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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 >> Ahmad v Barclays Bank Plc [2001] EWCA Civ 1590 (15 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1590.html Cite as: [2001] EWCA Civ 1590

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HER HONOUR JUDGE HALLON)

		Royal Courts of Justice Strand London WC2 Monday, 15th October 2001

Monday, 15th October 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Musabbir Ahmad, the claimant in the proceedings (who appears in person), for permission to appeal against an order made by Her Honour Judge Hallon on 6 September 2000 in the Bromley County Court whereby she dismissed the applicant's appeal against an order made by District Judge Reid on 5 April 2000, also in the Bromley County Court, dismissing the claim. The application notice was filed on 29 March 2001, and it is accordingly some six months out of time. The applicant accordingly requests an extension of time.
2. The factual background to the application is very briefly as follows.
3. Prior to about 1984 the applicant had worked in the restaurant business for some 30 years, and had established a number of restaurants during that period of time. In 1984 he purchased the freehold premises known as 6 London Road, Westerham, in Kent, for some £100,000. He opened a restaurant in the property, which traded as the Koh-I-Noor Restaurant. The following year the applicant purchased the adjoining property known as 6A London Road for the sum of £35,000 or thereabouts, and converted it so as to provide ancillary facilities for the restaurant next door. On 4 January 1990 the applicant obtained planning permission to use the first floor restaurant at 6 London Road as self-contained office accommodation. He also had plans to convert the loft space above the first floor restaurant into a three-bedroomed flat, although these plans in the event did not materialise.
4. On 30 January 1989 the first defendant in the proceedings, Barclays Bank Plc, took a legal charge against both over No.6 and No.6A London Road as security for a loan of £125,000 to the applicant. On 22 October 1990 the applicant let the ground floor of 6 London Road for a term of 20 years at a rent of £16,000 per annum payable quarterly in advance. The lessees opened a restaurant in the ground floor known as the Fortune Gate. At about this time it appears the applicant himself ceased trading at the property.
5. In a letter dated 6 March 1991 Barclays confirmed that part of the premium charged by the applicant on granting the lease of the ground floor at No.6 had been used to reduce the balance of the existing loan secured on the property. Consequently, the terms of the loan were renegotiated, and the sum reduced to some £75,000. In addition, the applicant's overdraft limit was cancelled. The new loan facility provided for quarterly payments of capital and interest in the sum of £3,370 or thereabouts, subject to annual reviews. It was agreed between the applicant and Barclays that the rental payments by the tenants amounting to £4,000-odd per quarter would be used to off-set the applicant's loan repayments. In this way, the rental payments were to provide the necessary funds to enable the applicant to service the loan from Barclays.
6. On 30 April 1991 Barclays wrote to the applicant requesting the payment of £2,000 in order to clear the overdraft. Mr Ahmed disputes the amount of the arrears alleged by Barclays. His case is that the bank has taken charges to which it was not entitled. The letter also stated that Barclays would appoint a receiver of the property if the applicant did not pay the required sum into his bank account within the next few days. The applicant subsequently came to an arrangement with Barclays to make monthly payments to reduce the overdraft, but it appears that by early 1992 the applicant was once again in default. At all events on 7 February 1992 Barclays, under a power to that effect contained in its charge, appointed a Mr Wood and a Mr Jennings of Messrs Edward Symmons and Partners as receivers of the rents payable under the lease. Mr Jennings was subsequently joined as the second defendant in the proceedings.
7. On 26 November 1992 the applicant issued proceedings for recovery of possession of the ground floor at No.6, the subject of the lease, on the basis (as I understand it) of non-payment of rent by the tenant. On 1 February 1993 the applicant obtained an order for possession of the property let by the lease and for payment of the outstanding rent and interest.
8. A letter addressed to Barclays from the solicitors acting for the applicant at that time confirms that Barclays were requiring the applicant either to sell the property or to let it. In the event on 7 October 1993 Mr Jennings, as receiver, sold the property for the sum of £135,000 or thereabouts.
9. On 28 October 1999 (that is to say more than six years later) the applicant issued the present proceedings in the Bromley County Court against Barclays and Mr Jennings, alleging that he suffered loss as a result of their actions whilst they were dealing with the property. The applicant alleges that the receiver mishandled the collection of rents; that the tenants occupying the property at that time had left due to pressure from the receiver; and that the applicant has suffered loss of income and long-term capital growth to a sum in the region of £500,000 as a result of the bank's and/or the receiver's action.
10. By their Defence dated 15 December 1999 the defendants applied to have the claim struck out under the court's case management powers as not disclosing a reasonable cause of action. Alternatively the defendants applied for summary judgment against the applicant on the basis that on the evidence the applicant's claim was in any event statute-barred under the Limitation Act 1980, the cause of action having accrued more than six years before the commencement of proceedings.
11. The application came on for hearing before District Judge Reid on 5 April 2000, when she made the order to which I have referred. She concluded that the claim should be struck out on the basis that it was statute-barred, the cause of action having arisen more than six years prior to the commencement of proceedings. She also stated that even if the applicant had pleaded a cause of action in his statement of case (which she considered he had failed to do) his claim would have been struck out in any event on the basis that it disclosed no reasonable grounds for bringing the claim.
12. The applicant appealed against that order. The appeal was heard by Her Honour Judge Hallon on 6 September 2000. Judge Hallon rightly concluded that since the appeal related to an interlocutory matter, it would be treated as a re-hearing rather than a review. Before the judge, the applicant contended that the limitation point had taken him by surprise since it had not been pleaded, and he had had no notice that it was to be taken. However, the judge concluded that he had had full notice that the point was going to be taken since it was clearly set out in witness statements which had been served upon him prior to the hearing. She concluded that the applicant had had ample opportunity to prepare his case on that point. She further held that the limitation point was a good one. She considered whether there was an arguable case under section 32 of the Limitation Act 1980 on the basis that some relevant fact had been deliberately concealed from the applicant. She concluded that there was no arguable case on that basis since information as to the sale and the selling price of the property were, as she held, all known to the applicant prior to the date of completion of the sale. The judge accordingly concluded that District Judge Reid had been "perfectly correct" in striking out his claim, and accordingly she dismissed the appeal.
13. In his oral submissions to me this morning Mr Ahmed has referred to a number of other sets of proceedings involving Barclays Bank where a number of differing claims and cross-claims are made. He invites me to view this particular application in the context of the litigation as a whole, which (he submits) is relevant to a consideration of the issue whether this particular claim should or should not have been struck out.
14. Turning more specifically to the issues in the present action, the applicant submits that the appropriate limitation period is not six years, but 12 years, on the basis that the debt secured on the property is a speciality debt. On that basis he submits that both District Judge Reid and Judge Hallon were wrong to proceed on the footing that the applicable limitation period was six years.
15. In my judgment, however, there is no real prospect of an appeal against the order made by Judge Hallon succeeding. As to the applicant's submission that the appropriate limitation period is 12 years, with respect to him, that seems to me to be plainly misconceived. His cause of action is not for the recovery of a specialty debt; rather, it is a cause of action based on alleged misconduct and breach of duty by Barclays as chargee, and by its receiver, Mr Jennings, in their dealings with the property culminating with the sale of the property on 7 October 1993.
16. Judge Hallon went into the issues with considerable care as one would expect, and considered whether there might be some basis for arguing for a deferment of the running of the statutory limitation period pursuant to section 32 of the Act. As I indicated earlier, she concluded in the event that there was no arguable basis for such a contention. For my part I can see no prospect of her conclusions on these matters being interfered with by the Court of Appeal. Nor, in my judgment, is there any other compelling reason why the appeal should proceed.
17. Accordingly I refuse permission to appeal.
18. Finally, I should say that in any event no satisfactory explanation has been given to me by the applicant for the substantial delay which has occurred in his complying with the rules in relation to applications for permission to appeal, and I would in any event have refused an application for an extension of time in this case.
19. The application is accordingly dismissed.
(Application dismissed; no order for costs).