UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 172 (LC)

UTLC Case Number: ACQ/139/2012

 

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

COMPENSATION – compulsory purchase – whether any reasonable prospect of claim succeeding –direction to file all evidence relied on - whether evidence sufficient to support a claim – rule 8(3)(a) and (c), Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 - claim struck out

 

IN THE MATTER OF A NOTICE OF REFERENCE

 

BETWEEN

(1) MR CYRIL RAPOSE and others

Claimants

and

 

LONDON BOROUGH OF WANDSWORTH

 

Acquiring Authority

 

Re: 312-320 Earlsfield Road,

London SW18 3EJ

 

Before: Martin Rodger QC, Deputy President

 

Sitting at the Royal Courts of Justice, London WC2A 2LL

on

1 April 2015

Mr Archie Maddan, instructed by Saracens, solicitors, for Mr Claude Rapose and Mr Sajid Haq

Mr Andrew Byass, instructed by Furley Page LLP, for the acquiring authority

© CROWN COPYRIGHT 2015

 

DECISION

1.             Mr Sajid Haq is the eighth of sixteen claimants in a claim for compensation against the London Borough of Wandsworth following the compulsory acquisition of land and buildings at 312-320 Earlsfield Road (“the Premises”).  On 1 April 2015 I conducted a case management hearing at the conclusion of which I informed the parties that, in my judgment, the evidence on which Mr Haq sought to rely was insufficient to found a claim with a realistic prospect of success, and that, as a result of his failure to comply with an order made on 2 October 2014, the claim had been dismissed with effect from 30 October 2014.  I will now explain the reasons for my decision.

2.             On 8 August 2003 the London Borough of Wandsworth (“the Authority”) signed the London Borough of Wandsworth 312-320 Earlsfield Road, London SW18 Compulsory Purchase Order 2003 (“the CPO”).  The CPO was made under section 17 of the Housing Act 1985 and permitted the authority to acquire the Premises.

3.             The CPO was confirmed by the Secretary of State on 10 December 2004.  On 13 July 2006 the authority made a general vesting declaration which was served on all those whom it was thought might claim to reside or carry on business at the Premises on 18 July 2006. 

4.             When the general vesting declaration was made the Premises comprised buildings at 316 and 318-320 Earlsfield Road, each of three storeys with basements.  The Premises had originally comprised a terrace of buildings from 312 to 320 Earlsfield Road, but the buildings became dilapidated and in 1989 312 and 314 were demolished by the Authority.  The Premises were, or had formerly been, used for a combination of commercial and residential purposes including the business of a number of travel agencies conducted by twin brothers, Claude and Cyril Rapose. 

5.             Before vesting in the Authority, the freehold interest in the land at 312 and 314 Earlsfield Road was registered in the name of a Mr Diaz.  The freeholds of 316 and 318-320 Earlsfield Road were registered in the name of a Mr Ramos.  Neither has made any claim for compensation or played any part in these proceedings. 

6.             There were also a number of leasehold interests in the Premises held by members of the Rapose family.  Mr Brendan Rapose held three long leases of 312-314, 316 and 318-320 Earlsfield Road for terms of 99 years from 1983 and 1988, each of which was registered at the Land Registry.  Mr Claude Rapose had an unregistered lease for a term of 20 years from 1 January 1990, which was the subject of a subsequent amendment purporting to extend the term to one of 20 years from 1 February 2000.  Mr Cyril Rapose had a charge over Brendan Rapose’s interest in 312-214 Earlsfield Road.

7.             The confirmation of the CPO and the making of the general vesting declaration by the Authority have been challenged by the Rapose family in at least two applications to the High Court for permission to seek judicial review.  Details of these proceedings have not been provided to the Tribunal, but it appears that one such application was dismissed by Collins J in 2006, before the general vesting declaration was made; at the hearing on 1 April 2015 I was told that another more recent application was finally refused by the Court of Appeal in January this year.  The registration of the Authority’s interest in the Premises was also challenged unsuccessfully in proceedings before the Adjudicator to the Land Registry. 

8.             The Authority entered onto and took possession of the Premises on 10 October 2006, and   shortly thereafter it completed the demolition of all of the remaining buildings on the site.

9.             Claims for compensation for the compulsory acquisition of their interests were first notified to the Authority on 9 October 2006 by Mr Cyril Rapose on his own and his brother’s behalf and on behalf of Mr Haq and 42 other claimants.  The claimants were, for the most part, members of the Rapose family, including Brendan Rapose, or others who had lived, or claimed to have live, at the Premises immediately prior to their acquisition.  The claimants also included a number of companies and business entities of unspecified status which may either have been partnerships or simply the trading names of individuals.  One such business was Apex Travel which has subsequently been said to have been a business of Mr Haq’s. 

10.         On 30 July 2012 Mr Cyril Rapose referred the claims for compensation to the Tribunal on his own behalf and on behalf of the other claimants.

11.         On 22 May 2013 directions were given by the Tribunal requiring the claimants to confirm that Mr Rapose had their authority to represent them in the reference or, if he did not, requiring that they submit details of their own claims.  Those claimants who did not comply with the order were warned that their claims in the current reference would be struck out.  In due course the number of claimants was reduced to 16, all of whom confirmed on 27 June 2013 that they were content to be represented by Mr Cyril Rapose. 

12.         Directions were given for the exchange of expert valuation evidence, but no valuer was instructed by the claimants (despite further time being allowed by the Tribunal).  I have been told by Mr Rapose that the claimants had been unable to find a valuer who would value the Premises which had now been demolished.  Mr Lidgley, the Authority’s valuer had offered to provide information to assist any valuer instructed by the claimants to understand the nature of the Premises.

13.         The reference was listed for final hearing by the Tribunal on 3 September 2014 with the expectation that three days would be required.  The only valuation evidence then available was that filed by the Authority, which placed no value on the interests of claimants other than Brendan, Cyril and Claude Rapose.  No evidence of loss had been filed on behalf of other claimants, although many, including Mr Haq, had signed a pro forma statement prepared for them by Mr Rapose in which they asserted that they had occupied all of the Premises and claimed unquantified compensation. 

14.         The statement signed by Mr Haq on 27 June 2013, which constituted the only evidence in support of his claim when the hearing commenced on 3 September 2014, filled a single sheet of paper and took the form of a series of questions and answers which included the following:

“5. Exactly what parts of the property did they occupy.  Was it one room, two rooms or more? Did they occupy it exclusively or did they share it or part of it with anyone else?  Each room and all areas within 312-320 Earlsfield Road (“property”), at various times and from 1972 to 10 October 2006, were either exclusively occupied or shared by the claimant.

6. Was their occupancy residential or for business purposes? The occupancy was for both residential and business purposes for the claimant’s own interest and benefit.

7. On what terms did they occupy? What was the rent? If any, what was the duration of the tenancy or licence? The occupation duration was as the claimant desired and on terms that met the claimant’s own interest and benefit and for the claimant to achieve the claimant’s own aspirations.

8. During what period was this claimant in actual occupation? At various times from 1972 to 10 October 2006, the claimant was in actual occupation.”

Identical answers to the same questions were given by each of the claimants, including Apex Travel.

15.         At the commencement of the hearing on 3 September 2014 Mr Claude and Mr Cyril Rapose were present and informed the Tribunal that they intended to represent themselves, Mr Brendan Rapose was represented by counsel, Mr Haq was present on his own account although he did not address the Tribunal other than to indicate that he was there to represent himself. All of the remaining claimants were represented by Mr Cyril Rapose.  The Authority was also represented by counsel.

16.         The parties asked for time to negotiate and late in the afternoon of 3 September a settlement was achieved in respect of the claims of all of the claimants except Mr Haq.  Mr Haq was no longer present when, at the end of the day, the Tribunal was informed that terms of the settlement had been agreed by the other parties; he was said to have been taken ill and had left the building.  All parties present confirmed that, despite the absence of Mr Haq, they intended as between themselves to be bound by the terms which they had agreed.  Those terms provided for the payment within 28 days of compensation of £420,000 each to Mr Claude Rapose and Mr Brendan Rapose in full and final settlement of all claims in the reference, including those of Apex Travel and the other claimants represented by Mr Rapose; on such payment being made the reference was to stand dismissed. 

17.         There was an expectation that Mr Haq would also agree to the same terms, and on that basis the Tribunal adjourned the hearing and directed that a minute of order be submitted, signed by Mr Haq.  The next day the Tribunal was informed that Mr Haq had indeed consented to the terms of settlement but when the version of the minute signed by Mr Haq was produced it became apparent that he had done so subject to certain amendments which had not been agreed by the other parties.   Shortly after the amended terms were supplied an application was submitted by Mr Claude Rapose purportedly bearing the signature of Mr Haq and requesting the withdrawal of his reference.  The Authority was not prepared to consent to the withdrawal of the reference otherwise than on terms as to costs. The Tribunal therefore made an order on 8 September 2014 (correcting a previous order of 4 September) recording the settlement agreed between all parties other than Mr Haq and directing that a hearing should take place as soon as possible at which the Tribunal would consider whether Mr Haq’s claim ought to be struck out as having no reasonable prospect of success on the evidence filed or whether he should be permitted to withdraw his reference and, if so, on what terms.

18.         On 2 October 2014 a case management hearing was convened at which Mr Claude Rapose and Mr Cyril Rapose asked the Tribunal to set aside the order of 8 September 2014 on the grounds that there had been a misunderstanding in relation to certain of the terms agreed.  That application was dismissed.

19.         At the same hearing Mr Haq was represented by counsel, Mr Brown.  It was specifically acknowledged on Mr Haq’s behalf that the pro forma witness statement prepared for him by Mr Rapose, and which comprised the only evidence submitted in support of his claim, was “very limited” and that before any determination could be made of Mr Haq’s entitlement to compensation further instructions would need to be taken and evidence filed.  It was suggested by Mr Brown that on the basis of the instructions which he had received Mr Haq may be entitled to compensation under either or both of sections 29(2) or 37 of the Land Compensation Act 1973.  He asked for a period of four weeks within which to submit further evidence.  Mr Brown also explained that Apex Travel, which had been listed as the ninth claimant, was a business conducted by Mr Haq and that he may also be entitled to compensation in the form of a disturbance payment in respect of loss sustained in that business.  It was pointed out that “Apex Travel” had confirmed to the Tribunal that it was represented by Mr Rapose and that the terms of settlement had been agreed by him on its behalf.

20.         The position taken in relation to Mr Haq’s claim by Mr Reed, counsel for the Authority, was to acknowledge that, if, as was asserted in his pro forma statement, Mr Haq had been in residential occupation of the Premises at the time possession had been taken, he may be entitled to a disturbance payment.  The losses said to have been sustained by the business of Apex Travel could not be the subject of further compensation because Apex Travel had authorised Mr Rapose to represent its interests and any claim on its account had been compromised by the terms of settlement agreed on 3 September 2014.  Mr Reed agreed that Mr Haq’s potential claim required to be determined by the Tribunal but could not yet be so determined because of the inadequacies of the evidence previously submitted.

21.         On 2 October 2014 the Tribunal gave Mr Haq permission to file and serve a further witness statement “setting out the full details of his claim” by 4.00pm on 30 October 2014.  That permission was conditional on him paying the sum of £2,500 as security for costs.  Paragraph 5 of the order was in the following terms:

          “In the event that Mr Haq fails to comply with the conditions set out in paragraph 4 and/or fails to file and serve the further witness statement provided for in paragraph 3 the reference shall stand dismissed.”

22.         On 30 October 2014, having paid the required sum as security for costs, Mr Haq filed a witness statement.  The witness statement is in the now very familiar style of Mr Claude Rapose and reflects the concerns and demands which Mr Rapose had continued to voice after the dismissal of his application to set aside the order of 8 September 2014 by which his claim had been settled by consent.  These included that the original general vesting declaration had not been properly served and therefore had not been effective to vest the Premises in the Authority, that the Authority’s representatives had been aware of this and had misled the Tribunal by refusing to acknowledge it, and that the Tribunal’s orders recording the terms of settlement ought to be set aside.  It was also said that the compensation payable under the terms of settlement had not been paid by the Authority within the 28 days stipulated in the agreement and that the reference should therefore continue to a new hearing at which the claims of all the claimants should be determined.  This complaint has been the subject of substantial correspondence from Mr Rapose to the Tribunal but it was not the purpose of the case management hearing on 1 April 2015 to consider it.  The Authority has made it clear to Mr Claude Rapose and Mr Brendan Rapose that it considers that it is unable to make the payments due to them until they each provide confirmation of identity and details of a bank account into which the payment can be made, which they have refused to do.       

23.         Having considered the witness statement filed by Mr Haq the Tribunal directed a further case management hearing at which it would consider whether the evidence now provided was sufficient to support a claim for compensation.  It proved difficult to arrange that hearing as Mr Haq informed the Tribunal that he was out of the country for a lengthy period.  He gave Mr Rapose’s address as his address for service and could not be contacted by telephone or e-mail.  He permitted Mr Rapose to write to the Tribunal on his behalf challenging the settlement and demanding that the proceedings be stayed to permit the most recent judicial review proceedings to be concluded. 

24.         At the hearing on 1 April 2015 Mr Haq was represented by Mr Maddan of counsel, who also appeared on behalf of Mr Claude Rapose to invite the Tribunal to set aside the order of 8 September on the grounds that payment had not been made within the time contemplated by the order.  It was made clear that the sole purpose of the hearing was to consider Mr Haq’s claim.  It was pointed out that if either Mr Claude Rapose or Mr Brendan Rapose frustrates the payment of compensation as a means of prolonging the reference, or with a view to re-opening the complaints about the terms of settlement which were dismissed by the Tribunal on 2 October 2014 there was a risk that the reference would be struck out as an abuse of process.  Mr Bypass, who appeared for the Authority, repeated that it was anxious to make the payment but could not do so until details of a bank account were provided.       

25.         Much of the witness statement of Mr Haq is concerned with the validity of the vesting declaration, and resurrects arguments which had first been considered and disposed of in 2006 when permission to apply for judicial review was refused.  It seeks a stay of the reference to enable a further judicial review to be sought.  Those passages do not provide material capable of supporting a claim for compensation. 

26.         In paragraphs 6-10 of Mr Haq’s statement he explains the nature of his interest in the Premises.  He took occupation in 1988 under what he describes as “an irrevocable licence” granted by Mr Claude Rapose which allowed him to live and work from the premises for as long as he chose.  He had remained at the premises for 18 years paying no rent, utility bills or council tax, all of which were met by the Rapose family.  He had unfettered access to each part of the premises and in particular occupied the second floor front bedroom at 316 Earlsfield Road and rear rooms at that address for storage.  He enjoyed communal living facilities at 318, and could park on the vacant part of the site.  Exhibited to the statement is a document which I take to have been prepared by Mr Rapose describing the basis of Mr Haq’s occupation as an “irrevocable licence”.

27.         In paragraph 14(g) of the statement Mr Haq lists a number of heads of compensation to which he suggests that he is entitled, namely, a home loss payment, an occupier’s loss payment, a disturbance payment, re-housing and compensation for loss of profits arising from the closure of Apex Travel.  In paragraph 34, in the alternative to his claim that the vesting was unlawful and for a stay of his claim, Mr Haq repeats his claim for compensation for removal from his home and loss of his business.

28.         I assume that the factual assertions contained in Mr Haq’s witness statement filed on 30 October 2014 are true but nonetheless I am satisfied that there is nothing in it which justifies the description of his status as being attributable to an “irrevocable licence” to occupy the premises.  The reality appears to be that he was an employee or business associate of Mr Rapose who occupied with Mr Rapose’s consent but with no security of any kind.  There is no suggestion in his witness statement that he made any financial contribution to the acquisition of any of the properties, nor any account of a specific grant of rights by Mr Rapose, nor any basis on which it could be considered that his entitlement to occupy was “irrevocable”.  Mr Haq asserts no legal interest in any part of the Premises although clearly he has been permitted to share occupation with the Rapose family, as, it would appear, have a large number of other people.  As an explanation of his status or interest the witness statement takes Mr Haq’s case no further forward than the original pro forma statement prepared by Mr Rapose for all of the claimants.

29.         Mr Maddan submitted that the witness statement was sufficient to support a claim that Mr Haq’s interest in the premises was as a rent-free tenant of a room on the second floor of 316 Earlsfield Road who also enjoyed rights to use the remaining space within the property both for living and working.  I do not accept that the statement supports any such claim; like the previous statement it is equivocal and imprecise.  Nowhere in that statement does Mr Haq assert that he was entitled to the exclusive use of any part of the premises, including the room on the second floor of 316; nor had he made such a claim when specifically asked the relevant question in paragraph 5 of his original statement in which he said only that at various times and from 1972 to 10 October 2006, the whole of the Premises were either exclusively occupied or shared by the claimant.  The effect of his evidence (which is identical in this regard to the evidence previously filed on behalf of other claimants) was that all of the claimants were permitted to share the use of the whole of the Premises on a rent-free basis.  Mr Haq specifically describes himself as a licensee and nothing in his witness statement provides any grounds for thinking that that is not a proper description of his status.  It is on that evidential basis that the viability of Mr Haq’s potential claims must be considered.

30.         To be entitled to a home loss payment a claimant must have an interest in the relevant property within section 29(2) of the 1973 Act.  A gratuitous licensee does not have such an interest.  Even if Mr Haq had a relevant interest the amount of the payment to which he would be entitled would be limited to his share of the statutory maximum sum of £4,600.  It is clear that there were a number of other occupiers of the same property (including at least the 8 other individuals who were claimants) with whom Mr Haq would in principle be required to divide that sum, but whose claims have already been compromised. 

31.         To be entitled to an occupier’s loss payment under section 33C of the 1973 Act Mr Haq would have to show that he had a freehold or leasehold interest in the Premises.  He has not asserted either and for the reasons already given I do not accept Mr Maddan’s submission that his evidence allows an inference that he occupied one room as a tenant with rights to use the remainder of the Premises. 

32.         To be entitled to a disturbance payment under section 37 of the 1973 Act Mr Haq would have to show that he had been in lawful possession of the Premises, that he had no interest for which he was otherwise entitled to compensation, and that his occupation pre-dated notice of the intended acquisition.  On the basis of his witness statement he can show all three of those things.  What he cannot show is that he has incurred any expense in removing from the land from which he was displaced.  Section 38(1)(a) limits the amount of a disturbance payment to the reasonable expenses of the person entitled to the payment in removing from the land.  Mr Haq has provided no evidence that he incurred any expenses in removing himself from the Premises.  The address which he has provided to the Tribunal as his current address is 1 Algarve Road, which is the building next door to the Premises, and it was acknowledged on his behalf by Mr Maddan that any expense he incurred in removing his belongings was minimal and has not been quantified.

33.         Mr Maddan also contended that Mr Haq is entitled to a disturbance payment under section 38(1)(b) of the 1973 Act in respect of losses sustained by him in the business of Apex Travel which was simply a trading name under which he conducted his own travel agency business.  I do not think such a claim is sustainable.  Although it may have done so irregularly, “Apex Travel” participated in the reference as a claimant in its own right, and supplied confirmation to the Tribunal that Mr Rapose was authorised to represent its interests.  No evidence of any loss was provided in support of its claim, nor any explanation of its status or legal personality.  The authorisation specifically provided to the Tribunal was relied on by the Authority in reaching settlement with all of the claimants other than Mr Haq on 3 September 2014.  It is not suggested by Mr Haq in his witness statement (or on his behalf by Mr Maddan) that Mr Rapose was not authorised by Mr Haq to represent the interests of Apex Travel, as had been specifically confirmed in the document submitted to the Tribunal on 27 June 2013. Having authorised Mr Rapose to conduct negotiations on behalf of Apex Travel, and those negotiations having resulted in a compromise, I am satisfied that it is not now open to Mr Haq to assert that he and Apex are one and the same and that further compensation should be paid to him in respect of losses sustained in the business conducted by him under its name.  He is bound in respect of any such loss by the compromise negotiated on his behalf by Mr Rapose. 

34.         For these reasons I am satisfied that Mr Haq has failed to provide sufficient evidence to sustain any claim for compensation.  It is quite clear that any potential claim he might have had would have been of very modest value, a fact which seems to have been recognised by Mr Haq when he asked the Tribunal for consent to withdraw the reference on 4 September 2014.  No evidence justifying the claim was provided by the time of the original hearing and it was an indulgence to Mr Haq that he was allowed a further opportunity to improve on the material he had previously supplied.  The order of 2 October made clear the consequences of a failure to provide full particulars of the proposed claim within the additional 28 days then allowed, yet at the conclusion of the hearing on 1 April the claim presented by Mr Haq was no further advanced than it had been when that order was made.  It was accepted on the previous occasion that the evidence was insufficient to sustain a claim.  Mr Maddan requested yet more time within which to file evidence, including expert evidence, but I am satisfied that any further such indulgence would be unfair to the Authority and that no remaining claim of any value or with any realistic prospect of success is available to Mr Haq.  The effect of the order of the Tribunal of 2 October 2014 is, therefore, that the claim stood dismissed with effect from 30 October 2014.

35.         I would add this concerning the references which were settled by agreement on 3 September 2014 but which have not yet been concluded because payment has not been made.  The terms of the parties’ agreement are clear and there is nothing which the Tribunal can do to rewrite those terms.  The Tribunal’s order of 8 September 2014 directed that on payment of the agreed compensation the references would stand dismissed, but gave the parties permission to apply.  If the parties remain at loggerheads over the implementation of the terms of settlement a proper application should now be made, on notice to the other party, making clear the relief which the Tribunal is being asked to grant.

 

                                                                                                                                                                                                                                                Martin Rodger QC,

                                                                                                Deputy President

 

                                                                                                22 April 2015