Monday, 25 February 2013


IN THE COURT OF APPEAL Appeal No: B5/2010/2396

1. In this matter I am asked to advise on the merits of the appeal with a view to ascertaining what further work should be authorised by the Bar Pro Bono Unit. I was authorised to have a conference or conferences to the extent that this was necessary to prepare the advice. I have been provided with 5 boxes of papers, which I have read, albeit some files in greater detail than others as there is a considerable amount of duplication in the papers. I have spoken to the client by telephone, briefly, twice, but did not regard any conference as necessary as this appeal is an appeal on a point of law.

Parties and leases
2. Jo Flores, formerly Jo Gavin, also known as Mary Flores, or to give her name in full Mary Josofar Valdivieso Fortuno Flores is the First Appellant. I shall refer to her as “Ms Flores” throughout this advice. The Second Appellant is the former business

partner of Ms Flores. Ms Flores also advised me by telephone that Ms Cracy is also her former girlfriend, and so these proceedings have not only caused Ms Flores financial loss and distress, but, also her relationship. Ms Cracy has played no part in the appeal and is no longer speaking to Ms Flores.

3. On 8 June 2000 Ms Flores was granted a 6 year lease of the ground floor and basement of premises at 104 Cromer Street. The said premises was named “Scarlet Maguire” by the Appellants and is so described throughout this advice. The Respondent was the lessor of the premises. The initial rent was £5,500 per annum and the review date was 25 March 2004. The definition of the demised premises included:

(a) the internal plaster covering the exterior and interior loadbearing walls
(b) all non-loadbearing walls
(c) the coverings of the ceilings
(d) the covering of the floors and the boards and screed of such floors
(e) all shop fronts and display cases all fascias all windows and window frames all doors and door frames
(f) all conduits within and exclusively serving the Demised Premises up to the point of connection with the common or public system.
(g) all fixtures and fittings and plant equipment and machinery in the nature of the Landlord’s fixtures including if applicable all escalators all heating air conditioning and ventilating equipment and all electrical and mechanical installations and other plant equipment and machinery within and exclusively serving the Demised Premises

(h) all sprinkler systems and fire detention and prevention equipment fire fighting equipment and hoses within the Demised Premises
(i) the toilet accommodation within the Demised Premises including all sanitary equipment and other apparatus therein
(j) all additions alterations and improvements to the Demised Premises made at any time.

4. On 17 March 2005 a lease was also granted by the Respondent to the Appellants of premises consisting of the basement and ground floor of 106-108 Cromer Street, which the Appellants called “Spaceshift” and which is referred to as such throughout this advice. The rent was £9000 per annum with a review date of 7 April 2009. The lease is in very similar terms to that of the Scarlet Maguire lease. However, there are some differences as noted by the Appellant in the closing submissions and recorded by the Judge at Paragraphs 4 to 6 of his Judgment of 22 September 2010 [AB71]. The definition of the demised premises is precisely that set out above.

5. During the course of the Appellants occupation of the premises a number of leaks occurred. The details of the various leaks are set out in the Judgment of HHJ Cowell dated 9 September 2010 and so are not summarised herein. These leaks caused damage and loss of business. In particular it was necessary for the Appellants to cancel exhibitions as the premises were in no fit state to hold art exhibitions and were unable to proceed with the project to assist young people. The details of the leaks and damage caused are set out below.

Procedural History.
6. On 29 October 2008 the Respondent purported to forfeit the leases, by peaceable re-entry, on grounds of non-payment of rent. An interim injunction was granted by Wilkie J, on 4 November 2008, requiring the Respondent to permit the Appellants to re-enter and remain in the premises [AB147-150]. On 20 November 2008 Christopher Clarke J gave direction for the progress of the matter and accepted cross undertakings from the parties [151-155].

7. In accordance with directions given by the Learned Judge, Particulars of Claim were served on 4 December 2008 [AB156-169] and was settled by Counsel. On 4 February 2009 a Defence and Counterclaim was filed [AB171-192]. A Reply and Defence to Counterclaim was filed on 15 July 2009 and was also settled by Counsel. An application to amend the Particulars of Claim was allowed in part.

8. The trial took place between 12 July 2010 to 23 July 2010. Judgment was given on 9 September 2010 [AB39-63] but it transpired that certain submissions were not before the Learned Judge and so he gave a further judgment on liability on 22 September 2010 [AB69-75]. Judgment on damages and mean profits was given on 20 September 2009 [AB64-68].

9. Ms Flores lodged an application for permission to appeal based upon her Grounds [AB17-20]. Jacob L.J. refused permission on 20 February 2012 and noted that the Appellants would do well to seek legal advice, in particular from the Bar Pro Bono Unit, if they sought to renew. A renewed application was made and Ward L.J. on 10 May 2012 made a series of directions. He repeated the advice to the Appellants to

seek assistance from the Bar Pro Bono Unit and noted that the parties should consider mediation.

10. The Appellant did approach the Bar Pro Bono Unit and Mr. Luba Q.C. advised indicating that the papers needed to be put into order and that Amended Grounds of Appeal needed to be prepared. Upon confirmation that the scope of his work had been increased he lodged a fresh appeal bundle and draft Amended Grounds of Appeal [AB24-25].

11. The renewed hearing then came on before Ward L.J. on 4 December 2012 and Mr. Luba Q.C. appeared on behalf of Ms. Flores. Permission was granted on all of the Amended Grounds of Appeal except those relating to relief from forfeiture and the stay.

Merits of the original Grounds of Appeal
12. During my short telephone conference with Ms. Flores I discussed the original Grounds of Appeal. I explained that permission had only been granted in relation to the Amended Grounds and advised that my view was that there were no prospects of success in relation to those Grounds of Appeal. In light of the issues raised in Mr. Luba’s note to the Bar Pro Bono Unit, I had anticipated that Ms. Flores might wish to pursue the original Grounds of Appeal. However, I am pleased to note that she told me that she entirely agreed with the approach adopted by Mr. Luba Q.C. at the permission hearing. She clearly appreciated that she could not proceed with her original Grounds of Appeal. That is a realistic and sensible decision and, in light of it,

little purpose is served by giving any further consideration to the original Grounds of Appeal.

The Amended Grounds of Appeal
13. Before turning to the Amended Grounds of Appeal it is worth setting out some well- established fundamental principles. There is no law against letting a tumbledown house Cavalier v Pope [1906] A.C. 428. Nor can any warranty be implied as to the condition of the premises, ‘caveat lessee’ in respect of which see Southwark London Borough Council v Mills [2001] 1 A.C. 1.

14. The Learned Judge placed substantial weight on the case of Duke of Westminster v Guild [1985] Q.B. 688. In that case, at page 701, Slade L.J. said as follows:

“There is a general principle established by such cases as Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472 and Cockburn v. Smith [1924] 2 K.B. 119 which is summarised, in our opinion accurately, in Woodfall, Landlord and Tenant, 28th ed. (1978), vol. 1, para. 1-1469, p. 621:
"Where the lessor retains in his possession and control something ancillary to the premises demised, such as a roof or staircase, the maintenance of which in proper repair is necessary for the protection of the demised premises or the safe enjoyment of them by the tenant, the lessor is under an obligation to take reasonable care that the premises retained in his occupation are not in such a condition as to cause damage to the tenant or to the premises demised."
In Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472 the plaintiffs were tenants of a floor in a building of which the defendants were the landlords. A rainwater gutter in the roof became stopped up and the defendants failed to clear it out for a few days after receiving notice of the stoppage. They were held to be in breach of a duty of care to the plaintiffs and liable for the damage done. In Cockburn v. Smith [1924] 2 K.B. 119 the facts were similar and the defendant landlords were held liable to the tenant for damage suffered by her as a result of defects in the guttering of the roof of the building of which the landlord retained control. Scrutton L.J. considered, at p. 133, that the landlord's duty was based on "that modified doctrine of Rylands v. Fletcher (1868) L.R. 3 H.L. 330 which is applicable where he retains in his control an artificial construction which becomes a source of danger to his tenant." Bankes and Sargant L.JJ. preferred not to decide whether the relevant duty arose out of a contract
between the parties or whether it was an instance of the duty imposed by law upon an occupier of premises to take reasonable care that the condition of his premises does not cause damage: see [1924] 2 K.B. 119 , 130 and 134. But they expressed no doubt that the relevant duty existed.”
15. The first issue raised under the Amended Grounds of Appeal is the question of whether the Learned Judge erred in law in directing that the landlord’s liability for damage arising from defects in another part of the same building as the demised premises, under the ownership and control of the landlord, arose only after notice and a reasonable opportunity to remedy the defect.

16. The principle that a landlord was only liable for a breach of a repairing covenant when he was given notice of it was established in O'Brien v Robinson [1973] AC 912, [1973] 1 All ER 583, HL. However, this rule is an exception to the general rule and the general rule is that a covenant to keep premises in repair is an obligation to keep in repair at all times, not when notice is given British Telecom plc v Sun Life Assurance Society plc [1995] 2 EGLR 44.

17. In British Telecom v Sun Life Nourse L.J. reviewed the authorities. He cited with approval Melles & Co v Holme [1918] 2 K.B. 100 as an example if the general rule. In Melles & Co v Holme Salter J said, at p.104:

“It is said that the plaintiffs cannot enforce that covenant because they gave no notice of the breach. In some cases no doubt there must be read into a covenant by a landlord to repair a condition that the tenant must give him notice of the want of repair before he can be entitled to complain of it. The principle of that rule is thus laid down by Bramwell B. in Makin v. Watkinson (1): "When a thing is in the knowledge of the plaintiff, but cannot be in the knowledge of the defendant, but the defendant can only guess or speculate about the matter, then notice is necessary." This was also put very clearly by Collins M.R. in Tredway v. Machin (2): "That rule rests upon the principle that the landlord is not the occupier of the premises, and has no means of knowing what is the condition of the premises unless he is told, because he has no right of access to the demised premises, whereas the occupier has the best means of knowing of any want of repair." To justify the Court in reading into a covenant a condition
which is not there, there must be very strong ground for their doing so. Here there are no such grounds. The roof was in the possession and control of the defendants, not of the plaintiffs. Therefore there is no justification for saying that they cannot enforce the covenant in the absence of notice.”
18. The obligation to carry out repairs pursuant to a repairing covenant is an obligation to carry out those repairs within a reasonable time of notice being given Morris v Liverpool City Council (1987) 20 HLR 498, [1988] 1 EGLR 47, CA and McGreal v Wake (1983) 13 HLR 107, [1984] 1 EGLR 42, CA . In McGreal v Wake Sir John Donaldson noted that the Court considered that it was unfortunate that the House of Lords had felt obliged to conclude that notice was required in O’Brien v Robinson. The principle that repairs are only required within a reasonable period of time of notice being given, can have no application to a case in which there is no obligation to give notice.

19. Accordingly, I am of the view that the Learned Judge did err in law in concluding, at Paragraphs 18 to 21of his Judgment [AB47-49], that liability was dependent upon notice and a reasonable opportunity to repair it; the decision on this point of law was the basis of most of the subsequent findings of the Learned Judge. In reaching that conclusion he cited a paragraph from the highly respected Clerk & Lindsell on Torts, 19th edition, which refers to an obligation arising only on proof of negligence. However, the Learned Judge did not appear to appreciate that that paragraph was not considering contractual obligations, nor was it the chapter on nuisance. In my view, the Learned Judge took that paragraph out of context and clearly did not consider the relevant authorities on point. Accordingly, I am of the view that the prospects of success on this point of law are some 60%.

20. This will be central to the claim for damage arising from leaks from the waste stack pipes which were retained by the Respondent [AB42 at Paragraph 8 Judgment] and those from the electricity room which was not within the demise, Paragraph 54 Judgment [AB61]. In my view, were first Ground of Appeal to succeed then it would follow that Ms. Flores would succeed in relation to these aspects of the case.

21. The Learned Judge also concluded that the pavement lights with the glass bricks were not demised to the Appellants, and were retained by the Respondent, [AB58 Paragraph 46]. Accordingly, were this the only basis on which she was unsuccessful, it should mean that Ms. Flores would succeed in relation to this aspect of the case. However, in considering the pavement lights the Learned Judge concluded that the Defendant’s case on caveat lessee was correct [AB59 Paragraph 49] and so it is difficult to see how Ms. Flores could succeed in relation to the part of the case which included the glass bricks without also appealing against the finding of caveat lessee.

22. To turn to the question of whether I am of the view that the Learned Judge was wrong in relation to caveat lessee, it is necessary to consider the nature of the principle. In Southwark v Mills, at page 11, Lord Hoffman set out the principle in some detail:

There is however another feature of the covenant which presents the appellants with a much greater difficulty. It is prospective in its nature: see Norton on Deeds , 2nd ed (1928), pp 612-613. It is a covenant that the tenant's lawful possession will not be interfered with by the landlord or anyone claiming under him. The covenant does not apply to things done before the grant of the tenancy, even though they may have continuing consequences for the tenant. Thus in Anderson v Oppenheimer (1880) 5 QBD 602 a pipe in an office building in the City of London burst and water from a cistern installed by the landlord in the roof flooded the premises of the tenant of the ground floor. The Court of Appeal held that although the escape of water was a consequence of the maintenance of the cistern and water supply by the landlord, it was not a breach of the covenant for quiet enjoyment. It did not constitute an act or omission by the landlord or anyone lawfully claiming through him after the lease had been granted. The water system was there when the tenant took his lease and he had to take the building as he found it. Similarly in Spoor v Green (1874) LR 9 Ex 99 the
plaintiff bought land and built houses upon it. The houses were damaged by subsidence caused by underground mining which had taken place before the sale. The Court of Exchequer held that there was no breach of the covenant for quiet enjoyment which had been given by the vendor. Cleasby B said, at p 108:
"it seems to me impossible to say that there is a breach of covenant for quiet enjoyment by reason of the subsidence of the house in consequence of the previous removal of the coal. This subsidence of the house was a necessary consequence of the condition of the property bought by the plaintiff ..."
The tenant takes the property not only in the physical condition in which he finds it but also subject to the uses which the parties must have contemplated would be made of the parts retained by the landlord. Anderson v Oppenheimer 5 QBD 602 , in which it was contemplated that the cistern would be used to contain water, demonstrates this proposition. An even more pertinent case is Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476 . The plaintiffs owned a hotel in Christchurch, New Zealand, next to the premises in which the defendants operated a printing press. They made an agreement under which the defendants would rebuild their premises and grant a lease of the upper floors to the plaintiffs for use as additional hotel *12 bedrooms. Unfortunately the noise and vibrations of the press beneath caused substantial inconvenience to the occupants of the bedrooms. The plaintiffs claimed an injunction to restrain the defendants from working their press. They said that the defendants knew that they intended to use the premises as bedrooms and were under an implied obligation not to interfere with their convenient use. But Lord Loreburn LC, giving the advice of the Privy Council, said that the plaintiffs also knew that the defendants intended to use their premises for printing. He went on, at p 481:
"When it is a question of what shall be implied from the contract, it is proper to ascertain what in fact was the purpose, or what were the purposes, to which both intended the land to be put, and having found that, both should be held to all that was implied in this common intention ... if it be true that neither has done or asks to do anything which was not contemplated by both, neither can have any right against the other."
23. In the present case in dealing with this issue all the Learned Judge said was that he agreed with the submissions of the Respondent. Those submissions are in the Skeleton Argument [AB266-300] in which the submissions on caveat lessee were set out at [AB279-284 and 289] and Closing Submissions [AB301-331] at [AB310-312 and 325-327]. The argument was that any defect in the pavement lights (or glass bricks) existed prior to the grant of the lease and so “there was no liability in nuisance for any damage caused by water ingress from the pavement lights” [AB325-326].

24. It is my view that the Learned Judge erred in his conclusions on this issue. It must be noted that the passage I cite above from Lord Hoffman’s speech was considering an argument that the covenant of quiet enjoyment gave rise to an obligation to improve premises by installing sound insulation to prevent noise nuisance arising from ordinary use of premises. Lord Hoffman considered the principle in Duke of Westminster v Guild and did not perceive any difficult with it. The proper comparison with the present case would be if the Appellants had contended that the very existence of the pavement lights was wrong, but that was not their case. The Appellants case was that glass bricks had not been sealed properly and was causing leaks.

25. I am reinforced in this view by consideration of the authority cited by Lord Hoffman, Anderson v Oppenheimer (1880) 5 Q.B.D. 602 in which the Court of Appeal affirmed the judgment of Field J rejecting the claim on the basis that the covenant of quiet enjoyment was prospective and so could not assist that tenant in respect of a burst water tank provided for the benefit of those in the building. However, it was noted that the jury had found there was no negligence in that case and it appears implicit that a cause of action could have arisen in tort if the tank had been negligently installed or had there been negligence in maintaining it. In the present case the argument was that the failure to seal was negligence in delaying carrying out repairs.

26. Although, I do consider that there are merits to this argument, there are sensible counter arguments as set out in the submissions of Miss Bhaloo Q.C. It is entirely possible that an application to amend to add this ground may be refused and may ultimately fail. However, on balance I am of the view that the prospects of success are 55% and that an amendment to add this as a Ground of Appeal should be made.

27. This is an appropriate point to deal with other aspects of the claim. I am firmly of the view that the Respondent had an entirely good defence to the parts of the claim on the basis of caveat lessee. These included the fact that there was no ventilation in the premises, no shutters, no flooring, and no heating. Each of these claims are claims for improvements to which the Appellants were not entitled and which the Respondent had no obligation to make. No appeal against these items is before the Court and any such attempt to appeal would, in my view, be hopeless. Equally, with regard to the flood on 24 June 2005 I do not consider that any flaw exists in the decision of the Learned Judge at Paragraph 44 of his Judgment [AB57].

28. To turn to Ground 2 of the Amended Grounds of Appeal, it is said that there was a correlative implied obligation on the landlord to keep in repair those parts of the building which the landlord retained in its ownership and control. That principle is set out in ‘Dilapidations: The Modern Law and Practice’ by Nicholas Dowding Q.C. and others, Sweet & Maxwell 4th edition. As noted in Paragraph 19-16 of ‘Dilapidations’ this obligation should only be implied where performance of the express obligation is impossible without it. In Barrett v Lounova (1982) Ltd [1990] 1 Q.B. 348 the Court of Appeal implied an obligation to repair the exterior in circumstances where the tenant had covenanted to repair the interior.

29. However, as the authors of ‘Dilapidations’ note it is difficult to see that the covenant to repair the interior could not be performed without the implied obligation and so the tenancy did not appear to be unworkable without the term. Further, those cases where correlative obligations have been implied are cases in which the tenant had agreed to pay for the work as noted by Sir John Vinelott in Adami v Lincoln Grange Management Ltd [1998]1 E.G.L.R. 58 at 60M.

30. I have to say that, in common with the authors of ‘Dilapidations’ I have some considerable doubt about whether Barrett v Lounova was correctly decided. It is certainly a case which is strongly in favour of the Appellants, but, I am concerned that proper scrutiny of this decision in the light of the applicable principles would be such that the Court of Appeal would be anxious to distinguish it. However, it is a ground on which there is existing authority in favour of the Appellants and Ward L.J. has granted permission to proceed with it. I consider the prospects of success to be some 55% in light of the existing authorities, but, do sound a note of real of caution about being overly optimistic about this ground.

31. The third of the Amended Grounds of Appeal concern the Learned Judge’s finding that the conditions in the premises did not give rise to the ‘cesser of rent’ clause, see Paragraph 13 Judgment [AB44]. The clause came into effect if the demised premises was destroyed or damaged “so as to be unfit for use”. In my view, there is a strong case for this Ground of Appeal succeeding on the basis of the findings of fact of the Learned Judge throughout his Judgment. I assess the prospects of success at 60%.

32. Equally, in relation to the matters raised under Grounds 6 and 7 I am of the view that there is a good prospect of the Learned Judge finding that the leases were not lawfully forfeit and that there was liability to the Respondent for mesne profits. As it seems to me that these matters obviously arise from my other conclusions there is little purpose in considering this in more detail. I am also of the view that the prospects of success are 60%.

33. Paragraphs 4 and 5 of the Amended Grounds of Appeal address the question of quantum and the fact that the Learned Judge seriously underestimated quantum. In my view this is plainly correct and stands a very good prospect of success, some 65%.

34. However, it is one thing to consider that the £100 award was plainly too low, (even without the further periods of time in respect of which a claim could be made were some of the other grounds to succeed) and quite another to achieve the expectations of the Appellants. Part of the role of a pro-bono representative is to point out the problems in a case in order that the client can approach the litigation with realistic expectations. I do not know whether Ms Flores now accepts that the Schedule of Loss [AB166-169] is entirely unrealistic, but, in my view, that is the position.

35. The Schedule includes, for example, a claim for “£1.5 Billion” in respect of lost membership and “£400 Millions” from Spaceshift and “£1.9 Billion Total Potential Opportunity” lost. I entirely appreciate that Ms Flores was very optimistic about the success of the ventures and also appreciate that she had a very detailed business plan, but, I do not see any prospect whatsoever of recovering sums in those regions. In my view the evidence simply does not support those sums.

36. Further, the measure of damages for disrepair by a landlord is that which would have put the lessee in the position he would have been in had there been no breach of the repairing covenant Hill & Redman Law of Landlord & Tenant Chapter 10 Paragraph [3728]. Wallace v Manchester City Council (1998) 30 H.L.R. 1111, a case concerning residential accommodation, is authority for the proposition that damages will be assessed by reference to the rent paid. If this were a factor then it can be noted that

the rent on each of the premises was relatively low and so any damages would be likely to be in proportion to those rents.

37. In Woodfall: Landlord & Tenant it is noted:

“11.34 An action for damages for breach of covenant is a contractual claim. The fundamental principle governing the award of damages for breach of contract is that the injured party must be placed, so far as money can do it, in the position in which he would have been if the contract had been performed. However, an award of damages is also governed by the rules relating to remoteness of damage. A contract-breaker is not liable to compensate the injured party for all damage which he suffers as a result of the breach. He is liable to compensate the injured party for (1) such damage as may fairly and reasonably be considered as arising naturally, i.e. according to the usual course of things, from the breach of contract itself and (2) where at the date of the contract both parties know of special circumstances, such additional damage as may naturally flow from a breach of contract under these special circumstances Hadley v Baxendale (1854) 9 Exch.341
38. In my view, there is an insurmountable problem with regard to the sums claimed by the Appellants. The loss of business is far too remote. It does not seem to me possible to argue that the lessor assumed liability for the success of a new business venture. Further still, it may well be said that there was a failure to mitigate loss.

39. Accordingly, I think that it is imperative that Ms. Flores appreciates that success in the context of this appeal is likely to involve, at the very best, an order setting aside the costs award below and awarding her what she will regard as a modest sum of damages (when compared with the above figures). There is no prospect of her achieving an award anywhere near the region of that initially sought. The very best case scenario would be damages akin to the rental value during the period the premises could not be occupied.

40. The usual principle in forfeiture cases is that costs are awarded on an indemnity basis, although the authors of some of the major texts, see Hill & Redman have queried the extent to which that practice is consistent with the modern approach to costs. Obviously, if the appeal succeeds to the extent that the lease was not forfeit then the costs order will fall. If the appeal fails and the argument regarding costs is freestanding then there are prospects of the argument succeeding. This is a very important point of principle which will have a widespread impact on forfeiture cases. I do consider that the prospects of success are 60% and that it is worth pursuing this Amended Ground of Appeal.

Further Steps
41. I understand that this matter has now been fixed for an appeal hearing on 1-2 May 2013 and that Mr. Luba’s dates to avoid have been taken into account, although he is not currently authorised to carry out further work. I understand that that Mr. Luba Q.C. is prepared to continue to act in this matter. I also am advised that the Court of Appeal have advised that the appeal bundle needs to be lodged by 20 March 2013.

42. In my view this matter is one which justifies continued assistance through the Bar Pro Bono Unit. I am of the view that authorisation should be given for a silk (Mr. Luba Q.C.) and for a junior of 5-10 years call in order that the following steps can be completed:
(1) Arranging for the appeal bundle to be finalised and lodged
(2) Drafting a Skeleton Argument
(3) Appearing at the Appeal.

43. I am also of the view that serious consideration should be given to utilising the Court of Appeal mediation scheme as suggested by Ward L.J. I am of the view that the Respondent may be anxious to mediate in preference to incurring the further cost of a substantive Court of Appeal case, which it risks losing. In my view there is no prospect of any mediation being successful unless Ms. Flores were represented. Accordingly, I consider that authorisation should be given for those representatives to assist Ms Flores at mediation, providing that Ms. Flores accepts my advice that she has no prospect of recovering the millions (or billions) she initially sought-if she maintains that she has such entitlement there is no prospect of mediation succeeding.

44. Finally, I should mention something about the papers in this case. As mentioned above there are 5 boxes of papers. Within those boxes are various files which include substantial duplication, as noted by the trial judge. In my view, the overwhelming majority of those papers are no longer relevant to this case. It is quite telling that during the course of this advice I was able to restrict my references to the appeal bundle complied by Mr. Luba Q.C. The approach of the Court of Appeal will be to accept the factual findings of HHJ Cowell and, generally, those factual findings favour the Appellants. Accordingly, very little purpose is served in referring to the old papers before the trial judge. The issues in this case are now focused upon the points of law and it is a poor use of time to continue to scrutinise the old papers.

45. If I can assist further please do not hesitate to contact me. I have not suggested that I should act in the appeal because, in light of Mr. Luba’s very generous offer to continue acting, there is little purpose in a senior junior being involved. However, if I can assist further please do not hesitate to contact me.

Kerry Bretherton
24 February 2013

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