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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Plender v Hyams [2001] EWCA Civ 2078 (21 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2078.html Cite as: [2001] EWCA Civ 2078

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE PARK)

		Royal Courts of Justice Strand London WC2 Friday, 21st December 2001

Friday, 21st December 2001

1. LORD JUSTICE PILL: This is a renewed application for permission to appeal. I refused permission on a consideration of the papers.
2. The dispute concerns the construction of a consent order made in proceedings ("the first action") which the applicant, Mr. Plender, had taken against the proposed respondent with respect to a studio flat at Number 8, Albert Studios, Albert Bridge Road, Battersea. The applicant has been the tenant of those premises. Mr. Hyams, the proposed respondent, is the landlord. The applicant has lived in the premises for many years and is a man of mature years.
3. The first action was heard by his Honour Judge Collins. On 27th April 2000 the judge made an order giving Mr. Hyams possession of the premises. The order stated:

"1. The Claimant [which in that action was the description of Mr. Hyams] do recover possession of 8 Albert Studios, Albert Bridge Road, London, SW11 from the Defendant by 27th July 2000.

2. There be judgment for the Claimant for £12,138.40 including interest after setting off damages of £5,879.50 on the counterclaim.

3. The defendant do pay mesne profits at the daily rate of £10.86 until possession".

4. Provision was also made for costs.
5. That order was the subject of an appeal to Park J. who, on 24th July 2001, gave judgment upholding the possession order. For the reasons stated in the judgment, Park J. reduced the amount of the money judgment.
6. In the first action, in which the now disputed consent order was made, issues arose as to the disrepair of the premises. The applicant's claim for damages in that action was dismissed upon undertakings being given. I do not propose to read the order in full. The defendant (that is, the proposed respondent to the present appeal) agreed to carry out works of repair and improvement set out in a schedule of works attached to the consent order. The applicant undertook to vacate the premises while the works were carried out. What amounts to a rent holiday was agreed by the defendant, the present application turning upon the construction of the rent abatement clause in the context of the undertakings and the order as a whole. The order also provided that the applicant's claim for specific performance be adjourned generally with liberty to restore, and also that there be liberty to apply generally as to implementation. By the undertaking, the specified works were to be completed on or before 31st July 1994, time being of the essence.
7. Both judgments in the present action are comprehensive in nature and, if I may say so, careful in approach. Some of the work has remained outstanding and Mr. Moraes, who appears for the applicant, has referred me to a Scott Schedule which shows that certain matters remain to be done. The premises have, however, for a very long time been habitable. The approach adopted by Park J. was that, from the time when the works had been completed to permit the applicant to return to the property, the undertaking not to claim rent was at an end.
8. Mr. Moraes has provided a long skeleton argument and has assisted the court with oral submissions. He submits that the consent order must be construed to allow for a suspension of rent while the works were carried out. The order does not consider degrees to which the work is complete. There was no need to construe the order so as to refer to the undertaking not to claim rent as covering only the period when the flat ceased to be habitable. The judge ought not to have implied a term to that effect. Even if the property, by the date found by Park J., was substantially in good repair, there were snagging works which remained to be done. The agreement did not restrict the rent-free period to a short one. The point is made in writing, in particular at paragraph 42 of the skeleton argument, and reference is made to the reasoning of the learned judge. Reasons are given why the term which Mr. Moraes submits was implied into the contract should not have been implied.
9. The judge's reasoning appears at page 12 of the judgment, and refers to the terms of the consent order:

"In my judgment, they linked the rent-free period to the period while the works were being carried out and Mr. Plender needed to be out of the premises. If that period extended after 31st July 1994, then so did the rent-free period.

"How long did that period extend on the facts of the case? In my judgment it extended until the works were completed, not necessarily in every final detail, but to an extent where the builders were not permanently in the premises and Mr. Plender could perfectly satisfactorily move back in. That stage was reached not later than early 1995. I repeat my reference to the judge's finding in the following terms: 'Since late 1994 or early 1995 at the very latest it has been possible for Mr. Plender to live a tolerable life in this property...'

"Giving to Mr. Plender the generous benefit of every non-fanciful doubt, I believe that his rent-free period ended not later than the end of February 1995. On that basis he certainly became liable to rent from 1st March 1995. I will vary the judge's figure to that extent."

10. Before expressing my conclusions, I refer to the fact that this is, as Mr. Moraes recognises, a second appeal, a subject which is considered in CPR Chapter 52.13: "(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal. (2) The Court of Appeal will not give permission unless it considers that--

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

11. Mr. Moraes submits that 52.13(2)(b) applies in this case. He relies on the fact that there was a partial success in the first appeal, but primarily on the fact that his case is a compelling one. He submits that the possession order complained of has a substantial effect upon the defendant. This appeal does not fall, he submits, within the mischief contemplated by the second appeal procedure, which is a new one introduced by the CPR. There are compelling reasons for the Court of Appeal to hear the case.
12. In refusing permission on paper, I stated that the judge was entitled to take the view of the consent order which he did. Having heard Mr. Moraes, I am still of that view. There is, in my judgment, considerable force in the judge's conclusion that the consent agreement as a whole contemplated a short rent-free period. The consent order must be read in the context of the then dealings between the parties.
13. Mr. Moraes has concentrated upon the need for a literal construction and the absence of any express limitation upon the rent-free period. Read in context, Park J. was, in my view, correct to hold that the period contemplated by the parties when the consent order was made with the assistance of solicitors was a short one and was to be provided on the basis which the learned judge adopted. The order did provide remedies for the applicant if work was not completed rapidly. Time was stated to be of the essence and there was liberty to apply for further relief.
14. It does not appear to me that the effect of the agreement was to give one party a rent-free period while any snagging work or work of the kind set out in the Scott schedule to which I have been referred remained outstanding. I can also find no compelling reason to give permission, even if there had been an arguable case that the consent order should be construed in a different way. There have been two thorough hearings of this case. The word "compelling" in 52.13(2)(b) does not, in my view, cover the circumstances of this case, even if points can be made that the consent order might be construed in a different way.
15. For the reasons I have given, this renewed application is refused.
ORDER: Application dismissed; taxation order for public funding purposes; order for possession remains outstanding. (ORDER NOT PART OF APPROVED JUDGMENT) __________