England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WALSALL COUNTY COURT
(HHJ RUNDELL)

		Royal Courts of Justice Strand London WC2 Tuesday 30th April 2002

1. LORD JUSTICE KAY: The appellant appeals against a decision of His Honour Judge Rundell, sitting in the Walsall County Court on 10th December 2001, whereby he rejected the appellant's claim for damages for negligence and breach of contract against the respondents and ordered the appellant to pay the respondents' costs.
2. In 1977 the appellant became the tenant of residential premises in Oldbury in the West Midlands. The freehold of the property was vested at different times in differently named Housing Associations. By the early 1990s the appellant's landlord was the Sanctuary Housing Association.
3. On 5th March 1993, the Sanctuary Housing Association issued proceedings against the appellant, claiming possession of the premises and arrears of rent said to be £628.38. On 6th July 1994, those proceedings were heard by a circuit judge, resulting in an order for possession, together with a money judgment in the sum of £1,197.38, including costs to be paid by instalments of £3.50 a week, possession being suspended so long as the instalments were paid.
4. The respondents are a firm of solicitors. The appellant first consulted them concerning these matters in September 1993. They were not instructed to represent him at the County Court proceedings. Following the adverse judgment, it is common ground that the appellant gave instructions to the respondents to lodge a notice of appeal against the judgment. In their defence the respondents admitted that they failed to lodge any such notice, and that this failure was both negligent and in breach of the terms of their contract with the appellant.
5. In the present proceedings, the appellant seeks damages for that negligence and breach of contract. The respondents contend that the appellant had suffered no loss referable to their failure to lodge the notice of appeal. They based this contention upon the fact that section 77(6)(e) of the County Courts Act 1984 (the Act), which they submit was applicable, gave the appellant no right of appeal. Section 77(1) of the Act provides:

"Subject to the provisions of this section and the following provisions of this Act, if any party to any proceedings in a County Court is dissatisfied with the determination of the judge or jury, he may appeal from it to the Court of Appeal, in such manner and subject to such conditions as may be provided by the rules of the Supreme Court."

6. The relevant parts of subsection (6) qualify this general right of appeal in the following way:

"In proceedings in which either the plaintiff or the defendant is claiming possession of any premises, this section shall not confer any right of appeal on any question of fact, if by virtue of (e) section 34(2)(a) of the Housing Act 1985, the court can only grant possession on being satisfied that it is reasonable to do so."

7. At the hearing of the appellant's claim, Judge Rundell accepted these submissions, and rejected, therefore, the appellant's claim. He then went on, in any event, to consider the damage alleged by the appellant, in particular, under two heads. Firstly, it was contended by the appellant that, as a result of the possession order that was made against him, he had lost the right to buy the premises. As to that, the judge concluded that there was no evidence upon which he could properly conclude that the appellant ever did intend to buy the premises. He further found that, even if there had been such an intention it had never been communicated to the respondents. He accordingly concluded that any such damage, even if it had existed, would have been too remote.
8. The further head, under which damages were sought, was damages for loss of an opportunity to set up a business which the appellant sought to run. The business was one in respect of which he produced a business plan. That plan was considered by the judge but he came to the conclusion that the document that was produced before him was not a document that dated back to the relevant time. That decision was based upon the fact that there was a reference in the document to "the minimum wage" which he took to be a reference to the national minimum wage, which had only come in thereafter. The appellant had contended that in fact it carried a different meaning but that explanation was rejected by the judge.
9. When the appellant lodged his application for permission to appeal to this Court, he sought to challenge all the matters upon which the judge had found against him. The matter came as a permission hearing before Mantell LJ who granted permission but restricted it to whether the judge ought to have found for the appellant, but merely awarded him nominal damages. This was because there was an admitted breach of contract, and, therefore, there was a right to damages, although if no loss was proved those would simply be nominal damages.
10. Before us this morning, the appellant has sought to raise the other matters and, therefore, sought our permission to argue the points upon which he so far has not got permission. He has argued that there was an injustice in that the court ought to have come to a conclusion that the document that he produced, the business plan, was a genuine document and ought not to have rejected his evidence on the other matters. Those, it has to be understood, were arguments that had been advanced but were not critical to the outcome of the case. The judge's primary finding was that there was no right of appeal from the decision of the original circuit judge in the claim brought by the Housing Association. Thus, although the respondents had accepted instructions to start proceedings, those could never have benefited the appellant because, at the end of the day, they were bound to fail for the reasons advanced by the respondents.
11. I, for my part, am entirely satisfied that the judge was right to come to the conclusion that he did. The section to which I have earlier referred makes it quite clear that Parliament had intended to put a specific limitation upon the right of appeal, which covered the very facts that were raised in this case. So far as the issues upon which an appeal was sought to be brought, they related to a factual dispute as to whether or not the appellant had paid, more than once, for his water rates, since part of the payments that he was having to make were derived from housing benefit and there had been a change in the housing benefit regime. For my part, I have no doubt at all that that was an issue of fact decided by the circuit judge at the County Court and, accordingly, the provision to which earlier reference has been made meant that there was no right of appeal.
12. The judge, in the course of his judgment, made clear that what should have happened is that the appellant should, when he first went to see the respondents, have been given clear advice that that was the situation and that there was nothing that he could do about it, even if he viewed the outcome of the proceedings brought by the Housing Association as having led to an injustice to him. That is an approach, with which I entirely agree. That was the major failing in this case, but that would not in any way have altered the appellant's position so far as the claims he seeks to pursue are concerned. For those reasons, I am entirely satisfied that Mantell LJ was right to restrict the appellant to argue the matter that he did.
13. Accordingly, the only matter that falls for determination on the appeal is whether the judge was right in his conclusion, which was simply to dismiss the claim or whether instead he should have made an order for nominal damages. Mr Flenley, on behalf of the respondent, acknowledges that the judge was in fact wrong in this regard.
14. It is apparent that in fact the matter had gone before the judge, following an order already having been made for judgment for the appellant, and damages to be assessed. Therefore, the hearing before the judge was simply a hearing to assess damages.
15. Having reached the factual conclusions that the judge did, which I am entirely satisfied he was entitled to reach, the only order that he could make as to damages was one for nominal damages. That being conceded, it seems to me clear that, to that extent, the appeal has to succeed and that the order of the judge must be set aside and there must, in consequence, be a judgment for the appellant for nominal damages. The appellant will probably not understand what is meant by nominal damage, in these circumstances. Normally the damages that a person receives are to compensate him for the loss he has suffered, which has been caused by the respondent's breach of contract. In these circumstances, there were no such loss caused by the breach of contract, since there was no right of appeal in any event. Accordingly the court fixes a small sum, not intended to compensate for anything at all, in order to mark the fact that there has been a breach of contract, but not in any way to compensate the appellant. That is what is intended by nominal damages. Mr Flenley has submitted an appropriate figure in the circumstances would be £15. For my part, I would have thought that entirely appropriate in the circumstances of this case. Accordingly, I would allow the appeal, so far as it relates to the judgment, by setting aside the order purporting to dismiss the claim, which was invalid any way since there had already been judgment for the appellant, and substituting an order for the respondents to pay the appellant the sum of £15 by way of damages.
16. That then leads to next and, in the circumstances, important consideration: whether the order for costs made by the judge should stand? The judge's order was that the appellant should pay the respondent's costs. It could be said that the appellant had succeeded in this case, and therefore that that order was inappropriate. Mr Flenley has invited the Court to say that there is no reason to think that the judge's exercise of his discretion was inappropriate. I do not see that the court could start from that proposition. In this case the judge had concluded that the appellant had to fail in his claim, when he should have concluded that the appellant would succeed but recover no more than nominal damages.
17. That, it seems to me, invalidates the judge's exercise of his discretion, although it does not follow that the conclusion that he reached was the inappropriate one. What it means is that this Court must itself exercise that discretion and decide what the proper order for costs should have been, taking into account all the factors, including that the appellant would ever have succeeded to the very limited extent of recovering nominal damages.
18. It is important in considering where the costs should lie in a case such as this to look to see what it was that the parties were in effect seeking in the proceedings that were brought before the judge. The appellant, here, was not seeking some sort of notional success which marked the fact that the respondents had failed to commence proceedings in breach of contract, he was seeking substantial damages the negligence of his solicitors and also their breach of contract. When one looks to see what he was claiming they were substantial sums of money and it is clear that that was the very purpose of these proceedings and in no sense would the Pyrrhic victory of nominal damages have been likely to have been of any benefit or satisfaction to the appellant.
19. In those circumstances, Mr Flenley submits that when the court re-exercises its discretion, the appellant effectively lost in these proceedings. He brought a claim seeking substantial sums of money. He did not succeed in that way. At an early stage the respondents indicated that they were negligent and in breach of their contract, but put forward, in the clearest possible terms, the defence that was to succeed.
20. There might be circumstances in which it would be appropriate to look to see whether the order for costs should be split up to that moment, when the defence was filed, so that they would not be paid up to that point but that thereafter the respondents would have their costs. However, there are arguments advanced by Mr Flenley which, at the end of the day, I think must succeed. Firstly, he submits that it is quite clear that, whatever had happened and, even if an admission of negligence and breach of contract had been made at an earlier stage, it would not in any way have deflected this appellant from bringing these proceedings and pursuing them to this stage. He points to the fact that the defence did not in any way stop the appellant, and indeed he has gone on and proceeded with these matters, even once he knew of the limitation imposed by the Mantell LJ and in face of the fact that Mantell LJ gave him a warning that, even having got permission, it might not be in his interest to pursue the matter further, because there might be costs consequences for him.
21. Thus it is submitted that nothing that might have been done, even at an earlier stage, would have deflected this appellant from pursuing this matter further. I think that is right. It could equally be said that since the solicitors had given bad advice, until they acknowledged that it was bad advice, the appellant might have misunderstood the position particularly bearing in mind that he is a litigant acting in person.
22. At first that seems an attractive argument to me. It is pointed out, on behalf of the respondents that, well before proceedings were started, the appellant did consult other solicitors. He, therefore, had the opportunity to have himself advised as to what the proper position was and whether there was any prospect of his succeeding if he brought proceedings of this sort.
23. In those circumstances, I have no doubt, when one steps back and looks at the matter as a whole, that this is simply a case where the appellant having started proceedings, has pursued them to the bitter end when in fact what he was really seeking he has never achieved in any significant degree at all.
24. For those reasons, I would come to the conclusion, although for different reasons from the judge, as I start from a different point of view, that the proper order was that the appellant should pay the respondents' costs in the court below.
25. Accordingly, I would allow this appeal only to the limited extent that I earlier indicated, namely to set aside the judge's order and to substitute for it an order assessing damages in the sum of £15.
26. SIR SWINTON THOMAS: I agree.

Order: The Appeal is allowed to a limited extent. Set aside the order dismissing the claim and substitute an order for the respondent to pay to the appellant nominal damages, assessed in the sum of £15, to be off set against the total costs bill. The costs of the appeal, appellant to pay respondents' costs of appeal summarily assessed for £3,000.