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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Johnson v Luxcool Ltd & Ors [2008] EWHC 1591 (QB) (15 July 2008) URL: http://www.bailii.org/ew/cases/EWHC/QB/2008/1591.html Cite as: [2008] EWHC 1591 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2008

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.:


 


Introduction

1. This action arises out of the occupation by the claimant, Miss Julie Johnson, of an area of land comprised in four separate titles. The land in question is all in London E5. The titles involved are, first, that numbered EGL187776 at HM Land Registry, which relates to the property known as 87 Upper Clapton Road ("No. 87"); second, that numbered EGL278506 at HM Land Registry, which relates to the property known as 89 Upper Clapton Road ("No. 89"); third, that numbered LN92003 at HM Land Registry, which relates to the property known as 16 and 18 Rossendale Street ("No. 18"); and, finally, that numbered LN6541 at HM Land Registry, which relates to the property known as 20 Rossendale Street (No. 20"). Miss Johnson did not occupy the whole of No. 87, No. 89, No. 18 and No. 20, but only parts of each. It is convenient to refer in this judgment collectively to the land which Miss Johnson occupied as "the Premises".
2. There was, I think, no dispute as to by whom the freehold title to each of No. 87, No. 89, No. 18 and No. 20 was held from time to time over the period which was relevant to the issues in this action. The position was revealed by the office copy entries of the titles which were put in evidence.
3. A company called Elwoodcity Ltd. ("Elwoodcity") was registered as the proprietor of No. 87 with title absolute on 28 January 1981. Elwoodcity sold that interest to a company called Gratero Trading Ltd. ("Gratero") in 1997, and Gratero was registered as the proprietor with title absolute on 2 September 1997. Gratero in its turn sold the freehold interest in No. 87 to the first defendant, Luxcool Ltd. ("Luxcool") on 19 July 2002. On 26 August 2005 Mrs. Nasim Akhtar Hussain, the wife of the third defendant, Mr. Tariq Hussain, was registered as the proprietor of No. 87 with title absolute, and she remains the freehold owner.
4. Mr. Herman Herskovic was registered as proprietor of No. 89 with title absolute on 23 December 1992. He sold his interest to Gratero in 1997, and Gratero was registered as proprietor with title absolute on 30 July 1997. Gratero sold its interest in No. 89 to Luxcool at the same time as it sold its interest in No. 87. Luxcool transferred its interest in No. 89 to Mrs. Hussain at the same time as it transferred its interest in No. 87 to her. She remains the freehold owner of No. 89 as well as that of No. 87.
5. On 21 January 1993 a company called Urbanplots Ltd. ("Urbanplots") was registered as proprietor of No. 18 with title absolute. Urbanplots remains the freehold owner of No. 18. There was a hiccough in its existence as it was struck off the Register of Companies on 30 August 1994, but it was restored to the Register for certain limited purposes only by an order of the Companies Court made on 2 March 2004.
6. Gratero was registered as proprietor of No. 20 with title absolute on 30 July 1997. It remains the freehold owner of No. 20.
7. Luxcool was incorporated as company no. 4256812 on 23 July 2001. It seems that by May 2004 the second defendant, Mr. David Bineth, had become a director of, and a shareholder in, Luxcool. With effect from 6 May 2004 the issued shares in Luxcool were transferred to the third defendant and his wife. Mr. Hussain became a director of Luxcool and Mrs. Hussain became the company secretary.
8. The case for Miss Johnson in this action was that she had been a tenant of the Premises and that she was dispossessed by Luxcool and Mr. Hussain on about 9 July 2004. She contended that that dispossession amounted to a breach of the covenant for quiet enjoyment implied into her alleged tenancy agreement and a trespass. She also contended that damage had been done to the structures on the Premises and the fittings therein by Mr. Hussain and/or Luxcool, and that various of her goods on the Premises as at 9 July 2004 had been taken by Luxcool and/or Mr. Hussain and other goods had been damaged. She sought orders in this action restoring her to possession of the parts of the Premises which were in No. 87 and No. 89, return of the goods which she contended were taken, and damages for damage and destruction on the Premises effected by, or on the instructions of, Luxcool and/or Mr. Hussain, both to the structures on the Premises and to goods said to have belonged to the claimant. Luxcool and Mr. Hussain did not admit that the claimant had ever had any tenancy of any part of No. 87 or any part of No.89. However, they accepted that on or about 9 July 2004 Mr. Hussain, along with police officers and representatives of the Environmental Health Department of the Council of the London Borough of Hackney ("the Council"), did enter upon the Premises, and that the police officers or representatives of the Council did remove items from the Premises. Luxcool and Mr. Hussain also accepted that Mr. Hussain had caused to be removed the roofs over those structures on the Premises which were in fact on No. 87 or No. 89 and that the claimant had been denied access to the Premises since about 9 July 2004. However, his case was that everything which he admitted doing had been done not in his personal capacity, but as a director of Luxcool, and that in any event what had been done was not wrongful.
9. The principal issues relevant to liability in this action were thus whether Miss Johnson had ever had any tenancy covering those parts of No. 87 and No. 89 which were included in the Premises, what damage precisely had been done by Mr. Hussain or Luxcool to the structures, fittings and goods on the Premises as at 9 July 2004, and whether Mr. Hussain, rather than police officers or representatives of the Council, had removed any items from the Premises on or about 9 July 2004.
10. Apart from the issues relevant to liability there were substantial disputes in relation to quantum. Miss Johnson sought aggravated and/or exemplary damages. She contended that Mr. Hussain had damaged beyond repair goods to the value of £15,120 on the Premises, and that he had removed from the Premises money and goods to the value of £9,720. It was contended that she had spent at least £73,262.92 on the structures on the Premises before 9 July 2004, and on fitting out those structures. She asserted that she had run the Premises prior to 9 July 2004 as a social club and that she had made an income of £138,969 as a self-employed club owner in the year ending 5 April 2004. She sought damages in respect of her loss of earnings from about 9 July 2004. It was denied on behalf of Luxcool and Mr. Hussain that either was liable in respect of aggravated or exemplary damages. All of the claims for damages were disputed as to amount by Luxcool and Mr. Hussain.
11. It is convenient to consider first the issue whether Miss Johnson ever had any sort of tenancy of any part of No. 87 or No. 89 which was within the Premises.

Did the claimant have a tenancy of any part of No. 87 or No. 89?

12. The case of Miss Johnson as set out in the Re-Amended Particulars of Claim was that she had a weekly tenancy of the Premises. That case was put in this way:-

"1. In or about January 1997 the Claimant started to occupy business premises at the rear of 87 – 89 Upper Clapton Road and 18 – 20 Rossendale Road, London E5 9BU known as Buds Social Club ("the premises"). The access to the premises is by way of a covered passageway to the side of 87 Upper Clapton Road. Prior to January 1997 the premises had in part been occupied and managed as Buds Social Club by the Claimant's former partner, but the whole premises needed to be refurbished by the Claimant to make them usable.

2. The Claimant at all material times occupied the premises for the purposes of her business pursuant to a weekly tenancy granted to her by a Mr. Frederick George Errington who has at all material times acted on behalf of, and/or purported to act on behalf of the owners of the premises. The said tenancy is evidenced in part by a document headed "Tenancy/rent agreement" dated November 2000 which recorded that the rent was then £120/week, a copy of which is attached hereto as Annex A."

13. In her witness statement made for the purposes of this action Miss Johnson explained her case in relation to her alleged tenancy of the Premises in this way:-

"2) I have been a Tenant of the premises at the rear of 87/89 Upper Clapton Road from January 1997 from where I ran Buds Social Club, albeit I was never given a written Tenancy Agreement until November 2000. I have already disclosed to the Honourable Court the written Tenancy/Rent Agreement granted to me in November 2000 with my Amended Particulars of Claim. Prior to my occupation, the premises had been occupied and managed as Buds Social Club by my former partner for about a year before this time. The landlord at the time was a Mr. Herman Herskovic, who had been in ownership of the property since 1992. In or around July 1997 both 87 and 89 Upper Clapton Road were transferred to Gratero Trading Limited. Gratero and its sister Company Urbanplots Limited have owned the properties forming numbers 16; 18 and 20 Rossendale Street which back on to the rear of 87 and 89 Upper Clapton Road.

3) From the outset, I was paying rent in cash on a weekly basis to the Landlord's Managing Agent, a Mr. Frederick Errington. Up to the year 2000, I had been running a social club, and thereafter I was granted a Liquor License [sic]. From the commencement of my occupation, I had to keep the premises repaired and redecorated at my own expense. I accept that I did not pay rent directly to Mr. Errington for using the rear annex of 89 Upper Clapton Road, but I continued to occupy these premises as part of my business throughout my occupation on the basis that I had made substantial improvements to the rear annex. I had unrestricted access to and usage of the rear annex throughout my occupation. I would not have been granted a Liquor Licence to run Buds Social Club unless the premises had the benefit of the toilets situated in the rear annex, due to health and safety requirements. The plan drawn up for Liquor License [sic] purposes which is attached to my Amended Particulars of Claim shows the toilets as part of premises and this in itself is evidence of the fact that I had exclusive possession and usage of the rear annex. "

14. A copy of the so-called "written Tenancy/Rent Agreement" ("the Agreement") was put in evidence. It was a very curious document. It was headed with the name of a company called Wavyhill Ltd. ("Wavyhill"). Wavyhill was a company incorporated in England and Wales as company no. 03557485 on 5 May 1998, but dissolved on 15 February 2000. It never filed any accounts or made any returns. Beneath the name of Wavyhill on the Agreement appeared the name of F. G. Errington as "Manager", along with a couple of telephone numbers. Below those numbers the Agreement as completed read:-

"AUTHORISED LETTING/MANAGEMENT AGENT.

TENANCY/RENT AGREEMENT DATE: NOV 2000

NAME J JOHNSON

ADDRESS 8 HOLMBURY VIEW CLAPTON

LONDON E5 9EG TEL: 02088067856

RE PREMISES REAR OF 87/89 UPPER CLAPTON ROAD

LET AS WORKSHOP/FACTORY/LOCK UP ……

RENT PER WEEK £120

RENT EXCLUSIVE OF ALL SERVICES AND RATES

RENT TO BE PAID WEEKLEY [sic]

OR 4 WEEKS IN ADVANCE …..

DEPOSIT 8 WEEKS

TERMS 6 YEARS

NOTICE 8 WEEKS UNLESS RENT ARREARS OCCURS CONTINUALY [sic]

REMARKS "

There followed what appeared to be signatures of Miss Johnson and of Mr. Errington.

15. Obvious questions arose on the face of the Agreement. One was why it had been made at all, bearing in mind that, on the evidence of Miss Johnson she had by the date of the Agreement been in occupation of the Premises for nearly four years. Another was why it was made on a form of document apparently intended for use by Wavyhill at a point when Wavyhill had been dissolved for some 9 months. It was curious that, notwithstanding the fact that it was the case of Miss Johnson that she had occupied the Premises, the Agreement appeared only to relate to those parts of the Premises on No. 87 and No. 89, and not to those parts of the Premises on No. 18 and No. 20. Despite the fact that the Agreement specified rent as payable at a rate assessed weekly, it seemed that the intended length of the term of the tenancy was 6 years from some date. If the material date was November 2000, then the length of the term, if the Agreement was effective in law to create such a term, continued until November 2006. However, if the length of the term commenced in January 1997, it expired by effluxion of time in January 2003 in any event, subject to the possibility of continuance pursuant to the provisions of Landlord and Tenant Act 1954 Part II. I was rightly reminded by Mr. Evan Price, who appeared on behalf of Luxcool and Mr. Hussain, that if the Agreement did indeed purport to create a term of six years from any date, as it was not by deed, the effect of Law of Property Act 1925 s.54 was that it was ineffective.
16. Miss Johnson did not attempt in her witness statement to grapple with any of these questions. Mr. Price was content not to ask her any questions about them, but to make submissions to me based on the paragraphs of the witness statement which I have quoted.
17. Mr. Frederick Errington made a witness statement on behalf of Miss Johnson. He was not required to attend the trial to be cross-examined on that witness statement. In his witness statement Mr. Errington said, so far as is presently material:-

"2. I am a Letting/Management Agent and I have been collecting rent from tenants occupying the properties at 87 and 89 Upper Clapton Road London, E5 for the last thirty years and I have also been authorised to collect rent by the owner of 18 and 20 Rossendale Street, Gratero Trading Limited and I attach to this Statement a true copy of the letter of authorisation for the collection of rent from the Company's Solicitors marked as Exhibit "FE1" by way of evidence.

3. I have known the Claimant to have been in occupation of the rear annex of 89a Upper Clapton Road and the rear part of 87 Upper Clapton Road since 1997 from where she ran her business as proprietor of Buds Social Club. I can confirm that since 1997 I have been collecting rent from her in cash on a weekly basis for her occupation of the rear part of 87 Upper Clapton Road only. I have been collecting rent from the Claimant on behalf of her Landlord, Mr. Herschkovitz [sic]. The access to Buds Social Club was through the passage way to the side of 87 Upper Clapton Road.

4. I continued to collect rent from the Claimant from 1997 for her occupation of the rear of 87 Upper Clapton Road only, but there was no rent agreement made for the rear annex of 89a Upper Clapton Road and around August 2002 the rear annex of 89a Upper Clapton Road was sold to the First Defendant. The First Defendant did not take any steps to evict the Claimant from the rear annex of 89a Upper Clapton Road until she was illegally evicted from the premises at the end of June 2004 by improper means by the Third Defendant who purported to be the new owner of the premises occupied by the Claimant. However, it is my understanding that the rightful owner of the premises at the rear of 87 Upper Clapton is Mr. Herschkovitz, on whose behalf I have been managing the premises and collecting rent from the tenants for the past thirty years.

5. As far as I am concerned the Claimant has never occupied the rear annex of 89a Upper Clapton Road illegally. At all times I authorised her to be there as I was managing the premises."

18. This account of Mr. Errington is impossible to reconcile with the ownership of No. 87, No. 89, No. 18 and No. 20 from time to time as revealed by the office copy entries from HM Land Registry. Gratero has never been the freehold owner of No. 18 – at all material times the freehold owner of No. 18 has been Urbanplots. Mr. Herskovic was the freehold owner of No. 89 from December 1992 until July 1997, but never that of No. 87.
19. It seems curious that in his witness statement Mr. Errington made no reference at all to the Agreement. Moreover, it is not easy to understand why, if Mr. Errington were content for Miss Johnson to occupy part of No. 89, he did not claim any rent in respect of such occupation. It appeared to be common ground between Miss Johnson and Mr. Errington that Miss Johnson never paid any rent in respect of the part of the Premises which was on No. 89. It thus seems that her occupation of that part of the Premises was, on her own case, at best pursuant to a bare licence.
20. The matter is further complicated by reference to the document upon which Mr. Errington relied as giving him authority to collect rent. A copy of the letter in question was put in evidence. It was dated 11 February 2000 and was written by a firm of solicitors called Turners, with an address in Poole Road, Bournemouth. The material part of the letter was in these terms:-

"Re: Management of properties in the ownership of our Client GRATERO TRADING LIMITED

As Solicitors for Gratero Trading Limited of PO Box 132 Limassol 3601 Cyprus WE HEREBY AUTHORISE and REQUEST you to collect rents receivable in respect of the properties listed below. You will receive separate instructions as to how such rents collected by you are to be remitted.

The properties concerned are as follows:-

87B Upper Clapton Road (Shop)

87B Upper Clapton Road (Shop) [sic – the same entry twice]

87 Upper Clapton Road First Floor Flat

87 Upper Clapton Road Second Floor Flat

89 Upper Clapton Road

18 Rossindale [sic] Street

20 Rossindale [sic] Street"

21. The terms of the letter suggest that this was the first instruction of Mr. Errington on behalf of Gratero. It does not refer to any earlier authorisation. It did not appear that Mr. Errington had been given any instructions as to the remittance of monies prior to the writing of the letter, yet the letter in terms recorded that instructions as to remittance were to be given separately. Leaving aside the repeated reference to the shop in No. 87, the fact that three parts of No. 87 were listed separately, whereas each of the other properties was listed only once, is suggestive of the list being of the separate lettings in respect of which rent was to be collected. If that is a correct interpretation, it is notable that the list contained no reference to any letting of the Premises as such. It is also curious that the list of properties set out included No. 18, which belonged at all material times to Urbanplots, and not to Gratero, and that only 18 Rossendale Street appeared in the list, whereas in fact what I have called No. 18 actually comprised both 18 Rossendale Street and 16 Rossendale Street. A further aspect of the letter which is worthy of note is that by it Mr. Errington was only authorised to collect rents – he was not authorised in terms to enter into lettings on behalf of Gratero. Mr. Price relied heavily upon that circumstance.
22. A further document upon which Mr. Errington relied in support of his authority to act on behalf of Gratero rather confirmed the impression that his authority to collect rent only dated from February 2000. The further document was a letter dated 30 May 2003 from Gratero addressed to Mr. Errington. Puzzlingly, the heading at the top of the letter was not "Gratero Trading Limited" but "Gratero Limited". The material part of the letter was in these terms:-

"Re: 16 & 18 Rossendale Street

You have been our rent collector for some time and we are happy with your work.

We hereby instruct you to continue collecting the rent on our behalf. Rent must be paid only to you and any rent paid to somebody else will not be recognised. "

23. Again it is a very strange letter. There was no obvious reason to write it at all, as it seemed simply to instruct Mr. Errington to continue to do what he had already been instructed to do. The last sentence of the passage quoted seems to perform no function in a letter addressed to Mr. Errington. If third parties had been making payments to someone other than Mr. Errington, it was they who needed to be told that such payments would not be recognised, not Mr. Errington. However, it is odd that the heading of the letter mentioned only two properties, that one of those two, 16 Rossendale Street did not feature in the list in the letter dated 11 February 2000, and that both of the properties belonged not to Gratero, but to Urbanplots.
24. At paragraph 7 of his witness statement Mr. Errington said:-

"I can confirm that since the demolition of the premises at the rear of 87/89 Upper Clapton Road in 2004 by the Third Defendant the Claimant has obtained permission to rebuild parts of the damaged premises from the owners Urbanplots Limited and Gratero Trading Limited who own 18 Rossendale Street and 20 Rossendale Street respectively and as Managing Agent on behalf of the owners I was signatory to this agreement and I attach to this Statement a true copy of the said agreement marked as exhibit 'FE2' by way of evidence."

25. The so-called agreement was in manuscript and undated. The text was:-

"This is to confirm that we Urbanplots Ltd. (No. LN92003) give permission to Miss Julie Johnson to rebuild the premises, demolished at the rear of 87/89 Upper Clapton Road by the new owner of Luxcool Ltd. (No. 4256812) Mr. Hussain.

This property is owned by use [sic] (Urbanplots Ltd)"

Mr. Errington then signed the document "For and on behalf of Urbanplots Ltd. and Gratero Trading Ltd."

26. Where Mr. Errington obtained authority to write the document on behalf of anyone did not emerge. The text of the document purported to grant permission only on behalf of Urbanplots and only in relation to No.18. The documents put in evidence concerning Urbanplots did not indicate that it had any connection with Gratero, which appeared to be a company incorporated in the Republic of Cyprus. The current director of Urbanplots seems to be Miss Annette Prince, and the current company secretary to be Miss Natalie Marie Campbell.
27. Although Miss Johnson was not cross-examined on the passage from her witness statement which I have quoted, she was cross-examined at the trial on other matters. As I shall explain in dealing with those matters, I formed the view that the evidence of Miss Johnson was thoroughly unreliable, and I reject her evidence where it was in conflict with the evidence of Mr. Hussain or unsupported by apparently reliable contemporaneous documentation.
28. I am not satisfied on the evidence relied upon by Miss Johnson as demonstrating that she had a tenancy of the Premises that she had any such tenancy. I am not satisfied that she ever had any sort of tenancy of any part of either No. 87 or No. 89. I therefore reject her claims insofar as they depended on her having a tenancy of the Premises or any part thereof.

What occurred on 9 July 2004 and thereafter at the Premises

29. The claimant did not, in her witness statement, deal at all specifically with the events of 9 July 2004. All she said was:-

"4) …

to my astonishment on 09^th July 2004 I found myself locked out of my premises and thereby blocking the entrance to my club, as a consequence of which I suffered loss and damage to my stock and equipment.

5) The Third Defendant in fact, trespassed on my premises and caused malicious damage, demolishing part of my premises; knocking down the lounge bar and dance floor walls and destroying the toilets. He prevented me from re-entering my premises, and thus illegally and wrongfully evicted me from my premises. I have since been unable to regain possession of my premises and have thereby suffered and continue to suffer loss and damage at the hands of the Defendants. I attach to this Statement marked "JJ1" a synopsis of all the work carried out by me to the premises since 1997. I wish and intend to re-enter the premises and re-occupy them so that I can run my club again, and for this purpose I accordingly seek compensation from the Defendants to enable me to rebuild the premises and re-open my club."

30. Mr. Hussain gave evidence on his own behalf and on behalf of Luxcool. In his witness statement made for the purposes of this action he said this about the events of 9 July 2004:-

"13. On or around 9^th July 2004 the police and the Environmental Health Department of the Local Authority attended at the Premises. They called me in the morning and told me they would be at the premises at approximately 11.30 am-12pm. I had informed them that I would be at another property at that time and the police agreed to meet me at 81 Upper Clapton Road, which I also own. They collected me from this property and escorted me to 87-89 Upper Clapton Road. We entered the premises together and saw the manager of the club. The police spoke to her in front of me and told her that I was the owner and that possession was being handed to me. She did not reply. She then left the premises with another two persons, whom I cannot identify.

14. The Local Authority started removing a number of items from the Premises including audio equipment and speakers. Neither I nor the First Defendant company kept any records of the items removed and nor were any of the items retained by us. I remained on the premises at this time.

…

18. To the best of my knowledge, no items belonging to the Claimant or any other party were removed by me or anyone acting on my behalf. The day after the visit of the police officers and the Local Authority I instructed builders to erect a plasterboard wall on the boundary of land owned by me and asked them to block off any entrance to the premises at the side of 87 Upper Clapton Road. They also took off the roof of the structure erected on the First Defendant's land. I had already discussed this with the local authority and police prior to the incident. It was a joint decision that the best way to prevent the premises being used illegally was to remove the roof and erect a new wall.

…

20. As I have indicated earlier, at no point has Luxcool while I have been the director or myself ever destroyed or converted any of the articles or possessions which the Claimant claims she has lost. On the occasion when the police and the Local Authority attended the goods and items removed were kept by the police and/or the Local Authority and it is to them that the Claimant should look in the event that any loss of goods is alleged."

31. The evidence of Mr. Hussain that representatives of the Council had removed items on 9 July 2004 was confirmed by a letter dated 24 June 2008 written by Mr. Joe Ben Davies, Team Leader, Pollution Control, of the Council to Messrs. Johns and Saggar, the solicitors acting on behalf of Mr. Hussain. The material part of the letter was in these terms:-

"Please find attached a list of equipment removed by Council officers from the above premises on 9^th July 2004. You will note on the attachment and in my hand writing a note stating that all the equipment was returned on 23^rd March 2005."

32. The list attached amounted to 22 items, of which 16 were speakers and three were amp units of some kind. The remaining items were a portable CD player, a double turntable and mixer, and something illegible.
33. In cross-examination Miss Johnson told me that the items seized by the representatives of the Council did not belong to her, but had been placed in the Premises by someone who was hiring them for some sort of function. The items were thus returned to that person, and not to her. She also said that she had not herself seen Mr. Hussain removing any item from the Premises.
34. As I have already noted, Mr. Hussain accepted that he caused builders instructed by him to take the roofs off the structures forming part of the Premises which were on No. 87 or No. 89. In cross-examination he told me that that work had been done on 9 July 2004 in his presence and under his supervision. In the course of the trial an issue developed as to what parts of the Premises were on No. 87 or No. 89. That issue seemed to develop because Mr. Hussain and Luxcool instructed a surveyor, Mr Warren Penfold, to inspect the area of No. 87 and No. 89 and to determine where the boundaries lay between those properties and No. 18 and No. 20. The purpose of giving those instructions was plainly to seek to make good the contention of Mr. Hussain that the only areas of the Premises from which the roofs were removed on his instructions were those on No. 87 or No. 89. It had not been sought before this point on behalf of Miss Johnson to differentiate which precise parts of the Premises were on which of No. 87, No. 89, No. 18 or No. 20.
35. Mr. Penfold wrote a letter dated 23 June 2008 to Messrs. Johns and Saggar. The material part of the letter was in these terms:-

"We have been provided with copies of the Land Registry Title Nos. EGL187776 in relation to 87 Upper Clapton Road and EGL278506 in relation to 89 Upper Clapton Road.

87 Upper Clapton Road

We can confirm from on site measurement that the Title Plan concurs with 'boundaries' on site. The area of roof the applicant removed from the building at the rear of 87 Upper Clapton Road is situated on the Title land. We attach our measured plan with the boundaries highlighted in red together with photographs showing the area of roofing removed. The roofing remaining corresponds to the assumed Title for 18 Rossendale Street.

89 Upper Clapton Road

We have undertaken on site measurements however boundaries are not defined. There is no boundary demarcation between the rear of 89 Upper Clapton Road and 20 Rossendale Street and we enclose photographs showing the overgrown area of land/buildings concerned.

The western boundary to the rear of the adjacent property at 91 Upper Clapton is clearly defined and measurable and helps when assessing where the rear boundary of the subject property should be. The boundary at 89 Upper Clapton Road should be approximately 3 metres to the west as shown on the attached plan. Roofing has been removed from the small building within this area and our client advises that he has not removed roofing from the adjacent small building to the west. The area is overgrown and building derelict."

36. I acceded at the start of the trial to an application on behalf of Mr. Hussain and Luxcool for permission to adduce the evidence of Mr. Penfold in that letter as expert evidence.
37. During the course of the trial a surveyor instructed on behalf of Miss Johnson, Mr. John Carton, inspected the area of No. 87 and No. 89. He prepared a report dated 1 July 2008 following that inspection. I acceded to an application on behalf of Miss Johnson for permission to rely upon that report as expert evidence. In his report Mr. Carton did not seek to challenge the conclusions of Mr. Penfold. He did not comment upon those conclusions at all.
38. In his oral evidence Mr. Hussain told me that what Mr. Penfold said in his letter dated 23 June 2008 Mr. Hussain had told him about not removing roofing from the small building to the west of the boundary, as determined by Mr. Penfold, between No. 89 and No. 20, was correct. Mr. Hussain had told Mr. Penfold that, and it was true.
39. I accept the evidence of Mr. Penfold as to the locations of the boundaries between No. 87, No. 89, No. 18 and No. 20. I accept the evidence of Mr. Hussain that he did not cause to be removed any roof of any part of a structure on the Premises which was not on either No. 87 or No. 89. I also accept his evidence that he did not remove, or cause to be removed, any item of goods, or money, from the Premises and that he did not damage, or cause to be damaged, any item of goods or any part of the structure of, or any fitting in, the parts of the Premises not within No. 87 or No. 89. Photographs of the Premises which were put in evidence showed, as it seemed to me, both that the roofs of the structures on the Premises other than those on No. 87 or No. 89 were left intact after the removal of the roofs on parts of No. 87 and No. 89, and that the contents of the latter parts of the Premises were left undisturbed, albeit unprotected from the elements. From the report of Mr. Carton it seemed that the effects of time and the weather had been to cause considerable damage to the Premises since 9 July 2004.
40. In my judgment the removal of the roofs which Mr. Hussain instructed on 9 July 2004 plainly exposed to the risk of damage those parts of the structures and fittings which were below the roofs removed, as well as any goods in the rooms in question. Thus, in principle, if damage had been caused to any such goods, it seems to me that that would have amounted to a trespass to the goods in question in respect of which Miss Johnson was entitled to damages. I do not consider that Miss Johnson would have been entitled to damages in respect of any harm caused to the structures themselves or to fittings therein, because on my findings Miss Johnson had no right to occupy the structures and no right to place fittings therein. She was simply a trespasser, or, at best, a bare licensee.
41. Unfortunately there was no clear evidence of any goods being damaged or destroyed in any area beneath a roof which Mr. Hussain caused to be removed. A photograph put in evidence showed what appeared to be a fruit machine and some sort of video game machine in a room the roof of which had been removed. However, there was no pleaded claim for damage to either of these machines. The items which it was pleaded under Particulars of loss and damage under paragraph 12 of the Re-Amended Particulars of Claim were "Possessions damaged beyond repair by the Third Defendant" were:-

"(1) pool table

(2) halogen heaters (4)

(3) refrigerator and freezer behind bar

(4) bar counter and surfaces (water damage)

(5) board, card and other games

(6) cloakroom rack and hat stand

(7) carpet throughout the premises (including relaying)

(8) glassware, crockery and cutlery

(9) bar stools and chairs

(10) CDs, records, tapes and DVDs

(11) emergency and exit lights"

42. The evidence that any of these items had been damaged at all consisted simply in the statement of truth signed by Miss Johnson at the end of the Re-Amended Particulars of Claim. That was in itself unfortunate because it was common ground that Miss Johnson had not been at the Premises on 9 July 2004 when the police officers, representatives of the Council and Mr. Hussain entered. She had not thereafter been permitted to enter No. 87 or No. 89, but it appeared that she had got into the Premises in about November 2004, on the occasion upon which photographs were taken from the surviving roofs, by climbing over a wall. She did not give any evidence as to what she had discovered on that occasion in relation to any damage to any property belonging to her.
43. There was no evidence as to where in the Premises any of the items which it was alleged had been damaged beyond repair by Mr. Hussain had been at the time of the removal of the roofs on 9 July 2004. The furthest that any indication went was that on a plan annexed to the Re-Amended Particulars of Claim as Annex B and which was relied upon as showing the layout of the Premises, a pool table was shown in the area described as the "Lounge Bar" and a bar counter was shown in the area described as "Dance Floor". The plan in question ("the Plan") was dated October 2001 and bore the legend, "NOTE THIS PLAN HAS BEEN PREPARED FOR LIQUOR LICENSING PURPOSES ONLY". Mr. Hussain accepted that he had caused to be removed the roof over the area described as "Lounge Bar", but he denied that he had caused to be removed the roof over the area described as "Dance Floor". At the time of the photographs which were put in evidence the roof over the "Dance Floor" area appeared to be intact. Mr. Hussain told me that he could not say whether the pool table had been in the area of the "Lounge Bar" on 9 July 2004. He said that he had seen it in that area subsequently, propped up on its side against a wall. By that point, he said, vandals and others had, to his knowledge, entered the Premises on a number of occasions after 9 July 2004. As I understood it, the photograph showing the two games machines which I have mentioned was of the "Lounge Bar". So far as I could see, no pool table was visible in that photograph.
44. Consequently I am not satisfied that any damage to any pool table was caused by the removal by contractors instructed by Mr. Hussain of the roof over the area called "Lounge Bar". I fail to understand how any damage could have been caused to the bar counter in the "Dance Floor" area, or any refrigerator or freezer behind it, or any stools or chairs in the vicinity of it, by the removal of the roof over the "Lounge Bar" area. The "Dance Floor" area retained its roof. I am not satisfied that there was any damage to any goods in the "Dance Floor" area as a result of the removal of the roof over the "Lounge Bar" area.
45. In the result I am not satisfied that any damage to any goods belonging to Miss Johnson was caused by the removal of the roofs which Mr. Hussain instructed.

Loss and damage allegedly sustained by Miss Johnson

46. The case for Miss Johnson was that she had operated a social club in the Premises from January 1997, or thereabouts, until excluded on about 9 July 2004. On taking up occupation of the Premises in the first place, she said, she had undertaken various works to make the Premises fit for use as a social club. She described in some detail in an attachment to her witness statement prepared for the purposes of this action what works had been undertaken. It is unnecessary to set out in this judgment all of the work in question. It is enough to say that the works undertaken were of a fairly basic kind and the structures which comprised the social club were rudimentary. In particular, Miss Johnson accepted that the roofs over the social club comprised rotten timbers covered by roofing felt which was inadequate to prevent ingress of water and that all that was done at that stage was to replace roofing felt and to apply bitumen in some areas.
47. In this action Miss Johnson complained that in August 2002 the second defendant, Mr. David Bineth, had wrongfully entered upon the Premises and had caused damage to the structures and to property within it. The claims of Miss Johnson against Mr. Bineth were compromised and Mr. Bineth took no part in the trial. However, following the alleged wrongful entry in 2002 Miss Johnson contended that she had caused further work to be undertaken in the Premises, both to repair damage allegedly caused by Mr. Bineth and to improve the Premises. As against Luxcool and Mr. Hussain Miss Johnson contended that the works undertaken following the entry of Mr. Bineth in August 2002, as well as the works already completed which were not damaged on that entry, were rendered nugatory by the damage caused by Luxcool and Mr. Hussain on and after 9 July 2004, and so she was entitled to compensation in respect of the loss of the value of the works, alternatively she was entitled to the cost of repairing the structures of the Premises to make them fit for use once more.
48. No evidence of any sort was led on behalf of Miss Johnson as to the cost of repairing any structure or fitting on the Premises.
49. In support of her claims for the costs of works undertaken to the Premises which were rendered nugatory Miss Johnson produced some 70 pages of copies of till receipts, invoices and other documents which were said to evidence the expenditure in question. Some of those invoices related to the purchase of portable equipment or furnishings, but most seemed on their respective faces to relate to items which would be utilised to fit out a structure. None of the documents relied upon was dated earlier than 27 October 1999. The documents produced seemed to show that serious work only began to be undertaken from about April 2000, with the main initial works being undertaken in September, October and November 2000. In respect of the works at this stage the invoices and till receipts were typically in respect of small amounts of materials, suggesting that the work of using the materials was undertaken by Miss Johnson herself or others assisting her without payment. The total amount of expenditure evidenced by what appear to have been contemporaneous invoices and till receipts up to 13 November 2000 was £4,249.23. There was evidence of some expenditure on lighting effects and electronic equipment in August 2001 (£52), October 2001 (£100), December 2001 (£2,169.93) and February 2002 (£400), and purchase of some cooking utensils, at a total cost of £5,299.25, a cigarette machine (£650) and an arcade video game (£2,550) in about March 2002. A closed circuit television system was installed in May 2002 at a cost of £3,525. Other items of lighting effects and electronic equipment, some flooring and a neon sign were, on the face of the documents, purchased in 2002 and 2003, at a total cost of £4,066.94. Some tiling works appear to have been undertaken in May and June 2004, the materials for which cost £881.57. What was conspicuously absent was any evidence of significant expenditure on labour at any point supported by contemporaneous documents or any evidence of any significant expenditure of any kind consequent upon the alleged wrongful entry of Mr. Bineth in August 2002. Certainly the account in the attachment to the witness statement of Miss Johnson of the damage caused by Mr. Bineth in August 2002 was not borne out by the evidence of contemporaneous documents showing repair of that work being undertaken. The account in the attachment to the witness statement was:-

"3. Damage caused to each room in 2002

The Second Defendant at the time, gained entry into the office by knocking down one of the office walls and consequently damaged the brick work and plaster as well as causing damage to the skirting boards and flooring. He and persons acting upon his authority tore up the carpets in the process and removed the stock such as disco lights and other electrical equipment which had been stored in the office. Furthermore, the ceiling next to where the wall was knocked down was damaged. In the process of removing my possessions the Second Defendant destroyed the security gate and all the locks to the security gate and the door next to the rear annex was also damaged."

50. A number of the documents relied upon as evidencing expenditure by Miss Johnson on the structure of the Premises or for fitting it out were plainly produced ex post facto. Of these the most significant were 11 invoices, or purported invoices, on the printed stationery of Makeda Construction Ltd. ("Makeda"). None of these documents was dated or numbered. None showed any VAT number. None included any element of Value Added Tax on its face. Each invoice was said to refer to a period. Three periods were mentioned, "2000 – 2001", "November 2002 – March 2004" and "April – July 2004". The invoices said to relate to the period "2000 – 2001" numbered six. Five set out on their respective faces only materials, and totalled £4,518.52. The sixth was for labour in the amount of £35,000. There was one invoice in respect of the period "November 2002 – March 2004". It was in the total sum of £4,700 for parts and labour and seemed, on its face, to relate to electrical work. The remaining four invoices included three, totalling £5,609.29, for materials, and one, in the sum of £10,000, for labour.
51. Not the least of the problems raised by the purported invoices apparently produced by Makeda was that it appeared that no company with that name had ever existed. Another problem was that it was difficult to understand why Miss Johnson should herself have been purchasing materials in small amounts in September, October and November 2000, if in truth a contractor had been retained to carry out work the labour cost of which was £35,000, and which also itself supplied materials to a value of £4,518.52. No one from Makeda was called to give evidence on behalf of Miss Johnson. The Makeda invoices were, I think, put before me by Mr. Michael Collard, who appeared on behalf of Miss Johnson, pursuant to the provisions of Civil Evidence Act 1995 as evidence of the truth of their contents.
52. Miss Johnson was asked about the Makeda invoices in cross-examination. She was not able to give any explanation of them beyond that, so she said, original invoices, which she had paid, had been in the office part of the Premises at the time of the entry of Mr. Bineth and/or at the time of the entry of Mr. Hussain, and that the original documents had been lost following those entries. Consequently, she told me, she had asked a Mr. Wallace, who had undertaken the work and supplied the materials to which the Makeda invoices related, to provide evidence of what had been done, and he had provided the Makeda documents. Miss Johnson did not attempt to explain how it was that the original copies of the Makeda documents had been lost, whilst other documents, including a number of flimsy till receipts issued by B&Q Plc for small amounts of money, survived, so that copies had been able to be put into the trial bundle. It seemed to me that it was likely to be material to this conundrum that the Makeda documents were, on their respective faces, for far larger amounts, in general, than the amounts of expenditure verified by what appeared to be copies of contemporaneous documents.
53. I am not satisfied that any weight should be attached to any of the Makeda documents as evidence of any actual expenditure incurred by Miss Johnson in relation to the Premises.
54. While I am disposed to accept at face value the apparently contemporaneous documents which seemed to evidence expenditure, no real evidence was led as to where in the Premises particular items of material were utilised. If it had been relevant to make findings as to what expenditure had been rendered nugatory as a result of the entry on 9 July 2004 and the removal of the roofs which Mr. Hussain accepted, I should not have felt able to do so.
55. If I had been persuaded that damage had been caused to the pool table of which Miss Johnson complained, or to the bar counter, or to a refrigerator or a freezer behind the bar, or to bar stools or chairs, the only evidence of the value of any of these items was the verification by Miss Johnson by signing the statement of truth at the end of the Re-Amended Particulars of Claim of round figure amounts pleaded in the Particulars of loss and damage under paragraph 12 of that statement of case. Given my conclusions as to the reliability of the evidence of Miss Johnson generally, I do not accept that any of the pleaded figures is satisfactory evidence of any actual cost of replacement.
56. The alleged loss sustained by Miss Johnson as a result of not being able to carry on her social club at the Premises from about 9 July 2004 was pleaded at "£11,580.75 per month (based on the net profit for the year ending 31 March 2004)". Only one document was relied upon in support of what was alleged, a document dated 23 February 2008 produced by a Mr. Anthony Stokes, who apparently trades as "Anthony's". The material part of the document was in these terms:-

"TO WHOM IT MAY CONCERN

Re: JULIE JOHNSON t/as BUDS SOCIAL CLUB

I am writing to confirm the following information for the above named, as her book keeper, since her accountant has moved abroad.

1. Applicant: Miss Julie Johnson

2. Name of business: BUDS SOCIAL CLUB

3. Nature of business: Self employed club owner

4. Her income from the following prior years were as follows:

(i) Year to 5 April 2002 £53,271

(ii) Year to 5 April 2003 £97,403

(iii) Year to 5 April 2004 £138,969

The above information is provided in strict confidence"

57. Mr. Stokes was not called to give evidence on behalf of Miss Johnson. Again I think that Mr. Collard invited me to accept the document Mr. Stokes produced as evidence, pursuant to the provisions of Civil Evidence Act 1995, of the truth of what was set out. No financial statements prepared for Miss Johnson by any accountant were produced. Although Mr. Stokes referred to Miss Johnson having an accountant, he did not name him or her. No copies of income tax returns made by Miss Johnson were produced. No copies of any Value Added Tax returns made by Miss Johnson were put in evidence, although with the alleged levels of profit she was said to have made she ought to have been registered for Value Added Tax purposes. No copies of bank statements recording amounts of credits to any bank account were put before me.
58. Most of what emerged in evidence concerning the alleged business of Miss Johnson came simply from her. Although she said in her witness statement that she had obtained a liquor licence for the Premises, no copy of one was produced. Curiously what was put in evidence was a document which suggested that in fact she did not hold a liquor licence, but had instructed a firm called Young & Smith in about June 2004 to apply for a Justices' Licence. In a letter dated 23 June 2004 to Miss Johnson Messrs. Young & Smith wrote, so far as is presently material:-

"Further to your instructions we have applied to Thames Magistrates Court for the grant of a new Justices Licence, this will be heard on Wednesday, 21^st July, we will advise you of the time once we are notified. The magistrates will visit the premises the week prior to the hearing, and again we will advise you of the time once known."

The terms of the letter did not suggest that what was being sought was a renewal of an existing licence. I have already noted that the Plan appeared to have been prepared in anticipation of the making of an application for a liquor licence in about October 2001, but there was no evidence that any application had been made at that time.

59. It appears that in May 2004 Miss Johnson instructed Young & Smith to apply to the Council for an entertainment licence for the Premises, for in a letter dated 28 June 2004 Mr. Mike Smith, Licensing Officer of the Council, wrote to Young & Smith:-

"I refer to your letter dated 27 May 2004 regarding the application for an annual entertainment licence in respect of the above premises. It would appear to have crossed in the post with my letter of 28 May.

I should like to confirm that we will not be in a position to process the application until the following has been received:

1. The balance of the fee in the sum of £150.00.

2. A copy of the planning consent confirming that the premises holds Use Class Order A3 (if the premises will be operating primarily as a restaurant with ancillary music and dancing) or D2 (if the premises will be used primarily as a music and dancing venue). The planning consent will also need to confirm that the premises has permission to operate for the hours requested in the application form for the Public Entertainment Licence.

3. A copy of the local newspaper in which the application was advertised and the form confirming that a Notice was placed on the premises inviting objectors to write to the Licensing Service. (The public notice on the premises and the advertisement should not be displayed/published until the application is otherwise complete, including confirmation of the necessary planning consents.)

I should be pleased if you could arrange for the above to be submitted to this office within 28 days of the date of this letter. If I do not receive confirmation that the requisite planning permission is in place within this timescale I shall have to return the application as incomplete.

In the meantime, if you have any questions or require further information concerning this matter please contact this office on the above telephone number. "

60. Thus it rather looks as if whatever activity had been carried on on the Premises prior to 9 July 2004 was carried on without the benefit of appropriate licences, and so unlawfully.
61. Miss Johnson was asked in supplementary examination-in-chief about the figures of alleged income set out in the document produced by Mr. Stokes. She obviously felt embarrassed about those figures, for she volunteered as soon as she was asked about them "to relinquish", as she put it, her claim for loss of income from running the social club. She told me that she was prepared to do that because, although she had asked Mr. Stokes to produce the document included in the trial bundle, he had been vague as to where the justification for the figures had come from. In that event one might have thought that she would never have made a claim for loss of income in the first place, rather than have claimed loss of income at a rate of £11,580.75 per month. I have to say that I consider Miss Johnson's evidence on this point to defy credibility. It is this issue, taken with the other matters upon which I have commented, which have led me to the conclusion that I cannot rely upon the evidence of Miss Johnson on any disputed matter.
62. Miss Johnson told me in supplementary examination-in-chief that in fact her net income from running the social club was of the order of £4,000 to £6,000 per annum, which seems much more plausible than the pleaded rate of income.

Conclusion

63. In the result the claims of Miss Johnson against both Luxcool and Mr. Hussain all fail and the action is dismissed.