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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 >> Molyneux v Liverpool City Council [2002] EWCA Civ 938 (20 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/938.html Cite as: [2002] EWCA Civ 938

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE MARSHALL EVANS QC)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 20 June 2002

1. LORD JUSTICE JUDGE: This is an application by Mr Alan Molyneux for permission to appeal against the decision of His Honour Judge Marshall Evans QC, dated 11 January 2002, when Mr Molyneux' claim for damages against Liverpool City Council was dismissed. In view of what Mr Molyneux has submitted with great strength of feeling about his involvement in this litigation, it is important to identify what Judge Marshall Evans was being asked to consider. He was being asked to consider whether or not Liverpool City Council should be responsible in law for the losses which occurred when property belonging to Mr Molyneux was stolen.
2. The circumstances can be briefly summarised. Mr Molyneux was a victim of somebody's dishonesty. He lost property. Different estimates of value were given: he told me £5,300 worth, the claim alleged £4,799 worth, but in the end, no doubt after discussion between counsel in which both sides did some giving and taking, as I understand Mr Molyneux it was agreed that the value of his lost property was agreed at £3,562.
3. The property was stolen from his flat at 2A Miranda Place, Kirkdale, Liverpool. Mr Molyneux was the tenant of those premises. He was entitled to the ordinary protection of a tenant. The flat formed part of a large group of flats in 3-storey blocks owned by Liverpool City Council. 2A Miranda Place was on the first floor. On 6 May 1999 the block in which 2A Miranda Place was situated was set on fire, or, if not the subject of arson, did in one way or another become alight. Mr Molyneux believes that that fire was simply part of the constant vandalism to which he and others with flats in the area were exposed.
4. Mr Molyneux' flat was damaged by smoke. There was also water damage from the efforts of the Fire Brigade to extinguish it. According to Mr Molyneux, another consequence of the fire was that the roof was made dangerous and precarious. There was enough damage for the Council to be advised that gas and electricity should remain cut off. In any event, and of some relative importance, the flat was due for demolition. That represents one of Mr Molyneux' concerns. The City Council was not looking after these properties properly, or the interests of the tenants because they saw them as ripe for, and likely to be, demolished.
5. The Council provided alternative accommodation to replace the accommodation at Miranda Place. Before Mr Molyneux left for the new address, he was permitted to leave some of his property at 2A Miranda Place. It was that property which was subsequently stolen. Mr Molyneux, according to the judgment as the judge understood it, told the judge that he thought that his old flat would be a reasonably safe place in which to leave the property, which was boarded up. Between the time he moved to his new address in early May and 7 July, Mr Molyneux passed the premises on a daily basis. He could see nothing then which would cause him to have any reason for concern for his property. Unfortunately, on that date it was discovered that the premises had been broken into and his property stolen. As he pointed out, this was not a series of small items of value, but there were some large items, not least a cupboard 6 feet by 6 feet and a heavy duty exercise bicycle. In other words, it could not be a sneak thief popping his hand through a door and taking a small radio or some item of similar size.
6. The other feature of the case was that the defects did not fully appear. The way in which the judge described the burglary was to analyse the way the Council had taken precautions to keep 2A Miranda Place reasonably safe. He then said how it was not beyond the ingenuity of the typical Liverpool yobbo or thief to kick or chisel out a few bricks, or find a way through and then descend through the roof space, through the loft into the staircase. Mr Molyneux says that is unreal because nobody would have taken the risk of getting onto, or anywhere near, the roof or the roof space. The judge was also puzzled as to why, what he described as energetic and enterprising thieves or thief, took away these large items of heavy property.
7. The essence of the case presented by Mr Molyneux was that those responsible for this theft were, or the inference was inescapable that they must have been, employees of the Council. If so, the Council was liable. I shall assume that the Council would be liable on the basis that, if it was their employees, they were acting in the course of their employment.
8. The difficulty with the submission, notwithstanding Mr Molyneux saying that it is perfectly obvious and no ordinary man in the street would accept the contrary, was that the judge was not prepared and expressly did not make that finding. In effect, therefore, that element of the case, after an examination of the evidence, was rejected. The judge then went on to consider the case on the basis that the City Council was liable for the value of the lost goods as bailee. He found that the council owed a duty, as does any bailee, to take reasonable care of property. He concluded, however, and again found, that the Council had established that it had not been negligent in the way in which it had managed the premises at the time when the property was still within it, and before the theft.
9. The difficulty Mr Molyneux faces is clear. The judge considered the evidence. He heard what the witnesses had to say. He was not prepared to find that it was proved on the balance of probabilities that there must have been a theft by the employees of the Council. He was prepared to conclude, again on the balance of probabilities, that the Council had taken reasonable care of Mr Molyneux' property while he was away from his former flat. Those are findings of fact which the judge was entitled to reach and which on ordinary principles this court would not set aside.
10. The reality of this application, however, has not really been dealt with, although I have touched on it. Mr Molyneux feels very deeply that this fire at 2A Miranda Place was merely one more in a series of efforts by vandals which could have put the lives of tenants in these flats at risk. Listening to him, his case is that he and the other tenants in these flats were left wholly unprotected against vandalism and without any proper provision for security. The absence of such elementary precautions as the City Council could have taken was (I use the words to summarise, which did not) absolutely lamentable. He has done nothing wrong. He has lost valuable property and he really does not see why the City Council should get away with such behaviour.
11. I record those matters because Mr Molyneux was plainly upset about the way in which he believes he was treated by the City Council. But those were not issues before Judge Marshall Evans. They certainly formed no part of the pleaded case. They were not issues which the judge was asked to consider and decide in his judgment.
12. In those circumstances, having recorded Mr Molyneux' concerns as he has explained them to me, I do not think there is anything which would justify an appeal to the Court of Appeal, the issues never having been canvassed either in the pleadings or at the hearing before the judge. I am not unsympathetic with Mr Molyneux' position, but I do not think there is any basis on which I could grant him permission to appeal.
13. Accordingly, the application has to be refused.
Order: Application for permission to appeal refused.