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 SOUTHAMPTON COUNTY COURT
(His Honour Judge Thompson QC)

		Royal Courts of Justice Strand London WC2 Friday 15th March, 2002

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal by Kevin Hooper and Rachel Lowe from the judgment of His Honour Judge Thompson QC dismissing their claim against the Hampshire Police and its Inspector Doel.
2. The renewed application was listed for hearing in court this morning at 10 o'clock. It is now 10.40 and no one has appeared on behalf of the applicants, which is not surprising in view of the history which I set out quite shortly as follows.
3. Last week I received an application by letter dated 8th March 2002 from solicitors instructed by the applicants asking for today's hearing, which has been fixed since 25th February, to be adjourned because:

"... our clients have just informed us that they will be unable to attend Court on that date as they have to go to a funeral of a close family friend."

4. I refused that application because it seemed to me that as the applicants were legally represented it would not be necessary for them to attend court, and because the appeal is of some vintage.
5. Yesterday I received a further application for an adjournment in a letter from the same solicitors, dated 14th March, in which they said:

"It appears that the fee earner involved in this matter spoke to your office [that is the Court of Appeal office before the letter asking for an adjournment because of the funeral] when he advised that our clients Counsel was not available on the 15th March. Unfortunately he did not write to you confirming this, but no doubt he would be prepared to swear an affidavit confirming this. It also appears that Legal Aid coverage for tomorrow's hearing has not yet been granted.

It is very important to our client that the original Trial Counsel deals with this application, as he has a thorough understanding of the case and issues."

6. That was a somewhat surprising application. The Court of Appeal office have no record of any such conversation, and had this been a reason for asking for an adjournment one would have expected it to have featured in the grounds which were put forward in the later letter. For those reasons, I refused this application also.
7. The response to that refusal was a third letter from the solicitors, faxed through yesterday afternoon, saying:

"Unfortunately Legal Aid has not yet been granted for tomorrow's hearing, and we are unable to attend court or send a representative. We have advised our clients of the position and understand that one of them may attend."

8. Well no one has attended and I am surprised, given the long history of this appeal, that delay in obtaining legal aid should still feature as a reason for not being able to appear at today's hearing. Be that as it may, there is no one here. I have of course reconsidered my decision on paper in this case, and will deal with the application in a slightly fuller way than I did on paper in the light of that reconsideration.
9. The claim arose out of a venture started by the applicants to run a teenage disco for one night a week from a night club in Gosport. Their case was that they had agreed with the manager of the club, Mr Sale, that they could run the disco on Tuesday evenings for at least 12 months but after three weeks, following trouble at the most recent disco, Mr Sale had terminated this contract as a result of pressure from Inspector Doel to the effect that if he did not do so the police would object to the renewal of the club's licence, due to be heard shortly by the licensing justices. The applicants claimed damages alleging that the police had induced or procured a breach of contract.
10. The police denied that they had put pressure on Mr Sale. It had been his decision to terminate any agreement he had with the applicants. They also put in issue the nature of the agreement and Mr Sale gave evidence at the trial. He said that he had only agreed to allow the disco on a week-to-week basis. He had made it clear that if there was any trouble it would immediately be closed down and that is what he had done the day after the last disco when he learned what had happened at and after it. This was his decision. He had not been put under any pressure by the police to make it.
11. The judge accept Mr Sale's evidence which meant that the applicants' case failed for two reasons, either of which would have been fatal. First, because they had not established any contractual right with which the police could have interfered. Second, that the police had not in fact interfered with any such right.
12. The applicants settled their own grounds of appeal. These grounds assert that the police evidence was a pack of lies and that the judge should not have accepted Mr Sale's evidence. He was, they say, wrong to reject their evidence.
13. These, however, are not sustainable grounds of appeal. It is for the trial judge to decide which evidence to accept and which evidence to reject, and make findings of fact accordingly. This court does not have the advantage of seeing and hearing the witnesses and does not therefore interfere with the judge's findings of fact. That is really the end of the matter so far as the applicants are concerned. In refusing permission on paper, I said:

"The two issues in this case were

1) whether the contract with the claimants was for 12 months or from week to week; and

2) did the defendants intentionally induce a breach of that contract?

On both these issues of fact the judge found against the claimants. I can see nothing in the grounds of appeal or the arguments in support of them which offer any real prospect of persuading this court that the judge's findings were wrong."

14. I remain of that view. Accordingly, this application for permission must be refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)