B2/2000/3849

Neutral Citation Number: [2001] EWCA Civ 850
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL CIVIL DIVISION
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Reid QC)
								             Royal Courts of Justice 	Strand
								London WC2

								Monday 21st, May 2001
B e f o r e:

LORD JUSTICE PETER GIBSON

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THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HACKNEY

Claimant/Respondent

-v-

INNOCENT AMADI & ANOTHER

Defendants/Applicants
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Official Shorthand Writers to the Court)
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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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J U D G M E N T

Monday, 21st May 2001
1.	LORD JUSTICE PETER GIBSON: This is a renewed application by the defendants, Innocent Amadi and Stella Anuforo, for permission to appeal from the order of His Honour Judge Reid QC in the Central London County Court on 21st December 2000, permission having been refused by the judge and also by myself as the single Lord Justice considering the application on the papers. By his order the judge gave possession to the claimant, the London Borough of Hackney (“Hackney”), of Flat A, 2 Dunsmure Road, London N16 (“the property”) by 1st February 2001. He also gave judgment to Hackney against both defendants in a sum of a little over £4000 and a further judgment against Mr Amadi alone for a sum in excess of £6,000. The defendants also apply to this court for a stay of the judge's order. 
2.	The background facts are as follows. In 1982 the property was let by Hackney to Charles Anyanwu. In 1988 he sublet part of the property to Mr Amadi and his then partner. Mr Amadi on 22nd February 1991 in a letter to Hackney said that he understood Mr Anyanwu to own the property; but the subletting was in breach of the terms of Mr Anyanwu's tenancy. 
3.	To go back to 1989, Hackney became aware that Mr Anyanwu was not occupying the property and there was an incident in which a door leading to both the property and another flat was damaged. Hackney thought the property had been vacated and nailed up the door to the property. Mr Amadi then went to a councillor, Jerry Lawless, who procured Mr Amadi's re-admission to the property. Mr Lawless wrote Mr Amadi a signed note in these terms: 
“Further to our conversation this evening, I would like to put in writing my advice to you earlier this evening, that you should gain repossession of your home until the elected representatives of the London Borough of Hackney have had an opportunity to resolve this case.” 
4.	Mr Lawless was then the leader of the dominant Labour group on the Council. Mr Amadi gave evidence to a Council subcommittee investigating “key selling” in 1989 about his own circumstances, and a resolution was passed recording that there was a need to confirm whether Mr Amadi had “established by moral obligation a tenancy with the Council”. There matters rested until February 1991. Mr Amadi called at the Council offices and was informed, as he stated in his letter of the 22nd February 1991, “that we were to be evicted from the flat”. But nothing further happened until February 1994 when proceedings were commenced in the High Court under Order 113 of the Rules of the Supreme Court against those occupying the property. Mr Amadi and Miss Anuforo, who had by then become Mr Amadi's partner, were joined as defendants and the proceedings were transferred to the county court. 
5.	On 7th August 1995 the District Judge made an unless order barring Mr Amadi from defending the proceedings unless he filed a defence within 28 days. By a defence dated 9th August 1995 he denied that Hackney was entitled to claim possession of the property and said that he did not accept that he had been in occupation of the property without the consent of Hackney. In an accompanying affidavit he put that more positively, saying that he was in occupation of the property with the consent of Hackney. But no particulars were given in either document. 
6.	On 8th November 1995 an officer of the Council, Mr Jones, met Mr Amadi at the property. Mr Amadi asked if Mr Jones could grant him a tenancy as he wanted a Council tenancy. Mr Jones said that he was unable to grant a tenancy but would pass his comments to the manager. 
7.	On 9th November 1995 the legal services division of Hackney wrote a without prejudice letter to Mr Amadi as follows:
“I have been instructed by my Client to approach you with proposals for settlement. ... 
The Council is willing to offer you the tenancy of 2A Dunsmure Road, on terms and conditions to be agreed. 
The principal terms would relate to the date on which the proposed tenancy would start, and the arrangements to be made for payment of any possible arrears of rent. 
In the meantime, while the Council is finalising the terms of its agreement, I would be grateful if you could let me know who is currently occupying the property with yourself.” 
8.	On 16th April 1996 in a letter from Mr Amadi to Mr Jones, Mr Amadi recorded that Mr Jones told him that the issue of Mr Amadi's tenancy had not been finalised. Mr Jones' reply also referred to Mr Amadi's residence at the property as not having been resolved. Thus, as the judge pointed out, Mr Amadi at that time was not asserting that he had an existing agreement for a lease. In February 1998 Hackney applied for leave to file particulars of claim because it had commenced proceedings by originating summons and so had not had to file pleadings, and it suggested that the issues needed to be clarified before trial. Leave was given on 24th March 1998 and the defendants were given leave to serve an amended defence within 28 days of the service of the particulars of claim and also to serve witness statements. On 12th September 2000, no amended defence having been filed or witness statements served, the county court of its own motion debarred Mr Amadi from defending the claim. Mr Amadi applied for the setting aside of that order, blaming solicitors, who, he said, had been instructed to act for him. His Honour Judge Knight QC, on 24th October 2000, set aside that part of the order of 12th September which debarred Mr Amadi from defending, and Mr Amadi was given permission to file an amended defence, which he did. That did not contain any counterclaim. In it Mr Amadi averred that in November 1995 he wrote twice to Hackney accepting the offer in the letter of 9th November 1995.
9.	The trial was fixed for 8th December, but on that day His Honour Judge Karsten QC adjourned the hearing until 20th December and gave directions relating to the conduct of the trial. They included that the grounds of defence be limited to two issues. One was whether the defendants were in lawful occupation of the property by virtue of a licence granted to Mr Amadi by Councillor Lawless on 14th April 1989; the second was whether the defendants were in lawful occupation of the property by virtue of an agreement to create a tenancy made in November 1995 either orally between Mr Amadi and Mr Jones or in writing between Hackney and Mr Amadi. At the adjourned hearing, which came before His Honour Judge Reid QC, the judge refused an application made by the representative for the defendants that they be allowed to file a counterclaim which had not yet been drafted. There was placed before the judge only the application notice that there should be a counterclaim for damages for unlawful eviction, discrimination, breach of the defendants' human rights and misfeasance in public office: there were no pleadings to go with that suggested amendment. The judge therefore refused that application. He answered both the issues ordered by Judge Karsten to be tried against the defendants. 
10.	The defendants now wish to appeal against the judge's refusal to allow the counterclaim and against the judge's conclusion on each of the two issues. I shall consider their grounds in turn. 
11.	It is said, first, that the judge had discretion to allow the counterclaim and should have exercised his discretion in accordance with the overriding objective in Civil Procedure Rules Part 1. There can be no doubt but that the judge did have a discretion, but to my mind it is quite hopeless to seek to argue that the judge did not exercise his discretion in accordance with the overriding objective. That requires the court to deal with a case so as to ensure that it is dealt with expeditiously as well as fairly. The defendants in September 2000 had been in flagrant breach of the order of the court requiring the amended defence to have been put in 28 days from the service of the particulars of claim. The court had in mercy allowed the defendants to put in an amended defence. This did not include a counterclaim. The trial should have started on 8th December. No suggestion of a counterclaim was made when Judge Karsten had limited the defendants to two issues. When the application for a counterclaim was made on the day that the hearing commenced, the pleading had not even been drafted. Courts do not allow amendments without the precise amendment being put before the court. It was far too late an application, which could not properly have been entertained without a pleading and which, if allowed, might well have occasioned the trial going off yet again. To allow the counterclaim would have run counter to what Judge Karsten had ordered. In these circumstances it is in my judgment quite unarguable to suggest that the judge erred in refusing to allow the counterclaim.
12.	Next it is said that the judge was wrong to hold that the defendants were not in lawful occupation by virtue of a licence granted by Councillor Lawless on 14th April 1989 by the note given to Mr Amadi. The first difficulty facing the defendants is that the note does not on its face purport to be, nor does it read like, the grant of a licence. It is merely a record of advice. But even if it purported to be the grant of a licence, it would not in law have that effect unless it was established that the councillor had the authority of the Council to grant a licence or the Council had held him out as having authority to grant the licence. That was never established. The fact that the writer of the note was an elected councillor and the leader of the dominant group certainly does not give him that authority. The defendants point out that the Council was given liberty to put in evidence on the point, but did not do so. There was no obligation on the Council to do so; and the fact that it chose not to do so does not mean that the Council had given the councillor any such authority. The defendants also point to the suggestion of the subcommittee of the Council in 1989 that Mr Amadi might have established a tenancy by moral obligation. But the judge was not concerned with moral obligations but with the question whether a legal right had been established. Even if there had been a licence, it is apparent from Mr Amadi's own letter of 21st February 1991 that he was told that he was to be evicted and that is inconsistent with any licence continuing.
13.	Then it is said that the judge was wrong to find that the offer in the letter of 9th November 1995 was one incapable of acceptance and was not accepted. To my mind the judge was plainly right on this. Just as there can be no concluded contract unless all the terms and conditions are agreed, so there can be no offer capable of acceptance so as to become a contract, when the offer expressly states that it is on terms and conditions to be agreed. It is no more than an invitation to treat. The doubts expressed internally by the defendants as to the outcome of the Order 113 proceedings do not show that there was a contract to grant a tenancy. 
14.	The defendants face the further difficulty that, even if there had been an offer capable of acceptance, it has to be shown that it was accepted; and the judge has made a finding of fact to the contrary. Before me today Mr Amadi has again said that he wrote letters of acceptance. He says that there are other documents which would have evidenced the fact that he had agreed all the terms of the tenancy with Hackney. The difficulty is that he is unable to point to any documents other than two letters to which I have referred and to which reference was made for the first time in the amended defence in September 2000. The judge was entitled to reach the conclusion that the letters had never been received. The Council had an obligation to disclose all the relevant documents in its possession, and they included no documents which showed either that there had been an acceptance or that further terms had been agreed as between Hackney and Mr Amadi so as to constitute a completed contract on which he could sue. In my judgment it is impossible to suggest that the judge erred on the material that was put before him. The fact that Mr Amadi claims that there were other documents cannot avail him when he is unable to put those documents or copies of them before the court. 
15.	There are other unparticularised complaints in the Appellant's Notice that the judge paid little or no attention to the submissions for the defendants and took irrelevant matters into account. I see no basis whatever for these complaints. On the contrary, I would pay tribute to the full and careful judgment of the judge which seems to me to be quite unassailable. 
16.	There is no real prospect of success on this proposed appeal, nor is there any other compelling reason why this appeal should be allowed to proceed. I naturally feel sorry for Mr Amadi, faced as he is with the prospect of losing the home of himself, his partner and his young children. However, he has no redress in law on the matters which have been put before me, and I must therefore refuse this application. 
Order: Application dismissed.