Case No: B2/2008/2653

Neutral Citation Number: [2009] EWCA Civ 601
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HER HONOUR JUDGE HAZEL MARSHALL QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 30th April 2009

Before:

LORD JUSTICE MOORE-BICK
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Between:

	MAYOR AND BURGESSES OF THE LONDON BOROUGH OF SOUTHWARK	

Appellant	
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HOLMES	

Respondent	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Moore-Bick:

1.	This is a renewed application by the defendant, Ms Holmes, for permission to appeal against the order made by HHJ Hazel Marshall QC giving judgment against her on a claim by Southwark Borough Council for outstanding mooring fees and sums due in respect of the supply of electricity.  

2.	The council is the owner of Greenland Pier situated in Limehouse Reach on the River Thames.  In 1999 Ms Holmes bought a pier, formerly the Charing Cross Pier, from the council with a view to developing it as a space for exhibitions and other events and she proposed to moor the pier at the Greenland Pier.  In about February 2000 Ms Holmes moored her pier off the Greenland Pier with the agreement of the council.  No written contract was made in respect of the arrangement, but during the period between February 2000 and April 2001 she paid £100 a week plus VAT by way of mooring fees.  After that date she withheld further payments, having got into a dispute with the council.  

3.	By a notice dated 1 October 2001 the council required her to remove the pier by March 2002.  A further notice in similar terms was served on 28 February 2002 giving her one month’s further notice to remove the pier.  That notice expired at around the beginning of April 2002.  Nonetheless, Ms Holmes failed to comply with that notice and eventually in June 2003 the council began proceedings seeking an injunction requiring her to remove the pier and also arrears of mooring fees in the sum then of £16,863.  

4.	Ms Holmes gave an undertaking to remove the pier by 30 November but in the event she failed to do so.  There were then further proceedings which led to a finding of contempt on her part, and the pier was finally removed in August 2006.  As from that time the proceedings were concerned only with the remaining money claim.  

5.	In the proceedings Ms Holmes made various counterclaims against the council, including a claim for damages said to have been caused to the pier by the defective state of the mooring, in particular the piles to which the pier was moored.  However, she failed to comply with directions for the conduct of the proceedings and that led to her counterclaim being struck out.  Nonetheless, it was accepted at the trial that insofar as her complaints, if substantiated, provided a defence to the council’s claim, she could still rely on them.  The judge identified five main issues for decision: (1) When was any agreement made between the council and Ms Holmes? (2) What was the nature of that agreement? (3) Was it validly terminated by the council.  (4) What sums were due in respect of the mooring fees and other charges? (5) What amount, if any, was Ms Holmes entitled to deduct by way of set off?

6.	The judge considered the history of the dealings between the council and Ms Holmes.  She held that the council had agreed in February 2000 to grant Ms Holmes an informal licence to moor her pier off Greenland Pier on a temporary basis – that is, until about Easter the same year – rather than an indefinite basis at the rate of £100 a week and additional charges for utilities.  The agreement was put into affect by the informal grant of what might be called a rolling monthly licence which could be determined on reasonable notice. The judge held that three months’ notice was reasonable and that at the expiry of that period Ms Holmes became a trespasser.  The judge held that the council’s notice of 28 February 2002 to remove the pier was effective to terminate Ms Holmes licence, since it had not sought to enforce the notice in less than three months.  Accordingly, the council was entitled to take steps at a later date to make her comply with it even though it had not done so as soon as the period of notice expired.  She held that there was no agreement to extend the licence and no estoppel had been created preventing the council from relying on its notice.

7.	The judge held that Ms Holmes was liable to the council for the amount claimed in respect of mooring fees and the supply of electricity.  She dismissed Ms Holmes’ claim for damages for providing an unsafe mooring on the grounds that the original agreement was intended to endure for a period of only three months or thereabouts and that the implied warranty of safety extended only for that limited period.  Finally, the judge ordered Ms Holmes to pay the council’s costs and to pay £25,000 on account of those costs by 13 October 2008.

8.	Although there are seven bullet points in Ms Holmes grounds of appeal, they do in fact contain ten separate points which I will consider in turn.  The first is that the judge failed to consider the evidence relating to the allegation that the mooring was unsafe.  The judge did in fact consider that evidence, at least to some extent, because in paragraph 66 of her judgment she made findings about the failure of various piles between February and June 2003.  More importantly, however, she found that the original agreement was for a limited period of three months and she held that in the light of that the implied warranty of safety did not as a matter of law continue beyond the end of that period.  In my view that was a perfectly reasonable conclusion for the judge to have reached on the material before her, since it reflected her findings of fact in relation to the exchanges between Ms Holmes and the council and the contract to which they gave rise.  The result is however that the council was not liable for the safety of the mooring at the time the piles failed.  

9.	The next complaint is that the judge failed to set off against Ms Holmes’ liability various fees that the council collected from third parties.  I am afraid I can see no basis for the argument that Ms Holmes was entitled to set off against her liabilities for mooring fees money that the council had collected from third parties, on whatever basis that had occurred.  In any event, as I have already observed, her counterclaim seeking to raise the issue had been struck out and this was not a matter which could be relied on as a pure defence to the council’s claim, unlike the claim relating to the safety of the mooring.

10.	The next allegation is that the judge refused to allow Ms Holmes an adjournment in order to obtain legal aid.  I am not sure that I fully understand the basis for this allegation, but a decision of that kind which involves the management of proceedings is one with which this court is most reluctant to interfere.  More importantly, however, if a decision of that kind is to be challenged it must be challenged promptly, so that if the judge’s decision is held to have been wrong, time and expense is not wasted by continuing with a trial on a false basis.  There was no such appeal in this case and I can see no reason to think that an appeal on this ground now would have any prospects of success.

11.	The next point taken by Ms Holmes is that the trial was heard by HHJ Marshall QC instead of HHJ Dean QC, before whom it was originally listed.  I am afraid there is nothing in this point.  Litigants cannot choose their judges.  If Judge Marshall had heard procedural applications in the case it was good listing practice for her to hear the trial.  

12.	The next matter is that HHJ Marshall failed to give both parties the same consideration.  This, it seems to me, amounts to a complaint that the judge conducted the trial unfairly.  I have to say that nothing has been put before me which begins to support that allegation.  

13.	The next point is that Judge Marshall in some way forced Ms Holmes to give an undertaking in lieu of the injunction being sought by the council.  Ms Holmes did give an undertaking, but that was in October 2005 and related to moving the pier.  I have seen nothing in the papers to suggest that any improper pressure was applied to Ms Holmes to give that undertaking, but in any event it is not one which arises out of the judgment under appeal.  Although the existence of the undertaking given is referred to in the preamble to Judge Marshall’s order, it is irrelevant to the substantive order made at the conclusion of the trial which is the only subject of any potential appeal.  There is also a complaint that the judge prevented Ms Holmes from settling the case but I have to say that I do not understand that complaint or how it can be a ground of appeal.  

14.	The next point taken by Ms Holmes is that the judge failed to give proper consideration to the credibility of the council’s witnesses, some of whom, it is said, had been dismissed for misconduct of one kind or another in relation to the pier.  One only has to read the judgment to see that the judge gave careful consideration to the credibility of all the witnesses, including Ms Holmes herself.  She did address the matters that Ms Holmes put forward as grounds for challenging the credibility of certain of the council’s witnesses but, having considered them, she rejected them.  It is one of the important functions of a trial judge to assess the credibility of the witnesses, but I can see no grounds whatever for saying that the judge fell short in that task.  I do understand that Ms Holmes considers that the view the judge took of the council’s witnesses was incorrect, but a judge who has seen the witnesses and heard them give their evidence is infinitely better placed than this court to decide questions of that kind, and I can see no prospect of an appeal succeeding on that ground in a case of this kind.

15.	The next point is that the judge failed to give Ms Holmes sufficient time to make a payment on account of costs.  The order was made on 15 October and required the payment of £25,000 on account by 30 October, that is, 15 days later.  It is usual to allow 14 days for payment of a sum of this kind unless specific reasons are put before the court for allowing a longer time.  In any event, following the making of the order payment was not made in time, but as far as I am aware it has not been suggested that untoward consequences have followed which would not have followed if the judge had given, for example, 21 or 28 days or even somewhat longer for payment.  It does not seem to me therefore that there are real grounds for seeking to appeal against that part of the order.  

16.	Finally, Ms Holmes submits that her counterclaim, which was struck out for failing to comply with the “unless” order, should be reinstated to enable her to argue her case in relation to the safety of the mooring.  I am afraid this court has no power simply to reinstate a statement of case that has been struck out pursuant to an “unless” order.  The only remedies, as to which I believe Ms Holmes was advised at the time, were either to appeal against the order itself or to apply to the court which made it for relief from the sanction.  In fact she did take those steps, or one of them, at the time, but her application failed.  These matters were pointed out by Kitchen J in May 2008 when he refused permission to appeal against a related order and the point was raised before him.  I am afraid it is simply not possible for me to deal with this matter at this stage.  

17.	For all these reasons it will become apparent that in my view there is no prospect of a successful appeal in this case, and therefore permission to appeal must be refused. 

Order: Application granted