England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
HIS HONOUR JUDGE COTTER QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th January 2012

Lord Justice Tomlinson:

1. The appellant in this case is Christopher Anthony Hart and he has asked me to refer to him and to address him throughout as Christopher and I will do that in accordance with his request.
2. Christopher was a part-time student at the respondent college, the Plymouth College of Art, and on Saturday 4 March 2006 he parked in a car park owned by the college, as he understood there to be an informal arrangement permitting students to park there on a Saturday. Students were apparently not allowed to park in the car park during the week.
3. It was the case of the college that students were only permitted to park in the car park until 12.00 on Saturdays and with the express permission of a member of staff. The car park was only staffed until 12.30. Christopher does not accept that these restrictions were necessarily in place and, in particular, he says that he was unaware that there was any such restriction.
4. When Christopher came back to his car in order to leave the car park, which he did at approximately 12.45, he found that all the other cars which had been parked in the car park had left and that the barrier to the car park was down. The barrier was operated by the use of a swipe card by members of staff who had such cards or by an intercom system used to contact the operators should the user not have a swipe card. Christopher, of course, did not have a swipe card. He attempted to contact security through the intercom, but that was no longer manned and, failing to find anyone else to let him out of the car park, he proceeded manually, as he accepts, to lift the barrier in order to facilitate his exit from the car park. He lifted the barrier manually and he drove off.
5. Subsequently, on Monday morning, the college found that the barrier was broken as it would no longer lift or close. Inspection of the CCTV footage disclosed that Christopher had lifted the barrier manually and after investigation the college formed the view that it was this that must have caused the damage to the barrier. It was initially thought that the damage would be capable of being repaired at a fairly modest cost of something of the order of £1,000, but subsequently, according to the college, it became apparent that the barrier was beyond economic repair and that it needed replacing. It was replaced. It was replaced by a barrier which cost £2,952 plus VAT, totalling therefore £3,428, and in due course the college brought a claim against Christopher in the small claims court in Plymouth seeking to recover that amount. I should have mentioned that the college also reported Christopher to the police on the basis that he had potentially been guilty of the offence of causing criminal damage.
6. Christopher denied the claim brought in the small claims court on the basis that it had not been proved that his admitted action in lifting the barrier had caused the damage to the barrier. He adduced expert evidence at trial, which indicated that the kind of force he used was unlikely to have broken the barrier and he contended that it must have already been broken. He also claimed that the amount claimed was excessive as it was based upon replacing the barrier with a more up-to-date version. He counterclaimed in respect of what he said was loss and damage suffered by him through the anxiety and distress which the legal proceedings had caused him and, in particular, he referred to his inability to find permanent employment and his loss of trust in the legal profession.
7. At some stage before the trial in the small claims court Christopher was issued with a police caution, apparently as a result of receiving advice from the duty solicitor to the effect that he should accept his guilt. Subsequently that caution has been removed from the record, a matter of which Christopher was informed by a letter from Superintendent John Vellacott, the Head of Criminal Justice at the Devon and Cornwall Police in a letter dated 22 March 2011. In that letter in the second paragraph Superintendent Vellacott says:

"I have now reviewed this case and on balance you did not make a clear and reliable admission to the offence under question. On these grounds it would be unjust for the caution to remain."

And so the caution has been removed from the record.

8. The matter came before Deputy District Judge Williams in the Plymouth County Court on 13 May 2010 as a claim in the small claims court. The Deputy District Judge found in favour of the college on the basis that the evidence was that Christopher had lifted the barrier manually in a way in which it was clearly not meant to operate and that, subsequently to that and without any other interference with the barrier, it had stopped working. The judge found that the barrier must have been working before Christopher manually lifted it because there had been other users of the car park that morning who had managed to leave the car park without having to lift the barrier and so the judge was satisfied, to the standard of proof applicable in civil cases, that the actions of Christopher had caused the barrier to break. The Deputy District Judge considered the expert evidence both as regards the circumstances in which the barrier became broken and the force that must have been used and the cost of replacing the barrier, but found that the cost claimed was a reasonable figure in all the circumstances and he accordingly gave judgment for the college ordering Christopher to pay damages in the sum of £4,152.33 including interest together with costs of £523. He dismissed the counterclaim on the basis that no legitimate claim had been made out or no loss had been shown.
9. Christopher appealed against that judgment to HHJ Cotter sitting in the Plymouth County Court. The appeal was brought on the basis of a number of grounds, one of the grounds perhaps the principal ground of appeal or at any rate one which featured quite strongly in the argument being that the CCTV footage had subsequently been shown to have been unreliable in one respect and indeed, as Christopher would now say, had been tampered with by the college. The CCTV footage gave the impression at trial that after Christopher had lifted the barrier it had dropped back down to its original position. However, after the trial Christopher discovered that the footage gave a wrong impression because the mechanism of recording meant that what one saw was in fact just a repeat of the beginning of the footage which of course showed the barrier in the down position. There was therefore no reliable evidence as to how the barrier ended up after Christopher had lifted it and left the car park.
10. Christopher also contended before the circuit judge, HHJ Cotter, that the Deputy District Judge had failed to take into account the expert evidence which he had presented to the court and that he had failed to set out the nature and extent of the duty of care owed to Christopher by the college in respect of his counterclaim. It was submitted that the Deputy District Judge had erred in not finding that the college had failed to mitigate its loss and its failure to replace like with like and there were many other detailed grounds of appeal.
11. The appeal first came before HHJ Cotter on the 10 October 2010. The judge on that occasion dismissed the appeal on liability on the basis that Christopher had failed to show that the misapprehension as to the nature of the CCTV footage would have made any material difference to the Deputy District Judge's ruling, as the final resting position of the barrier was not material to his conclusion as to the causation of the damage. HHJ Cotter also found that the Deputy District Judge had properly considered all of the expert evidence put before him but had, as he was entitled to do, preferred the evidence of the representatives of the college and furthermore had, in reaching that conclusion, not erred in law in any way or acted in a way which resulted in the trial being unfair.
12. Unfortunately HHJ Cotter had to adjourn consideration of the appeal so far as concerns the quantum of damage as the transcript of the Deputy District Judge's judgment was not complete, but the court reconvened on 21 November 2010, on which occasion HHJ Cotter dismissed the appeal against the quantum of the award. He found that the Deputy District Judge had properly considered the evidence as to alternative costing put before him and had properly reached the conclusion that the claim to replace with a new barrier was in all the circumstances a reasonable claim.
13. At that hearing Christopher raised a new ground to the effect that, as the college was apparently entitled to some extent to relief against Value Added Tax, it should not be permitted to recover that element from him. The judge was unable to deal with that aspect of the case on that occasion because the college had not had an opportunity properly to respond and to place evidence before the court, but subsequently a witness statement of George Dexter, the Director of Finance of the college was produced dated 13 December 2010 in which he said at paragraph 2 that:

"The College is registered with VAT but as a largely exempt business (education) cannot recover its VAT on education related items."

14. He went on to say that the barrier was considered to be an education-related item and as such, although the college had had to pay VAT, it was not in a position to recover it from Her Majesty's Revenue and Customs. The judge evidently accepted that evidence because, when the matter came back before him on 2 February 2011, he dismissed the appeal on all grounds and stated in his reasons for refusing permission to appeal to this court that there had been before him a clear statement from a relevant witness on the issue wholly determinative of that issue.
15. Christopher applied to this court for permission to appeal and in particular, in support of his application, he relied on the circumstance which of course had occurred subsequent to the hearing in the Plymouth County Court that the police caution had been withdrawn. He also sought to introduce certain further evidence, in particular the letter from Superintendent Vellacott of Devon and Cornwall Police and also, as I understand it, some yet further evidence in fact emanating from the police to the effect that a representative of the council may have said to a member of the police force at an early stage in this dispute that, when the claim was first being brought, they would have considered accepting a nominal amount from Christopher, something in the region of £100. I should mention that in fact it appears that Mr Dexter himself had at one stage indicated that the matter would be resolved if Christopher were to make a payment of the order of about £1,000, but that offer was not acceptable to Christopher. Hence the matter proceeded to trial.
16. The application for permission to appeal came before Ward LJ in the usual way on the papers and, in refusing permission to appeal, Ward LJ pointed out to the applicant that this is an application for permission to bring a second appeal in which circumstances the court will only give permission if satisfied that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it. Ward LJ concluded that no such point of practice or principle arises and that this is a standard claim for damages decided on its facts.
17. He also made the point that the fresh evidence and, in particular, the removal of the caution had no relevance to the conclusions of the judges below because of course they related to the criminal aspect of matters rather than the civil aspect. Ward LJ remarked also that the counterclaim is hopeless and, in particular, that the council owed to Christopher no relevant duty of care in order to avoid giving rise to loss of the sort claimed in the counter claim.
18. Christopher has today renewed his application before me and has appeared in person over the video link from the Plymouth County Court. He has made his points with great clarity whilst of course conscious of the fact that he has no legal training and it is apparent to me that he has spent a great deal of time researching the relevant law and putting together the material upon which he seeks to rely in order to persuade the court to permit a second appeal. I have to bear in mind, however, that his is a matter which has come from the small claims court and in respect of which there has already been one appeal which was dealt with very fully and carefully by HHJ Cotter in the Plymouth County Court. The nature of the test for permission to appeal in a case such as this is not an inquiry as to whether the trial judge reached an arguably wrong conclusion of fact but rather whether, as Ward LJ pointed out, the case raises some important point of principle or practice such that it should be considered by the Court of Appeal because of its impact in relation to other cases.
19. Christopher has focussed at my invitation on what he sees as the strongest points. He is, in particular, critical of the Devon and Cornwall police because he submits that they are withholding evidence which bears upon two aspects, first of all the extent to which, as he suggests, the CCTV footage may have been tampered with by the college and secondly what he regards as the financial irregularities by the college in failing, as he says, to comply with their internal procurement regulations in dealing with the replacement of the barrier. I pointed out to Christopher whilst he was addressing me that he does not of course deny that he was responsible for lifting the barrier. In those circumstances, whilst I understand that he feels strongly that the CCTV footage may have been tampered with, whatever be the explanation for the extent to which people were misled by their viewing of that evidence, it can have no impact upon the outcome of the claim which simply relies upon the circumstance that Christopher manually lifted the barrier, which as the judge found was not designed to be lifted manually and in a manner which led to its being damaged in breach of the duty of care, which as an ordinary member of the public, he owed to the owner of that property.
20. Likewise, as it seems to me, the judge having found that it was in all the circumstances reasonable for the college to obtain a new barrier, the extent to which Christopher can rely upon any failure by the college to act in accordance with its internal accounting and procurement procedures is really very limited, limited in fact to the point that it has no relevance whatsoever bearing in mind that what was required is a finding that the college was entitled to replace the broken barrier which was incapable of further repair with a new one. That is the finding that was made.
21. Christopher, of course, relies very heavily upon the fact that the police caution has been withdrawn and he of course refers to the fact that the judges below referred to the caution and to the fact that that amounted to evidence of the commission of a criminal offence, that is to say therefore the manhandling of the barrier without lawful excuse. Christopher relies upon that in two ways. Firstly, he says that there is no longer before the court evidence as to the absence of a lawful excuse and secondly he says that the caution was essential from the point of view of the college in order that they could make a claim against their insurers in respect of the damage to the barrier. As to the first point, as it seems to me and as it seemed to Ward LJ, the fact of itself that the caution has been expunged because Christopher had not made a clear and reliable admission that he had committed a criminal offence is of no relevance to the establishment by the college that Christopher was liable pursuant to the civil law of tort for negligently causing damage to the barrier. There may be of course any number of considerations which have informed the decision of the police, not least the different standard of proof which obtains as between criminal and civil cases and the mental element required for commission of the offence of criminal damage, but the fact remains that, bearing in mind Christopher's acceptance that he was responsible for manually lifting the barrier and bearing in mind the finding of the trial judge that the barrier was lifted in a manner which was inappropriate and which therefore could reasonably foreseeably cause damage to it, the fact that the caution has been expunged is ultimately of no relevance to the resolution of the claim in tort against Christopher.
22. Secondly, so far as concerns the insurance position, it may very well be that as between the college and their insurers it was essential for the college to be able to point to the commission of a criminal offence in order to recover under a particular heading of its insurance. The insurance, of course, is not before the court and I do not know what were its terms. The fact remains, however, that irrespective of the position as between the college and its insurers, the college was entitled to bring the claim in its own right in relation to the expenditure which it had incurred without reference to whatever might have been the position as between itself and its insurers. So the effect of the expunging of the caution in relation to the insurance is of no relevance to Christopher's liability to the college.
23. It follows therefore that, whilst I fully understand that Christopher feels very strongly about this matter and whilst I understand this is something which has occupied his mind and his time over the very nearly six years since this incident occurred in the car park in March 2006, I am afraid I am satisfied that the principles which inform the grant of permission to bring a second appeal, particularly in respect of a claim brought in the small claims court, do not allow me to grant to the appellant, Christopher, permission to bring a second appeal in addition to the appeal which has already been very fully considered by HHJ Cotter in the Plymouth County Court. This is notwithstanding the fact that there has been a change of circumstance since that appeal in the shape of the expunging of the caution. For the reasons that I have endeavoured to give that can make no difference to the outcome of this application. I remain, therefore, very grateful to Christopher for the moderate and considered way in which he has placed his submissions before me, but in the circumstances I am unable to grant permission to appeal and this application is therefore dismissed.

Order: Application refused