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 APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd July 2002

1. LORD JUSTICE WALLER: Mr Shahravash is seeking permission to appeal to the Court of Appeal.
2. The history of the matter is that on 10th August 1999 he obtained an estimate from 1st Atlantic Roofing Specialists who estimated the cost of materials and labour at £360 plus VAT. The work to be carried out was to cut away the brickwork between two houses and to make a new outlet complete with hopper and rainwater pipe. The work was to commence on Wednesday, 18th August, and the estimate said "All work guaranteed". It is quite clear that they did attend to do some work, possibly on more than one day. It is quite clear that there was a discussion between them and Dr Shahravash about the work they were doing during the period that they were there. There are statements from Mr Tony Hemmings and from Mr Gary Cambridge who explained, from 1st Atlantic's point of view, what happened at that time. There is quite a dispute about what work they were to do and what they did. They invoiced Dr Shahravash, first, by an invoice of 20th August 1999 which conformed with that estimate. They sent a further invoice on 24th August for that work plus some extra work. Ultimately, they brought a claim essentially based on that first invoice and by reference to the estimate. They issued that claim on 4th October 1999 in Staines County Court. By that time Dr Shahravash already had a letter from Total Services (GB) Ltd in which they had reported on inspecting the roof area and had said as follows:

"As a result of my inspection of the flat roof I can confirm that apart from a hole that has been cut in the brickwork of the front parapet wall and, what appears to be a recent application of a grey substance to the front roof gully area, I see no evidence of any other work having been carried out, certainly no new downpipe or hopper is visible."

3. I should say in parenthesis that certainly what 1st Atlantic was saying was that they had installed a new hopper. They said that it was at his request that certain of the work they had already done should be taken away again; there was an issue on that.
4. The matter was transferred to Wandsworth County Court. He then put in a defence in which he denied that 1st Atlantic had done the work for which they were claiming payment. He made a detailed statement dated 1st November 1999 in which he explained from his perspective what he said had happened and how it was that they had not completed the job for which they had estimated.
5. On 26th November Dr Shahravash received a letter from Mr Wood of Allan Hodgkinson & Associates, Consulting Civil & Structural Engineers. That letter, too, was in much the same terms as the Total letter and was suggesting that the works carried out by 1st Atlantic were not the appropriate works and that the charge was an unreasonable charge.
6. The matter then came on before a district judge on 20th September 2000. After a hearing the district judge gave judgment in favour of the claimants, 1st Atlantic. Immediately, Dr Shahravash sought permission to appeal that decision. He put in an application which is in the file at pages 18 and 19. He suggested that the district judge did not take account of his experts' letters and that the matter should have been adjourned to allow him to call the experts. He suggested he should have permission to appeal. Initially, he was refused permission to appeal on paper by Judge Rose on 6th
7. December. He renewed his application for permission, and that was heard orally by Judge Walker on 26th February 2001. I have a transcript of Judge Walker's judgment. He understood Dr Shahravash to be submitting that he did not agree with the decision of the district judge and that his criticism of the judge was that he failed to give appropriate weight to the letter from Total to which I have referred. There is no reference to Mr Wood's letter, but I imagine that Dr Shahravash was making the same point in relation to Mr Wood's letter which was to much the same effect as Total's letter. What Judge Walker decided was that the district judge had made a decision on the facts on the evidence before him. Judge Walker said Dr Shahravash was complaining that the district judge had not adjourned to allow the expert evidence to be given orally. Judge Walker said the expert evidence was not available on that day, this was a small claim and the district judge had to make his decision on the facts on the evidence before him as he was entitled to do, and so Judge Walker refused permission to appeal.
8. As Dr Shahravash was entitled to do, he renewed his application for permission to the next tier up, that is to say the High Court. He argued that he should have permission before Mr Justice Jacob. Mr Justice Jacob thought he should have permission to appeal and advised Dr Shahravash to submit to the judge who heard his appeal, first, that there should be a re-trial and to place reliance on the letter from Mr Wood and his absence from the trial.
9. The matter came on before Mr Justice Laddie. Again, Dr Shahravash appeared in person and Mr Coates appeared for Merchant Resources. Mr Justice Laddie referred to the decision of His Honour Judge Walker. It is right to say Mr Justice Laddie appears to have thought it was Judge Walker who had heard the evidence. With respect to him, that was wrong. He should have been referring to the district judge who heard the evidence. He came to the conclusion that this was a matter for the district judge to decide on the evidence.
10. He said there is clearly a dispute betweent he two sides as to what occurred, what work had been done and what work should have been done. This was eminently a matter for the judge who heard the evidence, and so he refused permission to appeal.
11. To come to this court Dr Shahravash has a very high hurdle to cross. He has again to demonstrate that he has reasonable prospects of success. That is what he had to demonstrate to get to the first leg of the appeal. Having had one appeal, he has in addition to show that the appeal would raise an important point of principle or practice or that there is a compelling reason. He certainly does not demonstrate that there is an important point of principle or practice. The basis of his argument that there is a compelling reason comes down to saying that he did not get the evidence of Mr Wood properly before the district judge who heard the evidence of the plaintiffs and then heard Dr Shahravash, that that has led to an injustice. That he would submit is a compelling reason for the Court of Appeal to hear this appeal.
12. It has to be remembered that this was a small claim. The sum involved is £553. I understand completely the strength of feeling that Dr Shahravash has in the light of letters he has from Mr Wood and from Total. But the time to produce those letters, and the time to produce oral evidence, was before the district judge. There clearly was a serious issue between the parties as to fact and that was the issue of fact which the district judge had to resolve. As it seems to me, this is not a compelling reason for coming to the Court of Appeal. Evidence which should have been produced before the district judge is now being sought to be put in. In a small claims matter it is absolutely vital the evidence is put in first time around. Thus, it would seem to me, it would not be right to give Dr Shahravash permission to appeal. As I pointed out to Dr Shahravash, he has to appreciate that even if permission had been given that is no guarantee at all that he would have succeeded on the appeal. Indeed, he would have been faced with the serious possibility that he would have had to pay the costs of lawyers on the other side if he had failed. The judgment sum would have paled into insignificance compared with the costs that might have been incurred by lawyers acting for 1st Atlantic. It is an unhappy story. It seems to me that Dr Shahravash should live with what had occurred. He did not produce all his evidence before the district judge but he could have done.
13. No permission to appeal should now be given.
Order: Application refused