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 WITH APPEAL TO FOLLOW
IF GRANTED

		Royal Courts of Justice Strand London WC2 Thursday, 2nd May 2002

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Makweley Lysongo, who appears in person, for permission to appeal against an order made by His Honour Judge Brian Knight in the Central London County Court on 14 May 2001, whereby he dismissed the applicant's claim against Railtrack Plc, the defendant in the consolidated actions. The judge refused permission to appeal
2. The applicant applied to the Court of Appeal for permission to appeal, and on 31 July 2001 Lady Justice Hale adjourned the application with a direction that, should permission be granted, the substantive appeal should follow. The application was listed for 21 January 2002, but the applicant was unable to attend the hearing for medical reasons. The Court of Appeal on that occasion - Lord Justice Latham and Lady Justice Arden - accordingly dismissed the application. Mr Lysongo subsequently applied successfully for the application to be re-listed and it comes before us today.
3. The background to the matter is, in summary, as follows.
4. By a Tenancy Agreement dated 24 March 1997 Railtrack let to Mr Lysongo premises known as Arch No. 163 Rye Lane, Peckham Rye, Southwark. The arch is a railway arch, and it is the last in a line of 5 such arches giving onto a narrow cul-de-sac off Rye Lane, Peckham Rye.
5. By the Tenancy Agreement, Railtrack let the arch to Mr Lysongo on a yearly tenancy at an annual rent of £2,500. The commencement date of the tenancy was 25 March 1997. The agreed use of the arch was stated to be "storage of foodstuffs". By clause 7.1 of the Tenancy Agreement, Mr Lysongo agreed that "no part of the Property is to be used otherwise than for the agreed use". Clause 21 of the tenancy agreement entitled Mr Lysongo to "display a notice of his name and business in a form and position approved in writing by" Railtrack's surveyor. Clause 30 of the Tenancy Agreement provided that Mr Lysongo should enjoy access to and egress from the arch along a route shown in brown on a plan annexed to the Tenancy Agreement or such alternative route as Railtrack might from time to time prescribe. Clause 31 of the Tenancy Agreement provided that Mr Lysongo should have no right to park vehicles on the access route save only for the purpose of bona fide loading or unloading of goods.
6. Finally, so far as the Tenancy Agreement is concerned, clause 32.3.2 of the Tenancy Agreement entitled Railtrack to forfeit Mr Lysongo's tenancy if he failed to comply with any of its terms. In June 1997 a Mr Dominic Duddy of Railtrack visited Mr Lysongo at the arch and had a meeting with him. In a memorandum of that visit which was subsequently prepared by Mr Duddy he stated, referring to Mr Lysongo, "he is trading now for the first time". In his oral evidence at the trial Mr Duddy explained that what he meant by that was that Mr Lysongo was occupying and using the arch.
7. On 11 January 1999 Ms Tracey Page of Railtrack (which was then operating under the name of Spacia) wrote to Mr Lysongo saying that it had come to Railtrack's attention that he was currently using the arch in breach of the user clause. The letter continued:

"I draw your attention to your Tenancy Agreement dated 24 March 1997, which clearly states the agreed use is for the storage of foodstuff. Therefore, you are prohibited from trading and selling goods from your property."

8. Mr Lysongo responded by letter dated 26 January 1999. In the course of that letter he said:

"Firstly, the tenancy agreement originally contained two errors when it was sent to me for signature. The first error I discovered was the date of commencement of the tenancy agreement and the second was the use of the property which was as you rightly point out. I insisted that the errors should be corrected by typing before I signed but your predecessors disagreed.

..... I pointed out that the use of the property says storage instead of sale of foodstuff but it was explained to me that this is a commercial property designated for trade. Hence, your predecessors did not raise any objections when they saw me trade (sell my goods) during their visits to the property. I have discussed the matter with my commercial advisers and solicitors who find your demand and interpretation rather strange especially as all commercial property entails trading, that is the sales of goods or services.

I have also contacted the planning officer and they are not against the use of the premises for trading."

9. Thus Mr Lysongo was asserting that Railtrack had agreed that the agreed use under the Tenancy Agreement should extend to trading and selling goods, and he was further asserting that representatives of Railtrack had seen him doing that and had not objected.
10. On or about 27 February 1999 Railtrack served on the applicant a notice under section 146 of the Law of Property Act 1925. The notice, which was dated 22 February 1999, notified Mr Lysongo that he had agreed to use the arch for the storage of foodstuffs, adding the word "only", and that he had breached that agreement by using the arch "for the purpose of trading and selling dried fish". The notice went on to require him to remedy the breach, stating that if he failed to do so within 28 days it was the intention of Railtrack to re-enter and forfeit the tenancy, and claim damages for the breach.
11. On 4 March 1999 Mr Lysongo faxed Railtrack confirming that he had been using the arch for the sale of stockfish since 1997 but asserting that he had done so with Railtrack's knowledge and that such use was in conformity with the existing planning use for the arch.
12. On 24 March 1999 Mr Lysongo commenced an action against Railtrack in the Lambeth County Court. In that action he claimed damages amounting to £99,800 against Railtrack on the basis that an advertising sign erected by the tenant of a neighbouring arch had adversely affected his business and had caused him loss of earnings and inconvenience. The proceedings were served on Railtrack on or about 9 April 1999.
13. In the meantime, on 31 March 1999, a Mr Beunderman of Railtrack visited the applicant to see if the dispute could somehow be resolved. Mr Beunderman's evidence was that he indicated to Mr Lysongo that he would review the possibility of extending the user clause in the Tenancy Agreement to include the selling of foodstuffs but that he gave no guarantee that the user clause would be so extended.
14. On 14 April 1999 Railtrack re-entered the arch and removed Mr Lysongo's goods. It did so on the footing that, notwithstanding the section 146 notice, the applicant had continued to use the arch for trading and selling dried fish.

Subsequently, Railtrack served a notice on the applicant under the Torts (Interference with Goods) Act 1977 relating to those goods.

15. On 20 July 1999 Mr Lysongo began a second action, this time in the Shoreditch County Court, claiming unlimited damages for wrongful and forceful entry, wrongful seizure and destruction of goods, wrongful termination of tenancy and loss of earnings.
16. In due course, pursuant to an order made by Deputy Judge Wagner on 20 July 2000, Mr Lysongo produced a statement of account supporting his claim and itemising the various heads of damage. The total claim amounted to some £1.042 million. Subsequently, the court struck out his claim for loss of profit and other claims for special damages. In the result, when the trial of the two actions took place before the judge, the actions having been consolidated, Mr Lysongo's claim was for general damages for inconvenience plus compensation and reimbursement in respect of works of improvement which he alleged he had carried out to the arch.
17. Mr Lysongo represented himself before the judge, as he does on this application. He gave oral evidence himself, but called no other witness in support of his case. As the judge noted in paragraph 5 of his judgment, Mr Lysongo's primary case, as presented to the judge, was that the agreed use of the arch was for retail trade, so that he was not in breach of the Tenancy Agreement in using the arch for that purpose. In the alternative, he contended (relying among other things on Mr Duddy's memorandum and its reference to Mr Lysongo as "trading") that in any event Railtrack had known about and acquiesced in such user and had thereby waived any breach; further or alternatively that Railtrack had waived or abandoned the section 146 notice. In support of this last contention, the applicant relied, among other things, on Mr Beunderman's reference to a possible extension of the user clause to include the sale of foodstuffs. In addition, Mr Lysongo sought to rely on a planning permission dated 4 January 1990 obtained by British Rail Property Board, which granted outline permission for the refurbishment of the five arches to provide either light industrial use (Class B1, in planning terms) or retail use (Class A1), on condition (among other things) that the development should begin not later than five years from the date of the permission. Mr Lysongo contended that in the light of that permission, further planning permission would be required to revert to storage use.
18. In paragraph 13 of his judgment the judge made the following findings of facts:

"1) Mr Lysongo used the premises for the sale of dried fish. The use probably commenced some time in mid to the end of June 1997 and was continuing at 22 February 1999 although perhaps on a reduced scale.

2) Mr Gill"

- he was a representative of Railtrack -

"met Mr Lysongo once at Hackney in order to obtain his signature on the agreement. On this occasion corrections were made to the dates relating to commencement and payment of rent but Mr Gill did not agree to extend the user clause to extend to retail use.

3) Mr Beunderman did not in March 1999 agree to extend the user clause, or inform Mr Lysongo that he could continue selling dried fish in disregard of the user clause. Mr Beunderman only agreed to reconsider widening the user clause if agreement could be reached between the tenants as to the access and advertisement issues."

The reference in that third finding to access and advertisement issues is a reference to other aspects of the overall dispute between Mr Lysongo and Railtrack, to which I shall make further reference in due course. In paragraph 14 the judge continued:

"The first finding is not controversial and is confirmed, for example, in Mr Lysongo's fax of 4 March 1999 and his oral evidence."

19. The judge went on to reject Mr Lysongo's contention that Railtrack had acquiesced in his use of the arch for selling foodstuffs. The judge accepted Mr Duddy's evidence that when he referred to Mr Lysongo as "trading" for the first time, he simply meant that he was using and occupying the arch.
20. As to the applicant's argument that Railtrack had waived or abandoned the section 146 notice, the judge accepted Mr Beunderman's evidence that he would have considered widening the user clause if he had obtained the agreement of the tenants of the five arches on the issues as to access and advertisement. The judge went on:

"It does not follow from this that Mr Beunderman must have impliedly abandoned the notice. No such conclusion can be drawn."

21. In this connection, the judge cited a passage from the judgment of Mr Justice Peter Gibson (as he then was) in Re National Jazz Centre Ltd (1988) 3 EGLR 57 at 58K, to the effect that continuation of negotiation does not, in itself, constitute a waiver and could not reasonably be understood by any objective observer to do so.
22. As to Mr Lysongo's arguments based upon the outline planning permission, the judge noted that the permission was subject to the usual conditions, which, on the evidence of Mr Gill of Railtrack, had not been implemented. Accordingly, the judge found that Mr Lysongo could not rely on the planning permission. In the alternative, the judge concluded that in any event the planning position would not have affected Mr Lysongo's obligations to Railtrack under the Tenancy Agreement, and it would have remained Mr Lysongo's responsibility to satisfy himself as to the authorised planning use. He would have remained at risk of forfeiture whatever the planning position.
23. As to Mr Lysongo's allegations of obstruction of access, the judge concluded that Mr Lysongo had "no sustainable claim against Railtrack on the basis of his allegations concerning access."

The judge dealt with this aspect of the dispute in paragraph 18 of his judgment. He noted that it was accepted that the arch could not be served by articulated lorries, but he deduced on the factual evidence that smaller vehicles could nevertheless gain access where they passed a fruit stall which had been erected at the front of the cul-de-sac leading to the arch.

24. The judge concluded that there was no substantial interference with access to or egress from the arches by a smaller vehicle. He went on to conclude that in any event Railtrack were under no express obligation to maintain unobstructed access at all times. I should say at this point that there was no suggestion that Railtrack had licensed any third party to use the access road to the arch in any way that would have caused actionable obstruction.
25. The judge also rejected Mr Lysongo's complaints about a sign erected by a neighbouring tenant in respect of which Mr Lysongo was claiming compensation. The judge went on to say that any possible claim for rectification of the Tenancy Agreement would require a clear factual basis, which did not exist in the instant case. The judge accordingly concluded that a rectification claim would be "doomed to failure".
26. Accordingly, the judge concluded that Railtrack had established a breach of covenant entitling it to re-possess the arch, and that it had served a valid section 146 notice, which had not subsequently been waived or abandoned. It followed that the forfeiture was not wrongful, and neither was the seizure of Mr Lysongo's goods, and that any claim for damages in respect of those matters must fail.
27. The judge accordingly found for Railtrack in both actions and dismissed Mr Lysongo's claims.
28. In his oral submissions to us this morning, Mr Lysongo has made a number of points in addition to those raised in his appellant's notice. I begin by referring to the grounds of appeal as set out in section 7 of that notice. The three grounds of appeal there set out read as follows:

"1) The decision (order) of the judge was wrong. He failed to consider or ignored some important aspects of my evidence. I am not appealing his decision on the use of the premises.

2) The decision (order) is unjust and there were several procedural and other irregularities during the hearing. The hearing did not run its course - it was incomplete.

3) The order of the judge is inopportune or premature."

29. As to the second of those three proposed grounds of appeal, the only irregularity (if it could be described as such) in the proceedings was that in the course of his cross-examination of Mr Gill, the first of Railtrack's witnesses, Mr Lysongo informed the court that he proposed to take no further part in the proceedings, and he carried out that intention. Accordingly, the remainder of Railtrack's witnesses were not cross-examined by Mr Lysongo. The judge described the way in which the trial proceeded in paragraph 4 of his judgment. In the light of the serious allegations which Mr Lysongo has made this morning in support of the second of the proposed grounds of appeal, I shall read the entire paragraph:

"The trial began on 9th April 2001 and was set down for 2½ days. Mr Lysongo appeared in person. He had prepared a 17 page statement dated 19th October 1999, and a short undated witness statement. In addition on the morning of the 9th April Mr Lysongo presented a 36 page document headed `The accusations against Railtrack'. Mr Lysongo signed the document and the Court permitted its use as an opening statement and witness statement. The document sets out in detail Mr Lysongo's allegations against Railtrack (including blackmail and intimidation) and the Railtrack personnel with whom he was involved, and alleged that tenants in the other arches applied pressure on Railtrack to terminate his tenancy, and that when this failed they resorted to sabotage and vandalism. In the conclusion of this document Mr Lysongo states at page 35:

`This case exposes the regrettable rampant negligence of duty, inefficiency and mismanagement of Railtrack managers. They made a mockery of the planning law but punished me severely for obeying the law and ruined my only source of livelihood.'

The Court made copies of this document, which was followed by an adjournment so that Railtrack could read and digest its contents. My Lysongo was then allowed to read and elaborate parts of it. Mr Lysongo called no evidence other than his own. On the morning of the 10th April Mr Lysongo applied for a direction that all the defendants' witnesses should remain outside Court until completion of their cross-examination. There being no justification for this the application was refused. On the morning of the 10th Mr Lysongo produced a further small bundle of document[s] which were also copied by the Court. Unfortunately insufficient copies were made and it became necessary to interrupt Mr Lysongo's cross-examination of Railtrack's first witness, Mr J Gill. At this point Mr Lysongo expressed his dissatisfaction with the hearing, and said that he would take no further part. Mr Lysongo was advised against taking this step as the proceedings would continue in his absence. Mr Lysongo declined the offer of an adjournment."

30. In his submissions to us this morning Mr Lysongo submitted that the judge was prejudiced and that he failed properly to consider the arguments and evidence presented to the court by

Mr Lysongo. Mr Lysongo told us that the judge had, as he put it, made it clear that he would never be convinced by Mr Lysongo. Mr Lysongo told us that he did not expect to have to "confront" the judge. He submits that the trial was never properly concluded because he was not present to cross-examine the defendant's witnesses.

31. In my judgment, there is no substance whatever in that proposed ground of appeal. In the circumstances described by the judge, which are confirmed by the transcript of the proceedings, there can be no criticism whatever of the manner in which the judge handled the trial. Very much to the contrary. This was a meticulously careful and fair judgment in which the judge dealt fully and thoroughly with all the queries and issues raised before him. The simple fact is that for his own reasons Mr Lysongo, unfortunately, chose to absent himself from the proceedings. He must accept the consequences of so doing. That is not to say that the proceedings were in any sense unfair to him. There can be no criticism of the way in which the judge dealt with what must have been a difficult situation.
32. I turn to the first of the proposed grounds of appeal. In argument before Lady Justice Hale on the first hearing of this application for permission to appeal Mr Lysongo sought - I think for the first time - to draw a distinction between retail trade, on the one hand, and trading to retailers who might possibly pay on the site, on the other. Referring to that way of putting the case, Lady Justice Hale said:

"I have experienced considerable difficulty with this application because, as the case was put before the learned judge on the basis of retail use, it could not have succeeded, because there was nothing to suggest that the defendants had known about and acquiesced in retail use of the premises. If, on the other hand, the case had been put on the basis of the sort of warehousing plus distribution to restaurants and shops in the area that it is now put upon, there is some evidence in the bundle to support the suggestion that the landlord knew all along that that was going on. Not without considerable misgivings, I have therefore decided to adjourn this hearing on notice to the other side so that the matter can be further considered. As the point is a short one, I will also order that, if permission is granted at that hearing, the appeal will follow, so as to save everybody's time and expense."

33. Before us, Mr Lysongo has elaborated upon the contentions which he put forward to Lady Justice Hale. He seeks to contend that his activity was one of selling not to customers but to retailers and that the judge failed to distinguish between that activity and selling direct to customers (i.e. retail sale). Mr Lysongo submits that the word "storage" in the Tenancy Agreement includes sale to retailers. In support of that submission he seeks to pray in aid the planning legislation, suggesting that as a matter of construction of the agreement "storage of foodstuffs" includes sale to retailers. He further repeats the argument which he presented to the judge that Mr Duddy had seen him trading and selling fish from the arch and that Railtrack had, accordingly, acquiesced in that user of it.
34. Mr Lysongo also seeks to challenge the section 146 notice on the footing that it wrongly includes the word "only". He submits that the inclusion of that word renders the notice ineffective in that it does not represent a true repetition of the agreed use as it is to be found in the tenancy agreement of its true construction. Mr Lysongo also seeks, once again, to re-open the issue as to the visit made by Mr Beunderman and as to what Mr Beunderman said to him. He submits, as he did to the judge, that Mr Beunderman's reference to the possibility of the user clause being extended effectively amounts to a waiver or abandonment of the section 146 notice. He also seeks to rely on the planning permission on which he relied before the judge, submitting that it is illegal to grant a tenancy of premises for storage purposes since it would have been contrary to the planning use. He also challenged the further conclusions reached by the judge to which I have referred.
35. I can, for my part, see no substance in Mr Lysongo's first proposed ground of appeal. If and in so far as he is seeking to challenge the judge's finding that he was using the arch for selling fish, that is accepted. The fact that he may have been selling to retailers rather than direct to customers is of no assistance to him. The word "storage" means what it says. It is not affected, in my judgment, by the planning legislation. The fact that a wider use may be permitted under the planning legislation is neither here nor there. In my judgment, Mr Lysongo's attempted reliance on planning legislation is, with respect to him, misconceived.
36. Further, the judge's finding that there was no agreement on the part of Railtrack to extend the agreed use of the arch to include the sale of goods as opposed to merely storage is, in my judgment, unassailable in this court. As to Railtrack's knowledge that he was using the arch for selling and not merely for storage, the judge found that it had no such knowledge. In this connection the judge said:

"Mr Duddy denied ever seeing Mr Lysongo retailing his fish. Mr Lysongo says that Mr Gill and others saw him trade from the arch when they made site visits. Mr Gill says that after the Agreement was signed he would not have visited the site. Mr Maxfield"

[another Railtrack witness]

"also states that he did not see Mr Lysongo selling dried fish from the arch. No details are given as to the other personnel involved or the occasions of visits which Mr Lysongo relies upon. On this point Mr Lysongo has failed to satisfy me on the evidence."

37. That is a clear finding that Railtrack had no knowledge of any kind of selling going on at the arch, whether selling direct to customers or selling to retailers. It seems to me that that finding is conclusive on the issue which clearly troubled Lady Justice Hale as appears from the passage from her judgment which I quoted earlier.
38. The judge also accepted Mr Beunderman's evidence that he would have reconsidered widening the user clause if he had obtained the agreement of the tenants on the access and advertisement issues, which he was unable to do. That again is a finding by the judge and a conclusion form that finding which seems to me to be unassailable in this court.
39. In light of those findings and conclusions, the dismissal of Mr Lysongo's claims in relation to forfeiture seems to me to have been inevitable. What Mr Lysongo is, in effect, now seeking to do is to have a second bite of the cherry by re-litigating that issue and seeking, in so doing, to re-open aspects of the case on which the judge made a conclusive finding of fact. I can, for my part, see no prospect of Mr Lysongo being enabled on appeal to do that.
40. Accordingly, there is, in my judgment, no substance in the first of the proposed grounds of appeal.
41. I turn to the third of the proposed grounds of appeal, namely that the judge's order was "inopportune or premature". I understand from what Mr Lysongo has said to us this morning that his complaint under this head is essentially the same as that which he seeks to raise in the second of his proposed grounds of appeal relating to the manner in which the trial was conducted, and the fact that he was absent during the cross-examination of most of the Railtrack witnesses. For reasons I have already given, I can see no substance in this proposed ground of appeal. The matter was dealt with entirely fairly by the judge. Mr Lysongo's decision to absent himself was his own decision.
42. Mr Lysongo has raised a number of other points in addition to the three specified grounds of appeal. He has submitted that he is entitled to compensation in respect of the improvements he says he has carried out on the premises. He suggests he is entitled to that compensation whether or not Railtrack was entitled in law to forfeit the tenancy. He submits that the repossession of his goods was unnecessary, and that in the process of that repossession he has lost or been deprived of a number of documents relevant to the issues in this case. He suggests that the true motive for the repossession was not Railtrack's wish to terminate the tenancy but rather the wish of the neighbours to make difficulties for him.
43. All these are matters which, in my judgment, have no bearing whatever on the question with which this application is concerned, namely whether he has any arguable or real prospect of showing the judge to have been wrong in the conclusion he reached.
44. Mr Lysongo also addressed us on the issues as to access and advertisements. So far as access is concerned, I can see no ground for interfering with the judge's findings of fact (in paragraph 18 of the judgment to which I referred earlier) or of his conclusion based upon those findings. So far as the complaint in relation to the advertisement is concerned, there is no evidence of any request by Mr Lysongo to Railtrack for an advertisement as required by the Tenancy Agreement to which I referred at the outset of this judgment. As to the advertisement placed upon the premises of the neighbour - Budget Carpets - it is the case and Mr Lysongo has accepted this morning that that advertisement has been in place a number of years.
45. In my judgment, the judge was right to reject Mr Lysongo's claim in relation to access and the advertisement for the reasons he gave.
46. In all, therefore, it seems to me that the judge dealt with particular thoroughness with each of Mr Lysongo's arguments. He rightly rejected them all. In refusing permission to appeal, the judge did give his reasons as -

"clear findings of fact against the claimant. No real prospect of success."

47. I respectfully agree, and I would decline to discharge the order made on the earlier occasion, dismissing Mr Lysongo's application for permission to appeal.
48. THE VICE-CHANCELLOR: I agree. I add a few words of my own in respect of the second ground of appeal to which my Lord has referred in which Mr Lysongo suggests the judge's decision is unjust and that there were several procedural irregularities in the course of the hearing.
49. I have read the transcript of the proceedings to see if there is justification for those allegations. I can find none. It appears to me that the judge conducted the hearing with exemplary courtesy, consideration and fairness. I have also examined the judgment to see if there is any ground there for the allegation of prejudice or inopportuneness. Again, I can find none.
50. The judge reserved his judgment at the conclusion of the hearing on 10th April 2001. Judgment was handed down in writing on 6th May 2001. I agree with my Lord's description of it. It seems to me that it was not only meticulous and comprehensive, but he seems to have covered all the points put before him by either side and to have reached clear and convincing conclusions on them.
51. In my view, for the reasons given by Lord Justice Jonathan Parker, the judge was right for the reasons he gave. There would have been no prospect of success had permission to appeal been granted to Mr Lysongo. In view of the order made by Lord Justice Latham and Lady Justice Arden on 21st January 2002, the appropriate order to be made on this hearing is that we refuse to discharge the order made on the last occasion.
Order: Application dismissed