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 MAYOR'S AND CITY OF LONDON COURT
(His Honour Judge Roger Cox)

		Royal Courts of Justice Strand London WC2 Thursday 7th February, 2002

1. LORD JUSTICE ALDOUS: Dr Glah appears before me today seeking permission to appeal a judgment of His Honour Judge Roger Cox of 31st October 2001. This judgment was reached after a trial of a case that Dr Glah had instigated against the defendants, who are the Mayor and Commonalty and Citizens of the City of London. Dr Glah also seeks an order that execution of the order of His Honour Judge Cox be stayed and permission to appeal an order by Pumfrey J refusing permission to appeal a decision of His Honour Judge Marr-Johnson dated 6th April 2001 which rejected Dr Glah's application for an interim injunction pending appeal. I will come to those orders later.
2. It appears from the bundle of documents before me and the judgment of the judge that Dr Glah is a barrister and author by profession. He was a tenant of two rooms, nos. 152 and 153, in a large office block owned by the defendant called Temple Chambers, Temple Avenue, London EC4. The block was managed on behalf of the defendants by Mrs Teresa Pugsley of the City of London Surveyor's Office and by a Mr Angelo Alman, the building's on-site supervisor.
3. The lease dated 6th December 1999 contained in clause 3.14.1 an obligation upon Dr Glah not to use the premises otherwise than as professional and mercantile offices. Clause 6.1 stated:

"The Lessors will open the Building during Normal Business Hours and may allow the Lessee access outside Normal Business Hours by means of electronic swipe cards (or other similar means). Any such cards will be issued subject to such reasonable regulations as the Lessors may from time to time require and the Lessors reserve the right to withdraw all or any such cards issued to the Lessee in the event of any breach of such regulations or any other use or misuse thereof which affects the good management or security of the Building."

4. Clause 9.1 required the lessee to pay the rent and, upon observing the covenants contained in the lease, provided that the lessee should hold and enjoy the premises during the term without any interruption from the lessors or any person lawfully claiming under or in trust for them.
5. The swipe card regulations were set out on a "Card Entry Release Form". On 7th December 1999 Dr Glah signed a copy of those regulations and was issued with a swipe card. For the purposes of this application the only relevant clause is clause 7, which is in these terms:

"7) The Corporation reserves the right to de-programme the card at any time and demand the card back if it is deemed by the Management Surveyor that such access is misused in any way or access results in a security risk to the detriment of other tenants within the building."

6. According to the defendants, from around September 2000 the defendants' staff frequently began to find Dr Glah asleep in his office when they entered in the early morning to clean it. They also noticed suitcases and blankets in his room. Consequently, Mrs Pugsley wrote to and subsequently visited Dr Glah, requesting that he should stop sleeping in his room, which was contrary to the terms of his lease. Dr Glah protested his innocence. Notwithstanding this meeting, Dr Glah, according to the defendants, continued to be regularly found asleep in his office. That prompted the defendants on 2nd January 2001 to withdraw Dr Glah's swipe card. That was a substantial irritation to Dr Glah, who believed (and I suspect still believes) that the measure was unjustified and was an interference with the clause guaranteeing his right to quiet enjoyment.
7. According to the defendants, the withdrawal of the swipe card did not put an end to Dr Glah sleeping overnight in his office. On 5th February 2001 Mrs Pugsley asked Mr Alman to keep a record of the nights he spent in his office. That he did, and a copy of that record appears at page 236 of the bundle. The record purports to show that Dr Glah spent most, if not all, of his nights in the office.
8. On 22nd February 2001 the defendant served a section 146 notice on Dr Glah. It demanded that he should within seven days remedy and pay compensation for his breaches of clause 3.14.1 of the lease by sleeping in the premises and residing in his rooms on a permanent or semi-permanent basis.
9. Dr Glah did not offer any compensation or cease sleeping in his office during the notice period, according to the defendants. That is consistent with Mr Alman's record. Consequently, the defendants re-entered the office on 2nd March 2001 in Dr Glah's absence. An inventory was taken (which appears at page 220 of the bundle) which noted that a suitcase containing blankets and a bag full of dirty clothing were in his rooms.
10. On 2nd March 2001 Dr Glah applied for an order that he should be allowed back into the premises and that the swipe card be returned. He filed his claim which started these proceedings shortly thereafter. He sought an injunction restraining the defendants from interfering with his quiet enjoyment, damages for past interference and damages under the Human Rights Act.
11. Pending trial, Dr Glah and the defendants gave undertakings. Dr Glah's undertook that he would not breach clause 3.14.1 and the defendants undertook that they would not interfere with his quiet possession. However, the defendants refused to return his swipe card. Dr Glah applied for an interim order that they should do so. That application came before His Honour Judge Marr-Johnson at the Mayor's and City of London Court on 6th April 2001. The judge rejected his application, holding that Dr Glah had no real prospect of succeeding in forcing the defendants to give him a swipe card at trial, since, under the terms of lease and card regulations, the swipe card was a privilege not a right. Dr Glah attempted to appeal this order, but Pumfrey J rejected his application for permission to appeal.
12. The action came on for hearing before His Honour Judge Roger Cox on 31st October 2001. Dr Glah's case was that he had not slept or resided permanently or semi-permanently in his office, and that consequently the section 146 notice was invalid and that the swipe card had been unreasonably taken away. In support he relied upon evidence that was given by his wife and a friend, Mr Amihere, and on receipts for hostel accommodation, which he submitted showed that he had not slept in the office on some of the nights the defendants alleged that he had.
13. The defendants relied upon evidence from Mrs Pugsley, Mr Alman and various other Temple Chambers' staff. Their evidence, which was consistent, flatly contradicted Dr Glah's case that he had never slept in his office.
14. The judge in his judgment rehearsed the evidence and concluded that Dr Glah had indeed used his office for domestic accommodation, contrary to his assertions. The judge said this, at page 16 of the transcript:

"I have come to the conclusion that the Corporation has established on the balance of probabilities at least, and in my judgment beyond the balance of probabilities, that Dr Glah was regularly sleeping at the premises in the period from about October 2000 up until 22 February 2001. It follows from that, subject to one other matter to which I shall have to advert hereafter, that the Corporation properly served their notice under section 146 of the Law of Property Act."

15. The judge went on to consider whether he should exercise his discretion to grant relief against forfeiture, but decided, in the light of his findings that Dr Glah had continued to sleep in his office after service of the notice and that Dr Glah had in his view lied to the court. The judge therefore concluded that he should not do so.
16. Dr Glah, in his written skeleton argument and grounds of appeal and his submissions before me today, submitted that the conclusion reached by the judge was contrary to the weight of the evidence. It is therefore right that I should spend a little time considering how the judge dealt with the evidence.
17. The judge evaluated the evidence as a whole, but he gave special weight to a number of points. First, the receipts did not show, in the judge's view, what Dr Glah said they did. The times on the receipts indicated that Dr Glah had not spent the nights he said he had spent at the hostel.
18. Second, the evidence of Mrs Glah, which was adduced to show that Dr Glah resided whether in a house in Leyton rather in his offices, was vague and unhelpful and did not sit easily with the information from the electoral roll supplied by the defendants.
19. Third, the presence of blankets in a suitcase in Dr Glah's office when the defendants re-entered was not explained by Dr Glah. In the absence of an explanation the obvious conclusion was that Dr Glah had used them as bedding.
20. The judge went on to reject Dr Glah's human rights arguments. He held that Dr Glah's right to family life and to freedom of expression was not affected by the restrictions imposed upon the use or access to his office, and that his right to property did not extend beyond the rights granted under the lease.
21. Dr Glah has, as I have said, submitted a skeleton argument with his notice and has put forward a number of grounds in his application. As I have said, his appeal takes substantial issue with the findings of fact, but he does not challenge the findings of law made by the judge. His key submission is that the judge incorrectly assessed the credibility of the witnesses. He submits that the judge should have disbelieved the defendants' witnesses and accepted his evidence.
22. In attacking the judgment, he focuses on what he perceives to be the strength of the receipt evidence, which he believes contradicts Mr Alman's record; the strength of the evidence of Mrs Glah and of Mr Amihere; and the weakness of the defendants' evidence as to whether there were blankets and a sleeping bag in his office. He submits that it was perverse to imagine that he spent the night sleeping in his office when he had paid for a bed in a hostel, and that Mr Alman's evidence should not be trusted because in his cross-examination he contradicted himself, and also because Mr Alman and Mrs Pugsley refused to examine the contents of his suitcase when they visited his office in late 2000.
23. Dr Glah also argues that the withdrawal of his swipe card interfered with his right to the quiet enjoyment of the premises. He submits that there were no grounds upon which that was justified. He therefore seeks permission to appeal the decision of Pumfrey J refusing permission to appeal against the decision of His Honour Judge Marr-Johnson. He also revived his human rights point, adding assertions that Article 3 and Article 6 rights have been infringed.
24. It is quite clear from my recitation of the submissions made by Dr Glah that any appeal would have very substantial difficulties because it would be based upon a challenge to the judge's findings as to the credibility of the witnesses. The judge had the advantage of seeing the witnesses give their evidence. That is an advantage which this court would not have. In those circumstances, only in very exceptional circumstances will this court interfere with a conclusion of fact which depends upon the credibility of witnesses.
25. In my view the submissions that Dr Glah has put forward fail to satisfy that standard. They do not convince me that it would be possible, if an appeal took place, for Dr Glah to displace the judge's findings of fact. It is possible to discern a few errors in the judge's judgment upon dates and the like, but in my view it was clearly open to him upon the evidence to accept the evidence of the defendants that Dr Glah had often slept in his office and to reject his evidence to the contrary. Once that is accepted as a fact, his conclusion that the section 146 notice was valid and that the defendants had lawfully re-entered followed.
26. The judge's finding that the defendants were entitled to withdraw the swipe card was in my view clearly correct upon the findings of fact that he made. There is no dispute as to the interpretation of the regulations. Once it was established that Dr Glah had been regularly sleeping in his office, it followed that the defendants were entitled to withdraw the swipe card. Further, the application for permission to appeal the refusal for permission to appeal is one which this court could not possibly grant, having regard to the statutory jurisdiction.
27. In my view the judge's rejection of the human rights points were also plainly correct. Again upon the findings of fact, there was no infringement of his human rights.
28. I come finally to the judge's refusal to grant relief from forfeiture. Such relief is granted where the defendant has remedied or seeks to remedy and offer compensation. Dr Glah failed to do either. Such relief is discretionary and in my view there is no real prospect of success in arguing that the judge wrongly refused to grant relief.
29. In my view there is no real prospect of an appeal succeeding in this case. In those circumstances, the application must be refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)