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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 >> Smith v Spaul [2001] EWCA Civ 2099 (13 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2099.html Cite as: [2001] EWCA Civ 2099

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Goldstein)

		Royal Courts of Justice Strand London WC2 Thursday, 13th December 2001

1. LORD JUSTICE WARD: This is a judgment that I give on the resumed hearing for permission to appeal. I dealt with this matter on 6th April. My judgment then is on the court file and has been given to the respondent. The respondent appears today voluntarily, and I am grateful to solicitors and to Mr. Alomo for their attendance and for their attempt to help me. I am giving permission to appeal in this case but limited to two matters only. The first is to consider whether, as a matter of law, there was an effective counter notice served after Miss Smith served her section 146 notice. Church Commissioners for England v Best Manufacturing Company [1957] 1 QB 238 is an authority to which Mr. Alomo, in the best traditions of the bar, referred both the judge and the litigant in person. That case would suggest that a lessee in possession could not rely for the purposes of the 1938 Act upon a counter notice served by his mortgagee. Mr. Alomo counters that by seeking to distinguish the Church Commissioners case from this case on the basis that there the mortgagee was not in possession. I understand that argument. One will need to consider, among other cases, Egerton v Jones [1939] 2 KB 702, but it seems to me that it is at least an arguable point that the court can consider. I am far from saying that Miss Smith will succeed on it, but at least it should be open to her to attempt to do so.
2. Allied with that, if, and it is a big if, Miss Smith is able to produce satisfactory evidence that an originating application, appearing in our bundle at page 009, returnable to the Central London County Court on 2nd January in case No 23627, was an application for the relevant leave, then, if she can produce an order granting that leave, then she may seek to put that before the Court of Appeal.
3. The respondent, Mr. Spaul, was the defendant to that application, and I therefore rely upon him and his solicitors to be able to inform the Court of Appeal (a) whether application was made for the relevant leave, and (b) what happened upon that application. If application was made in the very proceedings which come before the judge, then it is arguable at least that he ought to have dealt with that application for leave and determined it before he went on to dispose of the action on the basis that leave had not been granted. That is a point that should be looked at.
4. The next point that worries me is this. The judge disposed of this matter on the basis of an estoppel or waiver, holding in effect that the settlement of an action brought by Miss Smith against Dr. Moore estops her from pursuing the current claim against Mr. Spaul. That might be fine and well if the issues in the two sets of litigation were the same. I am not sure that they were. If the proceedings against Dr. Moore were that he had breached the lease by carrying out work without building consent and without her written consent, then the settlement would preclude Miss Smith relying again upon a breach of a lease of claiming failure to obtain those relevant consents. But the breaches of which she complains in the section 146 notice before the court at page 153 in our bundle, this being a notice dated 19th May 1995, includes arguably, it seems to me, breaches for continuing states of disrepair, and it seems to me to be arguable that if, as a result of work done in Flat C, for which it has to be assumed permission was given, was nonetheless work so badly done that it results in a continuing state of disrepair to the property, then the landlord is entitled to complain of that continuing state of disrepair, and if it means that the only way of curing it is to reinstate the building, that is tough luck on the tenant. Arguably, the breaches complained of at page 153, including the window joinery in poor and deteriorating condition, and the leaking of the water complained of in F, are continuing states of disrepair unrelated to the grant of permission for work to be done. In a nutshell, therefore, while Miss Smith may be estopped from complaining about a lack of permission, she may not be estopped from complaining about continuing disrepair. That therefore is a second matter that should be argued or perhaps a third matter that should be argued.
5. On those bases Miss Smith can have permission to appeal. But once again I urge her to seek some help because this is not an easy argument to advance. The documents are still in a state of confusion and efforts must be made to get the paperwork right before she comes back to the Court of Appeal. I will grant permission and the costs, insofar as costs were incurred today by the tenant, I warned them that they were at risk of not getting their costs. There will be no order for the costs of their attendance.
Order: Application granted; no order for the costs of the respondent's attendance.