IN THE COURT OF
APPEAL Appeal No: B5/2010/2396
(CIVIL DIVISION)
B E T W E E N
(1) JO GAVIN (now JO FLORES)
(2) CHANTAL CRACY
Appellants
-and-
COMMUNITY HOUSING
ASSOCIATION
LIMITED
Respondent
ADVICE
Introduction
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:
1(2)
(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
Liability
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%.
Quantum
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.
Costs
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.
Conclusion
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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