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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> United Building & Plumbing Contractors v Kajla [2001] EWCA Civ 1740 (15 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1740.html Cite as: [2001] EWCA Civ 1740

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DERBY COUNTY COURT
(His Honour Judge G C Styler)

		Royal Courts of Justice Strand London WC2 Thursday, 15th November 2001

1. LORD JUSTICE HENRY: Mr Kajla, who is a litigant in person, applies for permission to appeal the order of His Honour Judge Styler of 22nd June 2001. He also applies for a short extension of time, which is granted.
2. The facts are set out in the transcript of the judge's judgment. The issues may be summarised in this way. The defendant, Mr Kajla, is a sub-postmaster and property owner. The respondent is a building contractor, whose principal is a Mr Ubhi. Mr Kajla engaged the respondent to carry out building works relating to his property, in particular "improvements and security". Part of those works were to be funded by way of a local authority grant. There was disagreement as to the scope and terms of the building contract. Mr Kajla contended that all improvement and security works were to be carried out for a fixed sum of £21,000. Mr Ubhi contended that the contract was for a higher estimated sum of £23,265 and that there were a number of security and additional works requested that were outside the scope of the original contract. There was also disagreement as to performance. Mr Kajla contended that some of the works were defective and/or incomplete. He therefore sought to withhold payment of a portion of the contract sum. Mr Ubhi contended that he carried out the contract and the additional works and that they were not defective and/or incomplete. Mr Ubhi sent Mr Kajla an invoice for £13,710 in October 1998 and engaged a debt collection agent to retrieve the outstanding sum. Mr Ubhi issued proceedings on 16th May to recover the allegedly outstanding sum of £13,710 plus interest and costs. Of this, £3,460 related to a shortfall on payment of the contract sum; £3,195 related to the costs of additional security works; and £7,055 related to the cost of other additional works.
3. The judge had a joint expert's report quantifying the cost of repairs or replacement, in the event that the court determined that the repairs or replacements were necessary. He also heard evidence from both the respondent and the appellant. Mr Kajla called his wife and his father-in-law to give evidence. Mr Ubhi called Mr Dol and Mr Sharma to give evidence.
4. The judge identified the issues as being:

(a)What were the terms and state of the contract between the parties?

(b)What payments had been made?

(c)What works were in fact done?

(d)What works, if any, were additional works done at the request of the applicant?

(e)What was the reasonable value of such additional works?

(f)What deduction, if any, should be made for incomplete and/or defective works?

5. The judge made the following findings of fact:

(a)Having considered the evidence about the sum of £21,000, he found, on balance, that there was indeed an agreement for improvements and security works for the inclusive price of £21,000. On that issue he preferred the evidence of Mr Kajla to that of Mr Ubhi.

(b)It was common ground that a total of £21,300 had been paid by Mr Kajla to Mr Ubhi.

(c)However, there was still a claim for additional works over and above the contracted improvement and security works. On that, the judge preferred the evidence of Mr Ubhi to that of Mr Kajla and gave reasons for that preference.

(d)Mr Kajla had in fact requested those additional works. There again, the judge preferred the evidence of Mr Ubhi to Mr Kajla.

(e)Mr Ubhi was entitled to the reasonable cost of such additional works, which he assessed at £6,505 on the basis of Mr Ubhi's evidence.

(f)Some of the works were defective and/or incomplete. He assessed the value of them to be £2,244, to be deducted from the award for additional works, on the basis of the expert's valuation of quantum in the event of liability.

6. So the learned judge ultimately found in favour of Mr Ubhi, but for a much lower sum than the sum that had been claimed. The claim had been for £13,710. The learned judge gave judgment for Mr Ubhi in the sum of £4,261, less than one-third of the claim.
7. The grounds of appeal are these. It seems that Mr Kajla does not challenge the fact that the works described as additional works were in fact done. However, he does seek to contend that (i) the learned judge was wrong to find that the additional works had been requested by the applicant; (ii) the judge was wrong to find that the additional works were additional, since they were part of and necessary for the performance of the main fixed contract (an issue of liability); (iii) the judge was wrong to quantify the reasonable value of the additional works in accordance with the claimant's estimate and in the absence of any expert evidence in support (an issue of quantum); and (iv) the judge was wrong to quantify the value of incomplete and defective works at a lower sum than the independent quantity surveyor's agreed figures.
8. It will be seen that, on all the live issues, there was a conflict of fact between Mr Kajla and Mr Ubhi. That depended on the credit of each witness. The judge reached the conclusion that, in relation to the four live issues that were primarily argued before him, he preferred Mr Kajla's evidence on one, but preferred the evidence given by Mr Ubhi on the other three. They are the live issues for the purpose of this appeal. I can say that there was evidence on which the judge could have reached the conclusion that he did reach on each of those three issues. He identified the evidence in his judgment and made clear findings of fact in support of his conclusions. Generally, we have here the judge's findings of fact and nothing to show that he misdirected himself in arriving at them. Therefore, on the case as has been examined to date, it is very difficult to see how Mr Kajla could succeed on an appeal.
9. However, there is one unexplored area of evidence - namely, a point not taken by Mr Kajla - which deserves some consideration. It seems that Mr Kajla wished to compromise this action in and about the month of September 2000. The evidence in relation to what happened then is this (I am summarising Mr Kajla's account of it in answer to questions from the court on his application for permission to appeal). He said that on the evening of 14th September 2000 he went round to Mr Dol's house. Mr Sharma and Mr Dol were there. They knew Mr Kajla and they also knew Mr Ubhi. The conversation came round, so Mr Kajla told me, to Mr Ubhi and his pending court case against Mr Kajla. It was decided, as a result of that conversation, to call Mr Ubhi round, and Mr Dol telephoned and asked him to call without disclosing the reason for the call. Mr Ubhi then came to the house. The conversation turned to the resolution of the case. Mr Kajla said that he offered to pay the court fees if Mr Ubhi were to drop the case against him. Mr Ubhi made clear that he would not take any prior offer without going to court, and that was the end of the meeting. Mr Sharma and Mr Dol subsequently gave accounts of that meeting which were consistent with each other, but which differed from Mr Kajla's account of it. By their account this meeting was set up by Mr Kajla, who hoped that Mr Dol and Mr Sharma would assist in arriving at an amicable settlement of these matters. These gentlemen's account, accepted by the judge, was that when Mr Ubhi arrived, Mr Kajla requested him to settle the matter without going to court, but Mr Ubhi would not agree to this. Mr Kajla then asked Mr Dol to request Mr Ubhi to do this. Finally, after a lot of discussion, Mr Kajla offered £10,000 in full settlement of all the matters between him and Mr Ubhi. According to Mr Dol and Mr Sharma, all present urged upon Mr Ubhi to accept the offer of £10,000, but Mr Ubhi made clear that he would not accept any prior offer without going to court.
10. Mr Sharma and Mr Dol were called to give evidence by Mr Ubhi. Their witness statements had been in the possession of Mr Kajla for some time by then. That evidence was heard by the judge without Mr Kajla taking any objection to it. It may be, had such objection been taken, that no evidence would have been given in relation to that meeting in September if the judge had ruled the evidence to be inadmissible on the basis that it dealt with a meeting designed to settle the matter and therefore covered by the normal "without prejudice" rules. The importance of the point is that the judge relied on an offer allegedly made at the meeting in his judgment, saying (at p.4):

"It is of note that I heard evidence of a meeting in september last year when the defendant was seeking a compromise and discussed the contract with Mr Dol and Mr Sharma, both of whom gave evidence before me. The defendant denies that he offered £10,000 to the claimant to settle. Mr Sharma told me that not only did the defendant offer £10,000 but that the claimant refused it, much to Mr Sharma's irritation and, clearly, his amazement. What is significant, in my judgment, is that in the course of that meeting I am quite satisfied that Mr Kajla did admit to Mr Dol and to Mr Sharma that he had asked for additional works to be done and that is why he realised that he needed to try and compromise this claim."

11. So the judge dealt with what, on his finding (albeit challenged by Mr Kajla), occurred at that meeting; and so far, on appeal, no point has been taken as to it by Mr Kajla - not surprisingly, as he is a litigant in person (and has been, so far as this court is aware, throughout) - and his case is that he never made any such offer.
12. Mr Kajla, who wishes to proceed and to renew his application to the full court, tells me that he cannot afford to pay to be legally represented. However, he has worked in the past with the Citizens Advice Bureau in presenting his original case. He therefore requests the court to invite the Citizens Advice Bureau in this building to act for him. In those circumstances, the order that I make is that this application for permission be renewed to the full court, consisting of two members. At that hearing it is hoped that Mr Kajla will have the assistance of representation from the Citizens Advice Bureau within this building. The respondent, Mr Ubhi and United Building and Plumbing Contractors, will be notified of this hearing and are invited to attend, if so advised. The respondent and Mr Kajla should be sent copies of the court's judgment in this matter.
Order: application for permission to appeal adjourned to be renewed before the full court consisting of two members; transcript of this judgment to be supplied to both parties at public expense.