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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 >> Sumners Ltd v London Borough Of Hammersmith & Fulham [2002] EWCA Civ 703 (2 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/703.html Cite as: [2002] EWCA Civ 703

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE BARRY GREEN)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 2 May 2002

1. LORD JUSTICE KEENE:This is an application for permission to appeal against two decisions in the county court, one by His Honour Judge Goldstein QC on 7 March 2001 and the other by His Honour Judge Barry Green QC on 15 January 2002. The applicant was the claimant in the proceedings which took place in the Central London County Court, in which proceedings it claimed damages for breach of a covenant to repair.
2. The claimant was the tenant of shop premises consisting of a ground floor and basement at No 361 New Kings Road. The defendant was the landlord. The shop was run as a cafe, delicatessen and take-away.
3. The claimant alleged three breaches of covenant. First, a broken mains water pipe into the premises, which caused damage through leaking water, and also other water damage from disrepair under the entrance to the upstairs flat. Secondly, collapsing ceilings in the shop because of water from the shop above, said to be due to the defendant's failure to maintain. Thirdly, the capping of the chimney flue from the claimant's baking oven. That capping consisted of a concrete slab.
4. The issue of liability came before His Honour Judge Goldstein in March 2001. An agreed note of his judgment shows that he found that the obligation of the landlord to repair arose only upon notice. The landlord admitted that there had been a failure to repair the water main but said that notice of disrepair had only been given on 19 January 1998. The judge was not satisfied that notice had been given before January 1998 of the leaking pipe and he rejected the claimant's argument that the landlord had notice of the leak as early as 1995. He found the landlord liable for the damage after January 1998.
5. On the issue of the collapsed ceilings, the judge concluded that that damage was due to the actions of the upstairs neighbours and not to the breach of the landlord's covenant. Finally, on the flue, the judge said he was left unsure as to who had capped it. He held that the claimant had failed to prove its case.
6. Damages were left to be assessed on a date to be fixed. Initially the judge reserved the matter to himself but he subsequently released it in the summer of 2001. It came before His Honour Judge Barry Green who, after a 5-day hearing, gave judgment on quantum on 15 January 2002. Having heard both factual and expert evidence on quantum, that judge awarded the claimant the sum of £54,345 plus interest, out of a sum originally claimed by the claimant company of £123,870. That was done on the basis of liability as from 1 January 1998 to the end of 2000 when the basement came into use. He awarded the claimant only half its costs of the trial on quantum, citing the exaggerated nature of the claim and waste of court time by the claimant. In addition, after refusing a request to adjourn to obtain information from counsel representing the claimant at the liability trial, the judge ordered that the claimant pay all the costs arising out of the liability hearing, on the basis that the claimant had failed on all the issues in dispute. It was also declared that the claimant had waived any right to require Judge Goldstein to provide a further reasoned judgment by failing to do so by 8 January 2002.
7. An appellant's notice was filed in respect of that decision by Judge Barry Green on 29 January 2002. Subsequently, on 11 April 2002, an appellant's notice was filed in respect of Judge Goldstein's decision. However, it seems from the agreed note that Judge Goldstein had said that time for appealing against his decision would only run from the full reasoned judgment, which he anticipated giving on liability and damage. No fuller judgment has since been given by him. In those circumstances, I do not regard any extension of time as being necessary.
8. I turn therefore to look at the merits of the proposed appeal. The claimant seeks to challenge the liability decision on a number of grounds. Some of those matters are raised by way of the grounds of appeal and the written skeleton which I have read. Others have been emphasised orally before me by Mr Jolly, whom I have allowed to speak on behalf of the claimant company.
9. In the written material it is said that the judge required proof beyond reasonable doubt rather than on the balance of probabilities. Nothing in the agreed note of judgment supports that submission. Certainly the judge required the claimant to prove his case, but that was perfectly proper. The onus of proof was on the claimant. There is no reliable evidence before me that the judge applied the wrong standard of proof, which is the complaint being made. It is then said that Judge Goldstein was wrong to have found that the claimant was required to give notice of the disrepair before the repairing obligation of the defendant arose, and/or that the defendant did not in fact have notice.
10. I refer to the first of those matters. That finding by Judge Goldstein accords with basic principles of landlord and tenant law. A landlord's covenant to repair is to be construed as a covenant to repair on notice. The obvious reason for that principle is that, until the landlord knows of the disrepair, he cannot be expected to do anything about it. I cannot see, therefore, that the judge went wrong on this aspect of the case.
11. It is said that Judge Goldstein did not deal with all the issues. An example given by Mr Jolly is that he did not deal with whether the council had constructive notice. He complains that the judge only dealt with issues of fact and not with the issues of law. It will be clear from matters to which I have already referred that the judge did deal with issues of law. For example, he dealt with the need for notice before a repairing obligation on the part of the landlord can be breached. Moreover, the judgment, as reflected in the agreed note, does deal with when the council as landlord knew of the defects. It does therefore seem to deal with issue of notice, whether that notice was actual or constructive.
12. It is argued that an employee of the landlord, Mr Winders, admitted under cross-examination that the council had constructive knowledge of the leaking water main in the middle of 1995. I have read the whole of the transcript of the cross-examination of Mr Winders. I can find no such admission by him. It may be that Mr Jolly, in the way that often happens with those involved in litigation, has read more into the answers given than on a fair reading is properly attributable to them.
13. There are other points raised questioning the judge's conclusions on the evidence before him. It is said that he should have accepted the evidence of certain of the claimant's witnesses. It is for the trial judge to assess the witnesses, to decide whom he believes and to decide what weight should be attached to the various pieces of evidence before him. I can see no basis on which an appeal can be mounted on that ground.
14. Emphasis is placed by Mr Jolly on the absence of any full reasoned judgment of Judge Goldstein beyond that which he gave on 7 March 2001. As I have indicated, it is true that Judge Goldstein seems to have envisaged producing a fuller judgment in due course which would cover both liability and quantum. He has not produced any further judgment on the liability issue. There is a very full judgment, of which the transcript is available, of the decision by His Honour Judge Green on the issues of quantum.
15. The claimant subsequently pursued the case to the quantum hearing in the absence of any fuller judgment on liability. There is no evidence that the claimant's counsel sought a postponement of the quantum hearing until some fuller version of the liability judgment had been obtained. It seems that at no time until after the quantum hearing had taken place and judgment given, did the claimant seek a fuller judgment on liability. The first request on the evidence I have seen was made on 18 January 2002. That no doubt is why it was that Judge Barry Green came to the conclusion that the claimant had waived any right to require a further reasoned judgment on liability from His Honour Judge Goldstein. I cannot see, at this stage, that any appeal could properly be mounted on the basis that no such further reasoned judgment on liability was produced. The note of the judgment which was given on 7 March 2001 indicates that the judge determined the essential issues in the proceedings before him on liability.
16. In the written skeleton the claimant makes a point about the capping of the flue, namely that the landlord knew it had been capped even before the claimant company took over the lease of the premises in February 1995. Therefore it is said that it does not matter who carried out the capping. The landlord failed to remove it, thereby causing problems when a bakery oven was connected to the flue.
17. I can see some force in the point taken in isolation, although it is not easy to see how Judge Goldstein dealt with it because no transcript of his judgment on 7 March 2001 has been available. It does not seem to me there is any prospect of a successful appeal on this ground. The permitted use of the premises under the lease, clause 3.12.1, was as a delicatessen. No other trade or business was permitted without the landlord's written consent. Judge Goldstein pointed out in his judgment that this did not envisage hot and cold take-away food and he was not sure that the landlord was aware of the use to which the oven was put. In those circumstances it is difficult to see how the landlord could have been under an obligation to remove the capping so the bakery oven could be used.
18. It may be that the judge did not fully address this point, but one cannot know because only a brief note of the judgment is available. In the circumstances, I cannot grant permission to appeal when there seems to be no real basis, as far as I can tell, for criticism of the judge on this aspect. In the circumstances I am not prepared to grant permission to appeal against the judgment of His Honour Judge Goldstein.
19. I turn to the judgment of His Honour Judge Barry Green. The main argument raised on the quantum judgment itself is that the judge was prejudiced and unfair. A number of allegations are made in the grounds of appeal. For example, it is said that on the first day of the hearing the judge commented that the case had already taken up precious judicial time. A similar point is made before me by Mr Jolly, on behalf of the company, namely, that the judge was repeatedly emphasising the need for proportionality in civil proceedings.
20. It is a fact that the liability hearing took a total of five days in respect of a claim said to be worth about £124,000. No doubt on 8 January 2002 Judge Barry Green could already foresee that the quantum hearing might also prove to be lengthy because there were witnesses both of fact and expertise. In the event, that hearing also took five days. In those circumstances the judge cannot be criticised for referring to the time already taken. The Civil Procedure Rules' objective of dealing with cases justly includes dealing with them expeditiously, in ways which are proportionate and which involve an appropriate share of the court's resources. The days are long passed when these courts can allow a matter simply to be litigated at quite disparate length.
21. It is also clear from Judge Barry Green's judgment on costs that the length of the hearing before him was increased by the conduct of the claimant's director, Mr Jolly, producing documents during the trial itself and producing them in a "confused and disorderly" manner. A trial judge is required to keep proceedings within proper bounds. It appears to me that this is what the judge was seeking to do. I can see no support in the documentation for the allegation that the judge was prejudiced and unfair. His judgment on quantum is a careful and rational one and there is no proper basis for an appeal on that footing.
22. Finally the claimant seeks to appeal against the orders by Judge Barry Green on the costs of the liability hearing and those of the quantum hearing. On the first of those it is said that the judge was wrong in finding that the trial on liability was taken up with three issues alone and that the defendant had admitted liability to the extent that the claim was successful. Therefore, it is argued that the costs order was wrong. It is also said that Judge Barry Green should have allowed the barrister representing the claimant at the liability trial to represent him at the costs application or should have adjourned the quantum application to allow consultation with that earlier barrister.
23. I remind myself that the court below has a discretion on the issue of costs with which this court will be slow to interfere. The relevant principles were set out in AEI Limited v Phonographic Performance Limited [1999] 1 WLR 1507 at 1523. In that case Lord Woolf, MR, reaffirmed that the approach of the Court of Appeal to costs appeals was as had been stated by Lord Justice Stuart-Smith in Roache v Newsgroup Newspapers Limited [1998] EMLR 161 at 172:

"Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale."

24. When Judge Green gave his ruling on the costs of liability hearing, he only had the agreed note of Judge Goldstein's judgment. There is no indication in that that the claimant won on any significant issue. If the claimant was not content with that agreed note, he should have sought at an early stage to obtain a transcript of the judgment of 7 March 2001 or sought to secure an agreed expanded note signed by counsel on both sides. But on the basis of the material before him, Judge Green's view of the outcome of the issues on liability cannot be seen to have been in error.
25. As for adjourning so that counsel from the liability trial could be consulted, Judge Green dealt with that at the outset of his ruling:

"Mr Hill-Smith [counsel for the claimant] has been instructed in this case as long ago as to be able to conduct the trial in November last year when it came on for the trial of quantum. That trial had to be aborted for want of an available judge. He has had between at least November of last year and now, if not before November, to find out everything necessary to be in a position fully to argue costs.

There is nothing in the submissions of Mr Levy, who appears for the defendant, that ought not reasonably to have been anticipated for the costs argument today."

26. That was an entirely rational basis on which the judge was entitled to refuse the adjournment sought. I would agree with the views which he expressed. I can, therefore, see no real prospect of a successful appeal against the order for costs on the liability hearing.
27. I turn finally to the costs of the quantum hearing. Here the claimant was awarded only half of the costs of the hearing. The judge gave as his reasons the following facts:

(1) The claim was grossly inflated and much time was taken in examining the exaggerated claims.

(2) In the event the claimant lost on a number of specific issues relating to quantum.

(3) Even where the claimant won, more time was taken because of the late and confused production of documents.

28. It is now sought to challenge that decision. It is said by Mr Jolly that some of those documents had been in the original trial bundle on liability even if they were not in the bundle for the quantum hearing. I do not find that at all persuasive. By the time of that hearing on quantum, it was perfectly clear that the judge dealing with the matter was not the same judge who heard the liability issue. In those circumstances the documents ought to have been in the trial bundle for the quantum hearing itself.
29. The factors relied on by the judge in coming to his ruling on costs were factors which he was entitled to take into account. No error of principle has been demonstrated in his reasoning. His conclusions on the individual heads of claim were open to him on the evidence. He was entitled to prefer the evidence from the defendant's experts where he chose to do so. The fact that he himself may not be a trained economist, one of the points raised in the papers, is irrelevant.
30. Looking at this matter of costs, I can see no basis for an appeal against the exercise of his discretion. It follows that these applications for permission to appeal must be in their entirety dismissed. Nonetheless I am grateful to Mr Jolly for the succinct and courteous way in which he has presented his case today.
Order: Permission to appeal refused.