fact that unexpected evidence was given on behalf of the claimants at the hearing cannot possibly be reasonable grounds to re-open the counterclaim so as to require it to be litigated all over again. The first defendant had the opportunity to call the witnesses that he now wishes to call. The defendants had the opportunity to call them, and that was not done. I say no more about the application to adduce fresh evidence, which I would dismiss.
4. This leaves only the claim in relation to the storage charges. This came aboutin this way. The defendants were brothers. A long time ago the first defendant had worked for the claimant for whom the moving force is Rasool Zargaran, a wholesale dealer in carpets. In 1994 he went off to trade through the second defendants' company, partly in wholesale and partly in retail. The claims for the sale of rugs which I have already mentioned referred to business being conducted between the two brothers up to 1997, culminating in an agreement that the claimants would only sell further carpets, given the outstanding debt owed to them by the second defendants, if the first defendant took personal liability for them. There is no appeal against that judgment. In the context of that dispute the judge said that the principal witnesses were the two brothers, Rasool and Nasser Zargaran. Both were in the witness box for some time. Rasool Zargaran's evidence was credible and was borne out both by documents and other witnesses. Nasser Zargaran's evidence was patently false in places. The judge said that much of what he said was not only hard to believe but was manifestly inconsistent with what was in the documents and with the evidence of others.
5. Unhappily, in February 1999 Rasool Zargaran suffered a serious accident. Most of his family thought it was life threatening. For several weeks he was in a coma and could not do anything. He was in hospital until May 1999. By that stage the relationship between the two brothers was not at all good because the original debt from the second defendant had been supplemented by the new debt of about £28,000 which Nasser owed his brother. The judge found that in the circumstances which arose when the moving spirit of the claimant business was in a coma, this family, except for his wife, was not truly aware of the situation which prevailed between the brothers. An older brother Abdul Hadi Zargaran, who lived in Tehran, came to London to try and sort out the business and advise on what was to be done. One of the brother's sisters - Farida - also came to London for two or three weeks at this stage.
6. The judge found that Hadi Zargaran seems to have thought that his brother Nasser was the only person who might be able to help with the continuation of Rasool's business because he had worked there at some time and had more recent dealings with Rasool. The judge found that Hadi was not wholly aware of the relationship between the two brothers which had deteriorated by the time of the accident in February 1999. The judge concluded, on the facts, that Nasser saw this as an opportunity to inveigle himself more closely into Rasool's business so that if his brother died he would be able to take advantage of it. The judge rejected his evidence that all he was doing was to help his sister-in-law whose husband was so ill. The judge made a finding adverse to Masser to the effect that everything Nasser was doing was primarily for his own advantage. The judge found that Hadi Zargaran allowed Nasser into the claimant's premises and that Nasser brought some goods which were placed on the first floor of the premises. He brought in 20 pallets of items which the judge described as a vast quantity, although he found that their value was substantially less than estimates which Nasser had variously given of £130,000 or £86,000 or £83,000 on different occasions.
7. The claimant's case at the trial was that the storage of these items at the claimant's premises by Nasser, which was never wished for by the claimant, was on terms arranged by Hadi Zargaran that they would be on the same terms as someone called Shokri, who was having to pay at £6 per square foot per annum plus VAT. There were no extant documents relating to such an agreement. The judge found that all the evidence apart from that given by Nasser was consistent with such an agreement having been made. So far as Hadi Zargaran was concerned, the judge found that the two statements that were before him were equivocal. He had started off by signing a statement on behalf of the claimant supporting the evidence of an agreement, and then the defendants lodged a statement by him saying something contrary to what was said in his first statement. The judge disregarded Hadi's evidence in these circumstances.
8. There was evidence given by Marziel Zargaran, Rasool's wife, and by an employee of the claimant called Peter Marshall. The judge dealt with this matter on page 7 of his judgment and said this:

" ..... there is the evidence of Marziel, which I accept, and the evidence of Peter Marshall that I accept, that there was a time when in the presence of Hadi Zargaran and Nasser Zargaran this [being such a storage agreement] was spoken of, and Peter Marshall was asked to get, and he got, the details of Mr Shokri's rent of part of the premises. He described graphically, having them photocopied three times and bringing them. And it was on the basis of what Mr Shokri was paying that it was agreed that Nasser Zargaran should be able to put his items on the first floor. So criticism is made that there is no document, that the evidence about the agreement is a bit imprecise, but Marziel was obviously in a state of considerable distress, thinking first of her husband, and maybe not entirely clearly about her evidence as to what precisely happened.

Further criticism is made that Peter Marshall's earlier statement had not mentioned specifically this happening, and so forth. So from the defendant's point of view Mr Cowan quite rightly said this cannot be relied upon. Taken on its own, of course one might be in a state of possible uncertainty as to the existence of such an agreement. But everything that happened after, just as it happened before, is consistent only with the existence of an agreement."

9. Pausing there, I understand the judge saying that he accepted the evidence of Marziel and Peter Marshall of the agreement in the presence of the two brothers, but because of the various features of that evidence on which Mr Cowan relied, he might have been in a state of possible uncertainty as to that agreement notwithstanding the fact he said he accepted those two witnesses' evidence. The judge went on to say:

"There is evidence which I accept of Peter Marshall that monthly invoices were being sent out. When I say `monthly' I mean 28 daily invoices were being sent out to Nasser Zargaran, and that they continued in this way without demur, without complaint, that he was not liable to pay storage charges at the rate charged, until we come to the letters of July 1997."

10. Those letters showed that by that stage, when Rasool Zargaran had been returned to health, Peter Marshall was telling Nasser that he must move his things from the warehouse by 22nd July and what the amount set out on the storage invoices was. The judge commented that in Nasser's reply Nasser made no demur about the storage charges and did not say that there was no such agreement. The judge commented at the end of the letter - when he was suggesting a compromise - he suggested the withdrawal of the storage charges. It was on that evidence that the judge found there had been an agreement to pay storage charges and directed that judgment should be entered for the sum claimed.
11. Mr Cowan, who has said everything that could be said on behalf of the claimants, relies on the points he had already made in his careful skeleton argument about the unreliability of the evidence adduced by the claimants on this issue and argued that the correspondence in July 1999 was equivocal on the question whether there had been an agreement on which the claimant could sue.
12. In my judgment, the judge was entitled to reach the conclusion that he did reach on the evidence and the documents. There would be no real prospect of persuading the full court that such an agreement had not been reached. In those circumstances I would dismiss this application.
13. SIR MARTIN NOURSE: I agree, and do not wish to add anything of my own.
Order: Application dismissed