England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EDMONTON COUNTY COURT
(HER HONOUR JUDGE GILLIAN BRASSE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th July 2012

Lord Justice Ward:

1. In this matter Mr Samambwa appeals against the orders made by HHJ Gillian Brasse sitting in the Edmonton County Court on 10 December 2010. She dismissed the claims against the first and third defendants. As for the second defendant, judgment having been entered against that company, she assessed their damages in the sum of £6,990.22 in respect of loss of use of the vehicle from 9 November 2009 to 13 December 2010 and she made consequent costs orders.
2. This is a most unfortunate piece of litigation in which I have considerable sympathy for the appellant and for the third defendant. The case arises in this way. The appellant has taken a tenancy of a flat at 7 Beaufort Close in London. His landlord is the lessee under a long lease granted to Mr Roney by the landlord. The property is a large block of flats with a car parking area and under the original lease the tenants were given or allocated their individual car parking space. There is a management company, namely the second defendant ("the management company"), whose duties under the lease include by the fifth schedule a duty to "manage … any car parking spaces". The appellant has lived there for six years. His case is that it became increasingly difficult to park in the allocated space; there are too many cars and over time the practice grew up that you park as close to your space as you can. This was causing a great deal of consternation to the tenants and, as a result, at the annual general meeting of the management company, the tenants, being shareholders of the company, protested at the chaos so persistently and vociferously that eventually the management company had to take action, and the action proposed as to re-allocate the spaces, mark them out plainly, allocate a visitors' section, provide for visitors' car parking tickets and have this whole scheme policed by a clamping company, the second defendant, Baypark Management Limited.
3. The management company employed managing agents Countrywide Managing Residential Limited, and they in effect acted as agents for the residents' managing company.
4. The case arises out of the fact that on the 19 September 2009 the appellant parked his car not in his old space but wherever he could find a spot. To his consternation he discovered the next morning that it had been removed. He immediately reported the theft to the police, and after the police had conducted various inquiries it was discovered that the second defendant, Baypark, the clamping company, had duly removed it.
5. Their behaviour has been utterly astonishing. Protest having been made by the appellant to Countrywide, and through them to the residents' management company, they indicated to Baypark that, as the appellant was saying he had not been given notice of this new scheme, the car should be released free of charge, but Baypark did not do that. The litigation began with injunctions against both Baypark and the other two defendants to restrain the sale of the motorcar. The case then came before the court again on 20 April 2010 and the Recorder ordered Baypark to deliver the vehicle up to the appellant, the claimant, by the 29 April. They did not do so. As a result, judgement was entered against them on 5 May 2010 for damages to be assessed, and by further direction of the court that was to be heard at the same time as the claim against the first and third defendants.
6. This is where the case begins to go wrong. The claim against all three defendants is a homemade claim, the appellant at all times acting in person. The claim form gives the brief details of the claim to be this:

"I apply to make a claim for trespass on private property and negligence of duty of care against the defendants and I seek a preliminary order that pending the full hearing of the claim DVLA and its agents or servants be forbidden to issue a registration certificate or record to anyone other than the claimant as the registered owner and keeper on his BMW motorcar."

7. He asked for the immediate return of the car and he claimed damages being the value of the car and items in the car such as CD players, a large sum of money, and he claimed the loss of earnings he had suffered and transport costs and expenses related to the case. The claim as then pleaded was for some £24,700.
8. The Particulars of Claim are also homemade. They do recite, importantly, in paragraph 4:

"The defendants did not send explanation/notification of the new car park arrangements until 28/09/09, when earlier on 20/09/09 at 0200 hours morning, the Defendant 2 (Baypark Management Ltd) had taken my vehicle."

9. He then recites how he had parked the car without knowledge. At paragraph 13 again he records:

"Despite sending the notification [of the changed arrangements for the car parking] after they had already taken my vehicle, they refused to give me the vehicle."

And so he brought his claim.

10. There was no proper defence put in by anyone, everyone at that stage deemed to be acting in person. So far as the residents' management company is concerned, they put in a home made statement of defence in which they set out their case as the management company for the leaseholders; they referred to the contract they made with Baypark. Baypark were put in place due to residents' requests; this was agreed by the third defendant. On the day the motor vehicle was removed the claimant was advised what needed to be done by both first defendant and the second defendant. It then says that the agents of the third defendants being the first defendant have requested the second defendant to return the motor vehicle free of charge. There is an allegation that the second defendant did attempt it, but the claimant refused to sign for the vehicle. Paragraph 7:

"The third defendant as management company has given the necessary instructions to the second defendant and there I believe [I think it should be 'therefore I believe'] that the outstanding query is between the claimant and the third defendant."

11. When the case came before HHJ Brasse she had a so-called case summary prepared by the claimant, and the gist of that document, as is apparent from paragraphs 4 and 8, was that he was contending that the court should decide whether the first and third defendants were vicariously liable for the second defendant's wrongful conduct, and if liable they should be ordered to compensate him in damages.
12. By the time of the trial the third defendants, the residents' management company, had the good sense to instruct Ms Daniella Gilbert, who appears before us today, and I am grateful to her for the assistance she has given the court, both she and the appellant in person have presented the case with, if I dare say so without getting into trouble, a great deal of charm.
13. The trial was not a conventional one, we are told; no evidence seems to have been given; it was a question of discussion and submissions being made and eventually the judge came to give judgment. She recognised in paragraph 3 that:

"The claim is for the return of a vehicle which is a BMW registration RX02 EDF to the claimant which he says was wrongly removed by the second defendant and he says the first and third defendants are vicariously liable for the actions of Baypark Management. He is also seeking either the return of his car or, if has been converted, its value. And further, he is seeking damages because he says that in the car was a cassette player, there was cash and also he has been kept out of the use of his vehicle for something over a year. He was allowed permission to amend his claim to include loss of use of the vehicle."

14. She then set out the history of his occupation. She recorded in paragraph 7 how the claimant saw that the car park was being marked up. He asked about it and was told that a scheme was coming into place and that letters would be sent to them. She records how he parked his car in the next available space on 19 September and how he found it to have disappeared.
15. Paragraph 8 is important. She says this:

"He did not receive (he tells me in his witness statement, and I accept) the letter about the parking scheme until 28^th September. I accept that, because in the bundle at E42 is a letter from the estate agents, Edward Taub, of 25^th September (so he could not have received it until 27^th or 28^th) which advised him of his allocated parking space and gave him a copy of the new car park plan. It is quite obvious from that, that he did not receive that letter until after the car had already been removed. In those circumstances, clearly, the car had been wrongly removed. He said he had not yet been issued with any permit, that no signs were up yet, and I accept that."

16. Then she sets out the fact that he brought this claim and that he is still without his car. She records in paragraph 12 that he is not only seeking the return of the car or the payment of its value and loss of damages. She says:

"Clearly there is a judgment against Baypark Management and, as I say, I will carry on to deal with quantum of damages.

But what then is the position as regards the other two defendants?"

17. She then deals with allegations against them and she deals with the suggestion that they had not made proper inquiries about the competence (and perhaps I could add honesty) of Baypark, but she dismissed that and there is no appeal against that conclusion. So she dealt with the matter essentially as the case had been presented to her, whether or not the management company were vicariously liable for the actions of Baypark. She concluded that Baypark were independent contractors and therefore the residents' management company were not vicariously liable for their actions, and so she dismissed the claim against first and third defendants.
18. She then went on to consider the question of damages against the second defendant, Baypark. We do not have a transcript of that part of her judgment, but it is perfectly apparent from the order that the only damages she assessed were damages for the loss of the use of the vehicle and she did not assess damages for the value of the vehicle or the contents of the vehicle.
19. I confess I am at a loss to understand why she did not assess damages in conversion; she had recognised in paragraph 3 of her judgment, as I have recited it, that it was in effect a claim in conversion. The Recorder had ordered the car to be returned; it had not been returned despite that order; it had clearly been converted, and the judge should have approached the assessment of damages on that basis. There is an appeal against the second defendant, Baypark, who do not appear today; they do not appear because, surprise surprise, they have been struck off the register of companies; they have been liquidated; and although I would allow the appeal against them, that is a wholly academic exercise; they are worthless, and there is no point bothering further recovering much from them. Whether he has a claim in the liquidation is a matter he may wish to take up, but one would not wager much on his receiving much of a dividend from that company.
20. So the real issue is whether the residents' management company can be held responsible in some way. This is our difficulty. The case was pleaded in negligence; there was a clear allegation that he did not receive notice before his car was removed. The judge made the findings she did in paragraph 8, but no one really seems to have concentrated at the trial on the true nature of the negligence that could be established against the residents' management company. The arguments there will be, on the one hand, something to the effect, as the claimant would advance it, that by virtue of the duty undertaken in the lease to the leaseholders (but not to him) there is a duty to manage the car park. He doubtless will submit that there is a corresponding duty at common law to him as a resident of the buildings and a regular user of the car park as the tenant of the leaseholder to give notice of changes to him. His case will be along the lines that there is a non-delegable duty upon them to give him notice. Putting it another way, he was entitled as the occupier of a flat to receive notice, he did not receive notice; therefore there is a breach as a result of which he has lost his motorcar.
21. For the management company, they would no doubt contend that their duty, if any, is simply to take reasonable steps to ensure that notice is given. Their case is set out in the witness statement of one of their directors, Mr Page, who says that many steps were taken by Countrywide, their agents, to give advance warning of these arrangements. Their case is, furthermore, that Baypark hand-delivered to every flat a notice informing the occupants of the new scheme and that they have therefore discharged any duty that lay on them.
22. Ms Gilbert has submitted -- and I see the force of the argument – that, since the case was not adequately presented in that way in the court below, it would be unjust to allow it to go back for that issue to be litigated. On the other hand, the pleading was there; it was obvious for all to see that the issue was had he received, or should he have received, notice of the change, and it was a great pity that, with a litigant in person and Ms Gilbert coming in at a very late stage, no proper analysis was made of the real issues that divide the claimant and the management company. But a grave injustice has been done to this claimant. If, as he asserts, he had no idea that this scheme was coming into operation, as a result of which his car has been taken and disposed of and he has lost his car, he has lost the contents, he has lost the use of his car, much of the blame for that lies at Baypark's door. But in order that justice be done, I am satisfied that this is a proper case to allow the appeal, set the judge's order aside as against the second defendant and order a retrial, probably before another judge, so that the issue of whether he has received and whether he ought to have received notice can be freshly litigated and argued. I would allow the appeal against the second defendant but, as I say, that is probably a pointless exercise. So the case must go back and be heard again.
23. For the avoidance of any doubt, the rehearing is to be confined to that question of negligence of Baypark. The issues of vicarious liability are not to be re-litigated because the case there is hopeless. So it goes back on that ground alone.
24. The issue of whether Higham, the management company, are vicariously responsible for Baypark is not to be litigated again.

Order: Remitted back to Lower Court