EVIDENCE, PLEADINGS, RE-OPENING CASES AND THE HIGH DUTY OF CARE OWED AT ORAL APPLICATIONS TO APPLY FOR PERMISSION TO APPEAL

This appears to be a day for cases relating to local authorities, disrepair and pleading points. In Uddin -v- London Borough of Southwark [2015] EWCA Civ 369 the Court of Appeal considered several issues relating to evidence, pleadings and the duties owed on oral applications for permission to appeal.

THE CASE

The claimant had succeeded at trial in obtaining damages for disrepair.  Permission to appeal was given on limited grounds. The first ground was that the judge should not have relied on various reports. The Court of Appeal held that the judge was entitled to rely on the reports and do the best he could with the available evidence.

KEY POINTS

• The fact that there was no directly pleaded case in relation to the existence of a damp course had not led to injustice. The defendant knew the case it had to meet.
• The judge was entitled to make amendments and corrections to his judgment, this furthered the overriding objective.
• There is a high standard on those seeking permission to appeal to set out all relevant matters.

THE PLEADING POINT

1. The next ground of appeal is that the particulars of claim did not plead a defective damp-proof course. That is quite correct. They did not. The question is what, if any, consequences flow from that. As Saville LJ pointed out in British Airways Pension Trustees Ltd v Sir Robert McAlpine and Sons Ltd [1994] 45 Con LR 81:

“The basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it. To my mind, it seems that in recent years there has been a tendency to forget this basic purpose and to seek particularisation even when it is not really required. This is not only costly in itself, but is calculated to lead to delay and to interlocutory battles in which the parties and the court pore over endless pages of pleadings to see whether or not some particular point has or has not been raised or answered when in truth each party knows perfectly well what case is being made by the other and is able properly to prepare to deal with it. Pleadings are not a game to be played at the expense of litigants, nor an end in themselves, but a means to the end and that end is to give each party a fair hearing.”

1. Much the same points were made by Lord Woolf MR in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at 792.
2. In this case, it is clear that the particulars of claim allege that the flat was badly affected by rising damp. In addition, paragraph 6.3 of the particulars of claim alleged:

“In about September 2009, the Defendant undertook extensive works to the premises to remedy the dampness. The works involved the removal of large sections of wall plaster in order to enable a new damp-proof course to be installed.”

1. The reference there was to a new damp-proof course rather than to the only damp-proof course that had ever been installed, but that may well have been an oblique reference to a previous defective damp-proof course.
2. But in addition, each party had the surveyors’ reports, which I have mentioned, included in the trial bundle, each of which concluded that there had been ineffective previous remedial measures.
3. In a supplementary skeleton argument prepared by Mr Nichol on behalf of Mr and Mrs Uddin on the second day of the trial, there was an explicit allegation that there had been no effective damp-proof course. The point was, therefore, before the judge.
4. Had Islington been in any doubt about the case that it was preparing to meet, it could have made a request for further information, but it never did. Miss Rai did not go so far as to submit that Islington were taken by surprise or indeed that there was additional evidence Islington would have wished to call if it had appreciated that the question of a defective damp-proof course was in issue.
5. What is engaged by this ground of appeal, in my judgment, is not whether the judge was wrong in law, but whether the decision of the court below was unjust because a serious procedural irregularity within the meaning of CPR Part 52.11(3)(b). In my judgment, there was no injustice.
6. The final ground of appeal is that the judge was wrong in allowing counsel for Mr and Mrs Uddin to make further submissions on receipt of the judge’s draft judgment, having said that no further submissions on the case would be heard.
7. The judge’s draft judgment concluded thus:

“Given the judgment of issues, the amount of documentary material and the limited time allowed for the trial, it may be that some of the factual matters in this draft judgment may be inaccurate, for example the date when certain repairs would be affected overlooked. Therefore, in addition to filing a schedule of typing errors by the date set out in the preface, the parties may by the same date file and serve a summary of omissions or inaccuracies they have identified. This is not, however, an invitation to re-argue the case or argue that the conclusions are wrong unless based on erroneous material.”

1. 35. In his draft judgment, the judge had indicated that he would award damages for disrepair attributable to damp from 30 November 2005. In his comments on the draft, Mr Nichol queried that date and pointed out to the judge that the draft judgment had also accepted that Islington was on notice of the damp from an earlier date in consequence of the two surveyors’ reports in May and July 2004 respectively. He therefore said that the correct date for the award to start was October 2004 rather than November 2005. The judge thereupon altered the judgment to award damages from 1 October 2004, but Miss Rai for Islington reminded him that the Uddins had not moved in until the 18th, so the judgment was amended once more. In short, both parties were able to make submissions on the correct date from which the damages should run.
2. There is no doubt that until judgment has been handed down and an order made, a judge has a power to change his mind: Robinson v Fernsby[2003] EWCA Civ 1820, [2004] WTLR 257 at 91. The usual question is whether the judge was justified in doing so in all the circumstances of the case. Although it was once thought that this power should be exercised only in exceptional circumstances, that is no longer the case: Re: L-B (Children) [2013] UKSC 8, [2013] 1 WLR 634 at 29.
3. The overriding consideration is to deal with the case justly. That may include a consideration whether any party has already taken action on the basis of the draft judgment. Since the draft judgment in this case, like many such drafts, contains an instruction that no action is to be taken except internally in response to the draft before judgment has been formally pronounced, that is unlikely. If the judge is persuaded by short submissions, as in this case, that he has made a mistake, then the right thing to do is to correct the draft.
4. It is notable that there is no substantive appeal against the date the judge chose as the beginning of the period for which he awarded damages. The only complaint is the process by which he reached his ultimate decision. I do not consider that the judge can be faulted in this respect.
5. Accordingly, despite the tenacious way in which Miss Rai put forward her grounds of appeal, I do not consider that she has demonstrated either that the judge was wrong or that any injustice has resulted.
6. I would therefore dismiss the appeal.

THE DUTIES OWED ON AN APPLICATION FOR PERMISSION TO APPEAL

In a short supplementary judgment Lord Justice Pitchford made some important observations in relation to the duties owed when making an application for permission to appeal.

1. LORD JUSTICE PITCHFORD: I also agree and wish only to add some observations concerning the need for scrupulous care when making an oral renewal of an application for permission to appeal to the full court.
2. Practice Direction 52C at paragraph 16 sets out the advocate’s duty at least four days before the hearing of the oral renewal for a brief written statement informing the court and the Respondent of the points which are to be raised at the hearing and setting out the reasons why permission should be granted, notwithstanding the reasons given for the refusal of permission.
3. In the present appeal, on 15 July 2014 Sir Stanley Burnton set out in some detail in writing his reasons for refusing permission to appeal, notwithstanding no advocate’s statement was filed with the court, a fact which McFarlane LJ established at the commencement of the oral hearing on 14 October.
4. In the course of the exchanges between counsel and McFarlane LJ, he posed the understandable question whether or not the existence of a damp-proof course was a prominent issue in the trial. Miss Rai replied not only that it was not a prominent issue, but that it was not an issue at all.
5. McFarlane LJ posed the question whether the first time that the issue had popped up was in the judgment. Miss Rai replied yes. In fact, in the skeleton argument submitted by Miss Rai to the judge below on 3 January 2014, the issue of causation of rising damp had been specifically raised by her at paragraph 52(v) in which she said:

“Rising damp can only be disrepair if there is, for instance, a failure in the damp-proof course…”

1. Realising that issue was taken in this respect, Mr Nichol on behalf of the Claimant submitted a supplemental skeleton argument dated 6 January 2014 and served it on Miss Rai. At paragraph 1, he wrote:

“This supplement is to address one issue. It has been argued on behalf of the Defendant that it is not liable for the existence of rising damp at the property because there is no disrepair.”

At paragraph 2, he asserted:

“The most important and the most obvious point is that damp should not be rising in the basement walls unless the existing damp-proof course is defective (and there is a DPC according to the e-mail and certificates at B46, B8 and B9). Ergo, there is disrepair…”

1. Speaking for myself, had those documents been drawn to the attention of McFarlane LJ, the renewed oral application may have taken a different turn.