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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 >> Bowen-Griffith v London Borough Of Barnet [2002] EWCA Civ 626 (24 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/626.html Cite as: [2002] EWCA Civ 626

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
(His Honour Judge John Adams)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday, 24th April 2002

Wednesday, 24th April 2002

1. LORD JUSTICE CHADWICK: This is an application for permission to appeal from an order made on 18th September 2001 by His Honour Judge John Adams in the Barnet County Court in proceedings between the applicant, Miss Jo-Anne Bowen-Griffith, and her landlord, London Borough of Barnet, and the landlord's contractors, Ants Removal Firm.
2. The background to the proceedings may be stated shortly. The applicant was the tenant of a flat at 147 Addison Way, London NW11. In January 1993 there was a fire, which commenced on the communal landing but spread into the flat. The applicant, who was ill in bed at the time, was rescued by fire-fighters through the bedroom window. The flat was extensively damaged and rendered uninhabitable. The applicant was rehoused temporarily by the Council.
3. The applicant's possessions - furniture, equipment, clothing and other chattels - were removed from the flat by Ants Removal Firm on the instructions of the Council. That was done in two stages. Items were packed and removed in June 1993 and were taken to premises owned by the Council at Grahame Park for storage. In October 1993 some of those items were damaged by a water leak at the Grahame Park premises. The items were removed from Graham Park and taken by Ants to storage premises owned by Transeuro Storage Ltd. At or about the same time, the remaining items at 147 Addison Way were packed by Ants and moved directly to the Transeuro premises.
4. The applicant returned to the flat at 147 Addison Way, but it was not until the summer of 1996 that her possessions were moved back from storage into that flat. The applicant complained that some of her possessions had been lost, damaged or destroyed in the process of removal and storage which I have described. There was obvious potential for loss or damage; in that, first, there had been a fire at the flat, with the consequential water damage which followed from the extinguishment of that fire by the fire service; second, some items were removed to Grahame Park; third, there was a water leak at Grahame Park; fourth, those items were removed from Grahame Park to Transeuro; and fifth, other items were removed from the flat to Transeuro. It seems that the applicant had no contents insurance.
5. The applicant commenced proceedings, under reference BT605440, in the Barnet County Court by a summons issued in February 1997. She claimed damages against the Council both for damage and loss of her possessions and in respect of breach of a repairing covenant; also damages for failing to rehouse her appropriately. And she claimed damages against Ants for failing to exercise due care in the removal and storage of her property. In anticipation, perhaps, that her damages claim would be successful and that the damages which she could set-off would exceed the amount of the rent, she withheld rent for her flat at 147 Addison Way from February 1996.
6. In those circumstances arrears of rent built up and the Council commenced proceedings for possession. The two sets of proceedings came before His Honour Judge Adams for trial. The trial extended over some five days and witnesses from the Council, from Ants and Transeuro were called to give evidence. Miss Bowen-Griffith herself gave evidence. The judge awarded her £500 by way of damages in respect of water damage at Grahame Park; and he awarded her a further £800 damages in respect of the defects in repair at the flat. Those sums, together, came to £1,300. He set that sum off against the rent and the claim for storage charges. He dismissed the claim against Ants.
7. In the circumstances, therefore, that there was a substantial amount of arrears of rent, the judge had to consider whether to make an order for possession. The arrears as at the date of judgment had increased to £5,500, or thereabouts. Miss Bowen-Griffith offered to pay those arrears at the rate of £2.65 a week. As the judge observed, it would take 30 years to pay off the arrears at that rate. He thought that was an unreasonable proposal and that this was a case for an immediate possession order. The order which he made on 18th September was that the applicant should give possession by 31st October and that she should pay £5,572.50 by that date in respect of unpaid rent, use and occupation of the premises.
8. Miss Bowen-Griffith has remained in possession of the premises under a stay granted by this court pending this application.
9. The question for me on this application is whether the applicant has shown that there is a real prospect of success on an appeal against the judge's order. The foundation of the order is the judge's dismissal of her substantial damages claim. That dismissal led to a situation in which there were arrears of rent; and there can be no real complaint against the judge's decision that, in the face of an offer to pay no more than £2.65 per week off the arrears the Council should have the order for possession which it sought.
10. The primary question, therefore, on any appeal would be whether or not the judge was wrong to reach the conclusions which he did on the damages claim. That is recognised in the grounds of appeal set out in section 7 of the Appellant's Notice. It is said that the judge erred in the assessment which he made of the evidence; and, in particular, placed excessive weight on his assessment of the applicant's evidence, with the result that that detracted from his ability to consider the evidence objectively and impartially.
11. The applicant's difficulty is that the judge plainly formed a very poor view of her credibility. As he put it at page 5 H of his judgment, the credibility of the witnesses was the lynchpin of the case. He went on to say that he found Miss Bowen-Griffith an unreliable witness. He based that conclusion on the way she gave her evidence and how she reacted to cross-examination, as well as particular aspects which he thought threw doubt on her credibility. In the result, at page 8 B, he reached the conclusion that her evidence was thoroughly unreliable and could not be accepted on any disputed issues. He made that finding for three reasons: first, because she had made allegations of dishonesty against Council employees which he found to be fanciful and unsubstantiated; second, because she had made an allegation of forgery against Ants on their inventory documents, for which there was no evidence at all; and third, because she had accused the Council officers and Ants' employees of stealing some of her jewellery, an allegation which had never been pleaded and was disavowed by her counsel.
12. Clearly the judge thought that the applicant was a witness who would say whatever she thought was helpful to her case without any proper regard to the need for a foundation of fact from which to make accusations of dishonesty. On the other hand, he found credible the evidence of the Council officers, the Ants' employees and other witnesses including the fire service. It was on that basis that the judge had to reach conclusions of fact as to whether or not property had been lost, or destroyed, or damaged.
13. The applicant says that the judge failed to take into account a letter of 17th June 1996, written to her but sent to Ants, in which the Council indicated that, if the property was not removed from storage, there would be instructions for it to be disposed of. There is nothing in that letter which suggests that the property was destroyed or disposed of. But, more pertinently, that letter was in the possession of her advisers and they chose not to put it either to the Council witnesses or to the Ants' witnesses.
14. Then she says that the judge was wrong to hold that the work to the roof at her flat had been done. She relies on a letter from the Council indicating that instructions to repair the roof had been withdrawn. The judge's finding on the matter was that there had been a complaint about a leaking roof at the flat in October 1995, but that the order for that work to be carried out was cancelled because the applicant had complained about the position in which the scaffolding had been sited. He found that the roof had been repaired on 6th February 1996.
15. Those are wholly factual matters. They turn on the judge's assessment of the witnesses over a five-day hearing. There is, in my view, no real prospect that the Court of Appeal would interfere with those findings of fact.
16. The applicant tells me that she is willing to pay off the whole of the arrears of rent and wants a stay of the possession order - or, perhaps more accurately, of the warrant of possession - to enable her to do that. It seems that she has not made any application to the county court for a suspension of the possession order supported by any realistic offer to pay off the arrears. If she wishes to make that application then she should have an opportunity to do so. It is not an application that is before me. But if this applicant is really in a position to pay off her arrears of rent, then the county court should be approached on that basis.
17. Accordingly, the order which I shall make is to dismiss the application for permission to appeal, dismiss the application for a stay pending appeal, but to grant a stay of the possession order, or of the warrant of possession issued under it, for a period of 28 days to enable Miss Bowen-Griffiths to make an application in the county court for a stay upon realistic terms that she pay off the arrears of rent. I give no indication as to the likelihood of success or failure on that application. I do no more than give effect to my view that she should have the opportunity to make it.
Order: As above.