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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 >> Brownfern Properties Ltd v Al-Amood [2001] EWCA Civ 605 (24 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/605.html Cite as: [2001] EWCA Civ 605

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

		Royal Courts of Justice Strand London WC2 Tuesday, 24th April 2001

1. LORD JUSTICE KEENE: This is a defendant's application for permission to appeal against an order of His Honour Judge Samuels QC dated 20th September 2000, sitting at Central London County Court. An extension of time is also sought together with a stay of execution.
2. By that order judgment was given for the claimant, Brownfern Properties Limited, in the sum of £37,521.63. These were consolidated claims made by a lessor under a lease, one claim relating to alleged arrears of rent at the property at Wendover Court, Western Avenue W3, and the other for the cost of decorations and dilapidations under the lease. The lessees were the applicant and Amal Hussein Salih, they being the trustees of the Orphans Relief Fund and Charitable Trust.
3. One notable feature of the case was that the defendant, now the applicant, had been debarred by an order made on 18th May 2000 from defending the actions because of his failure to comply with earlier "unless" orders. That debarring order does not seem to have been appealed. In the event, therefore, the trial judge heard evidence only from the claimants.
4. The judge found that the lease was one for three years from 24th September 1996 at an annual rent of £14,000. It contained a number of special provisos, so-called, one of which was that that:

"3. The Tenant shall within three months from the date hereof carry out the works specified in the Schedule of Decoration annexed in a good and substantial manner to the reasonable satisfaction of the Landlord."

5. There was also a repairing covenant, at clause 3(4) of the lease relating to the interior of the premises and the appurtenances thereof by which the tenant agreed at all times to keep the interior and appurtenances in as good a state of repair and condition as evidenced by a schedule of condition. The lease was terminated by notice from the claimant under one of the special provisos.
6. The judge noted that it was for the claimant to establish its entitlement to the sums claimed. He heard evidence from a number of witnesses, and he found that the schedule of declarations and the schedule of dilapidations produced before him established what needed to be carried out, and that in the absence of any other evidence he was prepared to accept the figures, as indeed he did the calculation of the arrears of rent.
7. In the appellant's notice, Mr Al-Amood contends that he is not liable under the lease for the cost of the repairs. He also argues that it was unjust and inequitable to debar the defence pursuant to the unless order. He contends, as he has contended before me today, that his solicitors were negligent in failing to inform him of the unless order and in not complying with the unless order. Consequently, Mr Al-Amood argues before me that he is simply the victim of his solicitors' negligence.
8. He has put before me a written note of his argument. In that he contends that his liability was not as found by the judge below and he emphasises that had the case been fully defended a different picture would have emerged. There is some reference by the learned judge to that possibility in his judgment. Mr Al-Amood has gone through the evidence which was presented to the Court below on behalf of the claimants and advances a number of detailed criticisms of that evidence. It is unnecessary to go through those in detail for the moment for reasons to which I shall come. They are essentially questions of fact and evidence.
9. On the construction of the lease, I can see no real basis for arguing that the tenant was not liable for these repairs and redecorations. Not merely was there a repairing covenant, in the terms to which I have referred and the schedule of condition annexed to the lease, but there was also the special proviso number 3, set out earlier in this judgment, which obliged the tenant to carry out certain works specified in another of the schedules annexed to the lease, that work being required to be done within three months from the date of the lease itself. So there was a positive obligation on the tenant to put the property in effect into good and reasonable decorative order. I cannot see that the learned judge has gone wrong in his approach to the construction of the lease and to the liability resting in principle on the lessee.
10. There was evidence before the judge on which he could properly find that those repairs and decorations as claimed were required and that their cost was the amount which he concluded was established. In the same way there was evidence on which the learned judge was entitled to conclude that the arrears of rent were as he ultimately found.
11. The problem essentially faced by Mr Al-Amood is that he was debarred from defending the claim in the county court by the order which was made to that effect on 18th May 2000. The various detailed matters, which he seeks to raise on appeal, are essentially questions of fact and evidence which no doubt would have been raised by him had he been able to defend the case in the Court below. However, an appeal is not an appropriate mechanism for, in effect, circumventing the unless order and the debarring order which prevented him from raising these points in the county court. The debarring order undoubtedly put Mr Al-Amood in a very difficult position indeed, but that order does not seem to have been challenged either on appeal or by way of any application in the county court during the four months between its making and the trial of this matter. The trial judge was entitled to operate on the footing that there was a valid order and he had to deal with the evidence as best as he could in that situation.
12. I quite understand that Mr Al-Amood now complains that he was failed by his then solicitors and that the non-compliance with the unless order and the failure to challenge either that or the debarring order was the responsibility of his solicitors who, he says, acted negligently. Those solicitors are not present and are not a party to this appeal, any more than they were a party to the case below. The issue of whether or not they were negligent is not an issue which can be properly explored in these proceedings. It may be that if Mr Al-Amood is right, he may have a remedy against his solicitors. I emphasise the word "if" because I do not seek to encourage him to take action against them, but it may be that there is a remedy there if the assertion which he makes is properly founded.
13. What this appeal cannot do is itself act as some way of challenging the unless order or the debarring order when neither of those is challenged in the appellant's notice or was challenged in the Court below. In those circumstances the county court judge had to operate on the basis that there was a valid debarring order. It seems to me that he arrived at a proper decision in the circumstances with which he was faced.
14. Looking at the matter overall, I cannot see that there is in this appeal any real prospect of success. That is the test which I have to apply, and that being the conclusion which I have reached there is no alternative but to dismiss both the application for permission to appeal and the other applications which are before me.
15. I would like to pay tribute, nonetheless, not only for the very succinct and courteous way in which Mr Al-Amood has presented this matter today but also for the very helpful and well-prepared written document in which he set out his arguments which have been of great assistance to the Court.
(Applications for permission to appeal, extension of time and stay of execution dismissed)