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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 >> Daejan Properties Ltd & Anor v Di Palma & Anor [2002] EWCA Civ 963 (18 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/963.html Cite as: [2002] EWCA Civ 963

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

		Royal Courts of Justice Strand London WC2 Tuesday, 18th June 2002

Tuesday, 18th June 2002

1. LORD JUSTICE BROOKE: I will ask Mr Justice Collins to give the first judgment.
2. MR JUSTICE COLLINS: This is an application by Margarita Di Palma, who was the first defendant in proceedings brought by Daejan Properties Ltd and Kensington Hall Gardens Ltd who over the years were the freehold owners of the premises Flat 8 Kensington Hall Gardens, in which she originally lived pursuant to a lease for 99 years running from 25th December 1970. She in fact bought that lease in April 1973 and at that time the ground rent was £35 a year. In addition there was a requirement to pay service charges, and it is in relation to the service charges that the dispute has arisen. Miss Di Palma has indicated, and indeed has complained over the years, that the landlords Daejan, who were part of the Freshwater Group, had signally failed to comply with their obligations in relation to maintenance of the premises. In particular, there were complaints about the lack of cleaning, the rudeness and incompetence of the caretaker, excessive amounts spent and excessive time taken in relation to necessary repairs, in particular in connection with a boiler, excessive amounts spent in providing an entry system, and so on.
3. These complaints were initially supported by a number of other residents in the flats and from a very early stage Miss Di Palma refused to pay the service charges. What was, as I understand it, to an extent the last straw was a claim for £3,000 in relation to the building work and the repair work which ought in his view to have cost no more than £400. When I use those figures those are the amounts that the individual tenants were asked to pay towards the total cost.
4. Proceedings were brought initially in 1980 by Daejan claiming £798-odd in relation to ground rent and service charges. At that stage there was no claim for forfeiture. £498 of that was admitted and paid, the balance of £300 was outstanding, but for some reason Daejan did not pursue that and the claim was struck out for want of prosecution in September 1984. In 1986 a second claim was made this time for forfeiture in relation to the sum of £4,300-odd of rent and service charge arrears arising between February 1979 and December 1985. That claim was also not pursued and eventually was struck out in September 1993 for want of prosecution. Shortly thereafter on 21st October 1993 the proceedings which eventually ended up before Judge Cowell at the Central London County Court were commenced and they involved a claim for forfeiture in relation to some £15,000-odd of rent and service charge arrears running from February 1979 to June 1993. As Miss Di Palma complained, and indeed that is one of the matters raised in the proceedings, £4,322 of that was the claim which had been made in 1986 and which had been struck out in 1993.
5. Miss Di Palma entered a defence and counterclaim. Putting it very generally, the defence was that the service charges were excessive and the counterclaim related to harassment. Indeed she had moved out of the flat in 1982 although she retained belongings there, and would use it from time to time for her own purposes and would allow others to live there. It is not entirely clear whether they ever paid her rent but that matters not.
6. The claim then proceeded at a very slow pace indeed. There were various interlocutory orders and further and better particulars during 1994. Witness statements were exchanged in early 1995 and the trial was listed for September 1995 with a time estimate of two days. About five days before the trial date Miss Di Palma applied for an adjournment and that adjournment was granted; but Daejan's costs were ordered to be paid by her on an indemnity basis. There were various further amendments to the pleadings and eventually the trial was listed for 21st March 1996. Unfortunately at that stage the judge allocated had insufficient time to try it and so it was refixed for 29th and 30th May 1996.
7. On 19th April Miss Di Palma's solicitors ceased to continue to act for her, and she asked for an adjournment shortly before the trial date because she said her solicitors had withdrawn. The adjournment was granted to the first open date after 28 days to enable her to obtain legal representation. It was ordered that there were to be no further adjournments without the leave of the circuit judge.
8. Again, the claimants' costs were to be paid in any event.
9. On 4th July the trial fixed for the 17th was again adjourned with Daejan's costs in any event and was eventually re-listed, this time for three days in the middle of December 1996.
10. In the meantime on 15th July the freehold was transferred from Daejan, the first claimants, to Kensington Hall Gardens Ltd, who are the second claimants. Kensington Hall Gardens Ltd is a limited company formed by a number of the tenants in the premises effectively buying out their landlords. As I have said there had been, it is clear, some dissatisfaction with Daejan over the years and so the tenants had decided to go along this particular route. Miss Di Palma had been notified that this was proposed but for various reasons into which I do not need to go, she decided in due course that she would take no part in that buy-out and indeed she complains that the second claimants have acted in such a way as to override her rights in certain respects. She has accordingly refused to pay them the amounts by way of service charges and indeed ground rent which has fallen due since 15th July 1996. She says that she has a good reason not to pay.
11. On 10th December 1996 Daejan applied for permission to add the second claimants. What happened was that the second claimants gave a power of attorney to Daejan to enable them to use their name, indeed to use them as second claimants because Kensington Hall Gardens by the time the matter was due to be heard were in fact the freehold owners and so the landlords; thus any claim for forfeiture would have to come through them. The arrangement was that Kensington Hall Gardens were not willing to take over any arrears that might be owing by any of the tenants at the time of the takeover (in particular Miss Di Palma), although it may be that there were some others who were in arrears to a lesser extent; and so it was that it was decided and agreed that without any costs at all to Kensington Hall Gardens they would allow Daejan to use them to enable the forfeiture proceedings to continue.
12. Unfortunately, Miss Di Palma misunderstood the situation and took the view that the result of the arrangement whereby Kensington Hall Gardens were not going to render themselves responsible for any arrears meant that those arrears were no longer owing; and so it was that she applied to strike out the claim. That application was as I say wholly misconceived. Unfortunately it took a very long time to get to court. The trial fixed for December 1996 was adjourned to enable Miss Di Palma to make the strike-out application. It seems that during 1997 the claimants were trying to find out whether that was to be pursued. They got nowhere. In April 1998 there was a further application to strike out, but that did not come before the court until January 1999 when the applications to strike out were dismissed and Daejan were given permission to join Kensington Hall Gardens Ltd. The case was then ordered to be heard on the first open day after 1st May 1999 with a time estimate of three days. An amended particulars of claim was served.
13. On 16th June 1999 the district judge ordered the case be allocated to the multitrack. There were some further pleadings and further directions through 2000 and eventually there was an order in September 2000 that the trial should begin on 25th January 2001, that being a Thursday, and that three days should be allowed for it. Unfortunately on 23rd December 2000 Miss Di Palma's legal aid certificate was discharged and notification was given of that on 2nd January 2001. On 25th January the hearing was due to commence.
14. I have gone into the history in some detail because it was highly material to the decision that was eventually made by Judge Cowell to refuse an adjournment on 25th January. Miss Di Palma turned up at court. Her first complaint was that the bundle had not been served by the claimants' solicitors until 22nd January 2001. A Mr Georgiou was acting on behalf of the claimants' solicitors. Mr Georgiou explained in an affidavit which was before the judge that that was partly because there had been some problems in obtaining the relevant documents. Some had somehow got lost in the Document Exchange, and there had been service on Miss Di Palma at a wrong address initially. But she had them by the 22nd.
15. Unfortunately some coloured photographs showing the state of the premises at various dates upon which she wished to rely had, it seems, gone missing, and the solicitors, through Mr Georgiou, had provided photostat copies of those photographs which, as is the wont of such photostats, were, one is tempted to say, somewhat worse than useless because they really did not show any detail at all. However, when Miss Di Palma appeared at court she had her own coloured copies of the photographs and she was able to provide Judge Cowell with those copies. He asked, she says, whether he could borrow them, and he did so. But she applied for an adjournment, partly it seems because she was saying that she had not received the documents in good time and these photographs had gone missing, but mainly because she was not in a fit state to continue on that day. She had, she says, a medical certificate. Unfortunately that has gone missing and she has not been able to produce it before us. She has suffered for some time from myalgic encephalomyelitis, or ME, as it is commonly known, and this has meant that she from time to time is unable to cope. Indeed she has to retire to bed on occasions and is quite incapable of doing anything active. This is particularly the case when she is under any sort of strain, and it is very obvious that she would be under strain if she was required to go through a trial. She had in fact relied on that in the past to obtain some of the adjournments to which I have referred. The application was also based upon the fact that she had a large number of documents which she wanted to put into the trial bundle. The learned judge invited her to ensure the documents were brought to court but she said that there were so many that she would not physically be able to bring them to court.
16. As far as the illness was concerned the judge dealt with that in this way. He said that he did not doubt that she was suffering from the illness but there was nothing to indicate that she would recover at any particular time and that although illness was generally a very proper and reasonable ground for adjourning a trial, it seemed to him that the sooner the trial was over the better for her health, and that there would be no time when she would be better able to conduct the trial if she had to conduct it herself. Accordingly, he refused the adjournment on the basis of illness and indeed had regard to the fact that there had been a very long history to these proceedings and the previous adjournments on the same basis.
17. But then there was an unusual twist in that the court was told that morning by the firm of solicitors who had acted for Miss Di Palma, presumably over the telephone, that legal aid had been reinstated. The judge's first reaction was to consider adjourning the trial to March but counsel for the claimants objected because, as he pointed out, last minute removal of legal aid had led to one previous adjournment and this seemed to be a repeat of what had happened before. What was then suggested was that the case should be adjourned to the Friday and the solicitors who had been instructed by Miss Di Palma under the legal aid order should be able in the time available to instruct counsel, if that was desired, and be able to represent her on the Friday. The case would then go over to the Monday and possibly to further days so that they would have also the weekend. No doubt the judge would have taken steps to ensure that there would be no prejudice as a result of the somewhat last minute instruction of counsel.
18. Miss Di Palma was then asked whether she wished to be represented on the following day. The judge believed that if she did accede to this suggestion many of the problems would disappear. He observed that she seemed not particularly able to concentrate upon the point but she effectively had that choice, either to continue representing herself or to go to the following day with solicitors and counsel.
19. Having heard Miss Di Palma before us this morning, for my part I have some sympathy with the judge's observation. The judge then decided to adjourn for five minutes to enable Miss Di Palma to consider her position and to make her choice. He records that he was informed (although Miss Di Palma says that this is not entirely accurate) that she was offered by the court clerk the use of a telephone to communicate with her solicitor but she declined to do so. The only observation she made was that she was going to seek medical advice. She did not wish to instruct solicitors and so the judge decided that he would continue the hear the matter. Miss Di Palma chose to leave court. Accordingly, he continued the hearing and, as he says, it was not for him to take up the cudgels on her behalf but he did what he supposed he could call his meagre best to test the case for the claimants.
20. There was no doubt that the amounts claimed by way of service charges had not been paid. Equally, the proceedings were commenced in 1993 and so the provisions of section 81 of the Housing Act 1996 were not directly under consideration because on the service of the proceedings the re-entry took place.
21. The learned judge then went through the various heads of claim and decided that they were all made out. He heard the current caretaker, against whom Miss Di Palma had made a number of quite serious allegation, give evidence, and he decided, having heard him, that those allegations were unfounded. He properly required the claimants to prove the amounts of the claim. He also considered the defence and in particular the counterclaim and he dismissed that. He considered the proper amount that should be awarded by way of interest and in the end he made the order which was that the claimants should have judgment for arrears of service charges of £19,385.60 and interest of £19,749.25. He also ordered costs on an indemnity basis, having regard to the manner in which the proceedings had been conducted by Miss Di Palma. He further ordered possession to be given by 4.00pm on 9th March 2001 but ordered relief if the money sums were paid by that date together with costs. He also directed (Miss Di Palma's complains about the form of the order because there was a wrong date upon it) that the claim by the second claimant for sums falling due since 15th July 1996 should be tried. That matter came before His Honour Judge Cooke on 19th June 2001. Unfortunately we do not have a copy of Judge Cooke's judgment. Suffice it to say that, having heard the matter, he ordered that the outstanding sums should be paid by Miss Di Palma. The total sum of the money judgment, £19,172.42, which, together with interest of some £2,092, totalled £21,264.42.
22. An application for leave to appeal was made to Judge Cooke, which he refused, but he did note that if the application to appeal against Judge Cowell's order was successful then the basis upon which he had decided the claim, namely that they were mesne profits, would fall away and so the appeal against his order would be really parasitic upon any appeal against Judge Cowell's order.
23. Unfortunately there has been some confusion and difficulty about appealing Judge Cowell's order. What happened was that an application was made by Miss Di Palma for permission to appeal in time, but the court was notified that the case had not been allocated to any track. That was wrong because it had, as I have said, been allocated to the multitrack so that any appeal would come to the Court of Appeal. It seems that advisers that Miss Di Palma was relying on (not qualified persons) had informed her that the right route was to appeal to a High Court judge. That is unfortunately what happened. The matter came before Laddie J on 12th July 2001 and he dismissed the application for permission to appeal Judge Cowell's judgment. There was a subsequent application to appeal against Judge Cooke's judgment which came before Patten J on 12th September. He then struck out the application for permission to appeal Judge Cowell's order which had been renewed and he stood over the application against Judge Cooke's order.
24. It was then appreciated that this had been a multitrack case and so there was an application on 15th November for permission to appeal to the Court of Appeal. That came on the papers before Hale LJ on 18th December and she ordered an oral hearing on notice to the claimants and a stay of execution pending the hearing. I should say that there had been an application in September before a recorder by Miss Di Palma to stay the warrant of execution. That was refused and the warrant was issued and the bailiffs enforced the possession on 21st September. But some days subsequent to that Miss Di Palma had gained possession by changing the locks, and a warrant for restitution has been issued on 5th November. That is the history.
25. The essence of this application depends upon whether Judge Cowell's decision to refuse the adjournment was one which can properly be impugned. It was a decision made in the exercise of his discretion and it is quite plain that he properly considered all the matters which he ought to have considered. He offered Miss Di Palma the alternative of consulting her solicitors and the case going over to the following day.
26. Judge Cowell was quite right to consider the very lengthy history to this matter and to take the view that it ought to be tried then, if at all possible, and subject, of course, to ensuring as best he could that Miss Di Palma was treated fairly. She decided for reasons which seemed good to her that she would not take up his offer, and she decided - and of course one must sympathise with her medical condition - but nonetheless she decided that she would leave court and so it was that the matter was heard.
27. The reality is that looking at the unfortunate history of this matter there is no doubt but that Miss Di Palma would have had a singularly uphill task in persuading a judge that there was any merit in the various claims that she was making. As I say there was some evidence that in the early days, the landlords, Daejan, had not acted in the best manner possible in certain respects. Nonetheless, she was being asked to pay sums which other tenants in the property had also had to pay. It is perhaps not insignificant to note that this battle, so far as she is concerned, has been going on for a very long time and that she is continuing it in relation to Kensington Hall Gardens Ltd, and she had decided, for reasons which seemed good to her, that she would not pay any sums by way of the service charges.
28. In my view Judge Cowell cannot be criticised for having acted as he did and having refused the adjournment. That being so he considered, and properly considered, whether any of the points made on behalf of Miss Di Palma in the defence and in the documents that were before him had any validity, and he decided that they did not.
29. I can see no fault in the judgment that he reached and in those circumstances as it seems to me this application will have to be refused. That being so there is no conceivable basis for appealing against the order made by Judge Cooke. Accordingly both applications for permission to appeal should in any judgment be refused.
30. LORD JUSTICE BROOKE: I agree.
(Applications refused; no order for costs).