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 WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE BEHAR)

		Royal Courts of Justice Strand London, WC2
		9th June 2004

1. LORD JUSTICE THOMAS: This is an application for permission to appeal against the judgment of His Honour Judge Behar given at the Wandsworth County Court on 21st November 2003. In his judgment Judge Behar allowed in part an appeal by the appellant against the judgment of District Judge Habershon sitting at the Wandsworth County Court.
2. The appellant, who was the claimant in this matter, was the tenant of premises demised to him for use as trade premises. In September 1999 he was in arrears with rent and it was the contention of the respondents that the appellant had abandoned the premises. They changed the locks. The proceedings were commenced by the appellant claiming relief against forfeiture and damages. The appellant was admitted back into the premises in November 1999 or thereabouts, but the lease was terminated on 7th February 2000.
3. The claim took a little time to come to trial and was heard over two days, on 15th August 2002 and 1st November, by the District Judge. It appears that at the end of a long hearing on the second day she decided to give judgment immediately. The judgment on the two-day hearing occupies three pages of double spacing in its transcribed form. It is perhaps unfortunate that the learned District Judge did not take a little more time to deal with the matter more fully than she did. One would ordinarily expect, after a hearing of some two days, a judgment that dealt with the matter in a little more detail. Indeed, it has been one of the arguments of the appellant on this application that the reasoning set out in the judgment of the learned District Judge was insufficient and that should have given rise to the learned Circuit Judge allowing the appeal. He relies in particular on the decision in Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373.
4. In her judgment the learned District Judge dismissed the claim for damages and gave judgment on the counterclaim for the sum of £15,490.66. The District Judge decided that the lease had been forfeited and the sum which she awarded reflected that fact.
5. The Circuit Judge allowed the appeal on forfeiture in favour of the appellant. Therefore it is not necessary for me to set out the arguments that were deployed. In consequence of his decision he reduced the amount due under the counterclaim by some £496.44. He went on then to consider the appellant's appeal in relation to his claim for damages and exemplary damages and dismissed the appeal on those points.
6. In approaching this matter of course I must bear in mind that this is a second appeal and the principles in Part 52.13 apply. This court will not give permission unless the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
7. I will consider the grounds that have been very cogently put forward before me by Mr Owugah, who has appeared in person, and who has referred me, as I have already indicated, to a number of authorities.
8. The first point he takes relates to the amount of the counterclaim. He says in essence that there is first of all no evidence that the respondents, who were not the original lessors, have any title to sue. Secondly, he questions the judge's finding that the amount due should only be reduced by £496. His point is that he says he was kept out of the premises until November and that the judge should therefore have reduced what is claimed by significantly more than £496.44.
9. However, both of these points that are raised are issues of pure fact. As I read the judgment of Judge Behar, together with judgment of the learned District Judge, he concluded that the only loss of use in the period down to 28th September. Both judges concluded that the defendants had proper title to sue in respect of these amounts. Those are, in my judgment, plainly questions of fact. They raise no issue of principle and there is nothing in either judgment in my view which clearly shows that this court ought to interfere.
10. The second ground of appeal is more troubling. Although the Circuit Judge quite rightly expressed in his judgment the obvious point that at the end of a long day it is always possible for any judge to overlook an issue, it is the fact that the learned District Judge overlooked dealing with the significant claim for exemplary damages. The Grant Judge's judgment said this:

"So far as aggravated and exemplary damages are concerned, although those were claimed, they are not, unfortunately, referred to in the District Judge's judgment, which one is a little reluctant to criticise because I understand it was delivered at the end of a very long day. [The judge was kind to make those remarks] It does bear in some respects the hallmarks of that fact, that it had to be delivered at the end of a very long and tiring day. In the event it does not matter because I accept that the learned District Judge did impliedly reject those claims for the reasons which are set out in paragraph 8 of the Respondent's skeleton argument. In my judgment, the District Judge was entitled to come to the view that such damages should not be awarded. So far as exemplary damages are concerned, she was entitled to have regard to the principles set out in McGregor on Damages (17th edition, paragraphs 11-021 to 11-028) and she was entitled to conclude that the Defendant did not behave in a way which was calculated to make a profit, even if its procedures were not as good as might, in all the circumstances have been expected."

11. In my view, although the learned judge did not express the matter fully, he came to the right conclusion. In my judgment the learned judge ought to have approached the matter on the basis that the learned District Judge had not dealt with the matter, that in those circumstances he ought to have considered the matter more fully than he did, but his conclusion was right.
12. The principles upon which exemplary damages can be awarded are set out in Rookes v Barnard [1964] AC 1129. Relevant to the circumstances of this case, the circumstances in which exemplary damages would be available is where there had been tortious conduct calculated to result in a profit excluding the compensation payable.
13. In my judgment, the judge was entitled to conclude that the conduct of the respondents in this case was not calculated to make a profit. I accept the point that has been made by the appellant that one looks at the position when they put up the notice. But it is hard to see how on the facts it can be said that their conduct in demanding the payment of the arrears was calculated to make a profit. Moreover, the amount that was payable for the period of unlawful forfeiture does not exceed the amount of the arrears. There is no evidence that they were, by locking the premises, trying to evict the appellant so to be able to rent them out to tenants who would pay a higher rent. Indeed, they allowed the appellant back into the premises, as I have said, in November.
14. Thus it seems to me looking at the facts there is no arguable ground on which it can be said that the Circuit Judge came to the wrong conclusion. It would, as I would observe, have been better had he approached the matter a little more fully than he did. But he came plainly to the right conclusion.
15. The final ground on which Mr Owugah seeks permission to appeal relates to the learned District Judge's dismissal of his claim for damages for loss of profits, loss of expenses and the like. The learned District Judge, again in a judgment that was really in my view far too short for a claim of this magnitude, came to the view on the facts that she did not accept the evidence put forward to substantiate those claims. It is said by the appellant in his argument to me today that she had not considered the loss of a chance of profit or approached the matter in accordance with the decided authorities.
16. However, it seems to me that the learned Circuit Judge was right in saying that this really was an issue of fact. Can it be said that the court ought to interfere with it? First of all, are the reasons inadequate? In my view, although the matter should have been dealt with more fully, the learned District Judge did set out her conclusions, which were essentially that she did not accept the claimant's evidence and she said that it was contradicted by that of another witness. It seems to me that, although it would have obviously been desirable if the reasons had been fuller, the judgment set out sufficient for the purposes of explaining in accordance with the law what the reasons for her decision were.
17. Secondly, it is said that she did not look at the question of the chance of a loss of profits. I do not think, having read her judgment and that of the learned Circuit Judge, that there is any merit in that criticism.
18. I therefore regret that I cannot give permission to appeal in this case. As I have already set out, the grounds on which this court can interfere are very circumscribed.
19. I would however add that this is a very good example of a case where had the learned District Judge been afforded more time to consider the matter and to produce a fuller judgment, no doubt operating under very heavy pressure of work at Wandsworth County Court, it would have been better and may have obviated the need for an appeal. I would hope that those who look after the listing at the court would ensure that judges are given time, when they hear a case that lasts two days, to be able to give a judgment that deals with all the issues and sets out the reasons at greater length than those that the learned and conscientious District Judge did so in this case.
20. I therefore refuse permission to appeal for those reasons.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)