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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 523 (6 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/523.html Cite as: [2001] EWCA Civ 523

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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 Friday, 6th April 2001

Friday, 6th April 2001

1. LORD JUSTICE WARD: This is an application by Miss Smith for permission to appeal specifically against the order for costs made against her by Judge Goldstein as long ago as 29th October 1999. In order to succeed she would have to show that his order striking out her claim for forfeiture was wrong.
2. There are two points on which the judge found against her. The first is that he accepted that she was estopped from alleging that there had been a breach of the covenants of the lease, and when the former lessee of this long lease, Dr Moore, effected considerable structural alterations to the property without consent, there would be a question mark about whether the claimant had consented. But the judge dealt with this on the basis of a letter referred to on page 3 of his judgment, being a letter of 12th July 1988, which he recites on page 4 of his judgment, the effect of which was that some £11,000 was received in full and final settlement of all claims that Miss Smith had against Dr Moore.
3. That letter is not in the bundle. Without it and without the other letter the judge refers to of 21st June 1988, it is impossible for me to consider that ground of the appeal and to test it against the second page of a letter which Miss Smith produces suggesting that a figure of £5,000 odd was to be received "in full and final settlement of all claims against your client", I assume Dr Moore, such settlement to be conditional on the district surveyor and planning department being satisfied with the remedial work carried out by your client".
4. So Miss Smith would seek to argue that any settlement is conditional on those terms. It is impossible to judge that without the letters. So I shall adjourn this matter to give Miss Smith the opportunity to deal with them. She says that a licence to assign was in fact a forgery even though in her evidence she acknowledged that it was her signature. I think this needs to be examined carefully as well and it may pay Miss Smith to make some enquiries of the conveyancing solicitors to see exactly what licence she did give for the assignment of the lease from Dr Moore to Mr Moris Mav Ropoumiottis. Miss Smith has produced an original document which has never been signed and that is why she says that it is a forgery. This does not seem a promising part of her case.
5. The second ground before the judge was that forfeiture would not proceed because leave of the Court had not been sought as is required by section 1(3) of the Leasehold Property Repairs Act 1938. Two points arise: (1) Miss Smith says there is an originating application amongst the papers. I do not know what the application is for. More importantly I do not know if leave was actually given, so that the enquiry Miss Smith has to make is to find out from the county court what happened on 2nd January, the return date of that originating application.
6. But she may have a better point and that is that there is some authority in Church Commissioners for England VE' v Best Manufacturing Company Limited [1957] 1 KB reports at 238. In the judgment of Lord Goddard at page 246 it would seem that if forfeiture notice under section 146 be served on the building society, and the building society serve a counter notice but the lessee does not, then the lessee cannot claim the benefit of the building society notice.
7. Here it is pleaded that it was the building society who serve counter notice. The judge does not refer to that case. I am surprised that he does not if it was referred to, and I am surprised if it was handed by counsel to Miss Smith that counsel did not draw it to the judge's attention. This does seem a promising line of attack, but unless Miss Smith can overcome the estoppel point, it may not much help her.
8. I shall adjourn this application for her to make better attempts to get the papers in order. She can have a copy of this judgment at public expense, and I hope that she may be able to go back to the Citizens Advice Bureau and might be able through their good offices to seek some pro bono help from a member of the landlord and tenants bar because I think she is deserving of that help.
(Application adjourned; copy of judgment to be sent to applicant at public expense)