Case No: B2/2009/1649(A)&(Z)
Neutral Citation Number: [2010] EWCA Civ 105
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON
CIVIL JUSTICE CENTRE
(MR RECORDER FRANCIS QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 4th February 2010

Before:

LORD JUSTICE JACOB
 
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Between:

	LONDON BOROUGH OF BARNET	Appellant	
	- and -		
	KANI	Respondent	

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(DAR Transcript of 
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The Appellant appeared in person.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Jacob:

1.	This is an application for permission to appeal part of the judgment of Mr Recorder Francis QC given in the Central London County Court on 10 July 2009.  It is by Mr Kani, the defendant, to an application by the London Borough of Barnet for an ASBO and a counterclaimant.  

2.	The council had seized a number of cars on the basis that Mr Kani was conducting a trade in second hand motor cars unlawfully; the details do not matter.  Three of the cars were seized on the basis that the council was claiming that they did not have adequate proof of ownership and the others on a different basis.  Sir Richard Buxton on the papers, gave Mr Kani a limited permission to appeal.  So the case is already coming before this court unless it can be settled.  
3.	Mr Kani accompanied his application for permission to appeal for permission to adduce further evidence and for certain other measures. Sir Richard Buxton refused these, briefly saying that they were misconceived.  Mr Kani sought to raise the same points before me.  But once it was explained to him that you could not have fresh evidence on an appeal, which could have been before the court below, he did not press the matter too hard.  I formally refuse that application.

4.	The first point Mr Kani wishes to raise for permission to appeal relates to the dates when the judge held that the duty to return the vehicle pursuant to Section 38(b) of the London Local Authorities Act 1990 as amended arose.  This point amounted only to a couple of days.  The judge in paragraph 12.9 said that the duty to return arose or about 5 September.  Mr Kani suggests that it should have been 3 September because the start date was 21 August.  I am not that impressed by this.  It appears to me to be too trivial to count one way or the other.  I do not give permission in respect of that point.  

5.	However, I do give permission in respect of the next point.  The judge considered that the letter of 3 September 2008, which he refers to at 12.6, amounted in effect to a return of the cars.  The letter said this: 

“In order to release the vehicles, please 
confirm your ownership of these vehicles  
Provide documentary evidence of ownership…  Confirm that you will collect these vehicles from our car pound, located in Tottenham.”  

6.	The difficulty with that letter is that the return offered is not unqualified.  It required Mr Kani to provide documentary evidence of ownership as what was clearly a pre-condition.    The problem with that is, as Mr Kani pointed out, it was the Council itself which had the documentary evidence of ownership, having seized the relevant logbooks.  The judge appears to have overlooked that fact.  It is not merely a fact as appears from the papers but it was also a matter actually pleaded in respect of ten vehicles by the Council itself.   It appears to me to be reasonably arguable that this letter of 3 September was insufficient to amount to a return of the vehicles. 

7.	The next point upon which I give permission to appeal because it is reasonably arguable relates to the fact that according to the documents shown to me by Mr Kani, which were before the judge, the DVLA had provided to Barnet all the relevant information about ownership of the cars on 11 August.  It is arguable that the duty to return arose on or before 23 August.  

8.	Mr Kani also seeks permission to appeal in relation to the judge’s approach to valuation.  He says he put forward before the judge information as to the trade valuations of the motorcars at different times taken from a well known trade publication.  The judge ignored that and instead went by some valuations provided by the police in some criminal proceedings.  Mr Kani says he has no idea where those valuations came from, and they were unsubstantiated.  So it was impermissible to take those as against the figures in the trade publications.  That seems to me to be fairly arguable. 

9.	The final point upon which he seeks permission is the judge’s finding that in any event he had not proved that he would have sold any of the cars in the periods of illegal detention.  He says that is not the right test.  The right test is not whether he can prove that he would have sold any particular car but a different test, namely that the value of the lost opportunity of trying to sell the cars, the loss of a chance.  Again, it seems to me that is an arguable point.  

10.	Accordingly I would add these points to the points on which Mr Kani has already got permission from Sir Richard Buxton.

Order: Permission to adduce further evidence refused; renewal of part refusal allowed on some grounds