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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 >> Balogun v Hassan [2001] EWCA Civ 1343 (9 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1343.html Cite as: [2001] EWCA Civ 1343

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Cooke)

		Royal Courts of Justice Strand London WC2
		Monday, 9th July 2001

1. LORD JUSTICE THORPE:The applicant, Anita Balogun, asserts that she was the tenant of a small shop in Barking Road, London E13, where she was trading a varied range of goods under the banner "Shop and Save Minimarket". She says that she was there as the tenant of Mr Hassan and that she was paying him a weekly rent of £160. She asserts that on 13th July 1999 she was admitted to hospital because of complications with her pregnancy. Apparently the shop was left to slumber and it was only on 10th August, a month later, that a friend of hers visited the shop to discover that the landlord had repossessed and let the business to another, who was trading away, using the claimant's business name and asserting that he had bought the business. One would have thought that any committed trader admitted to hospital on 13th July would have taken pretty urgent steps to ensure that the ongoing trade was sustained and neither prejudiced nor fatally wounded by what was a relatively transient absence.
2. It seems that solicitors were instructed on both sides. On behalf of Anita Balogun a letter was written by solicitors on 9th September 1999 in which, amongst other things, they said:

"You are aware that most of the stock left in the shop are perishable items and your actions have also prevented our client from earning an income. Enclosed with this letter is a list of all the items which were in the shop at the time of your unlawful action and our client intends to recover this amount from you together with damages for loss of earnings as a result of being unable to trade."

3. Mr Wilson, who represents Mr Hassan, has supplied the deficiency in the court bundle, namely the enclosed list. It is headed "Particulars of Items Left in Shop". It runs out to a grand total of just under £61,000. Again I comment that under circumstances such as this I would have expected the injured shopkeeper to have made some effort to recover what was recoverable rather than to instruct solicitors to advance a money claim for nigh on £61,000 plus damages.
4. The initial response from Mr Hassan's solicitors acknowledged that Anita Balogun had been in possession of the premises; asserted that she had failed to pay rent for several months and that she had damaged the premises, and foreshadowed a counterclaim in those respects. However, the writer, whilst challenging the particulars of items advanced by Anita Balogun, did say that he was waiting to receive from Mr Hassan a list of the items that were found in the premises when they were re-entered.
5. A later letter from the same source dated 16th November 1999 asserted that Anita Balogun had been in occupation and had been involved in the running of the business, not as a tenant, but as an associate of a Ms Florence Nkemnacho, who was asserted to be the tenant under an agreement formalised by a lease under the terms of which the landlord was holding a substantial deposit. Having explained the basis for re-entry against Florence, the writer reverted to the chattels claim, saying:

"With regard to the particulars of items purportedly left in the shop, we enclose our client's inventory with respect to those items. It can be seen from this inventory that either the items claimed by your client were not found in the shop, had perished or were of minimal value. So far as your client's alleged claim for cash and jewellery she left in the premises is concerned, we find it very hard to believe indeed that such items would have been left in an empty shop."

6. The accompanying inventory showed in some detail a few items which could constitute shop stock but which were of negligible value, and certain shop fittings which were either admitted to be in the shop, or said to be in the shop in disrepair, or said to be in the shop but owned by others. The letter ended, in relation to such equipment:

"We put your client to strict proof that any of these items were owned by her. However, upon receiving satisfactory proof that such items did in fact belong to your client, our client is prepared to make appropriate arrangements for your client to collect these items. You will appreciate that without proof of ownership, our client is not in a position to allow your client to take these items from the shop."

7. That invitation was repeated in a letter of 9th December 1999, when the writer reminded of the letter of 16th November and its offer and reiterated that the offer remained open.
8. Much has been made by Mr Umezuruike, for the applicant, that these letters lay stress on ownership, whilst he says that all his client had to show in law was a possessory title. But putting myself in the position of the landlord, I can well understand why, in respect of objects such as this, he required some evidence that the items in question either belonged to this claimant as opposed to Florence, the tenant in Mr Hassan's eyes, or perhaps some third party such as a hire purchase company.
9. What is remarkable is that there was no attempt to take advantage of this offer or these proposals. The only answer that Mr Hassan received was the claim itself, which was settled by Mr Umezuruike on 17th November and contained a schedule which is a pretty remarkable document. It is a schedule of the chattels in respect of which the claimant sought recovery. It carries a grand total reduced to £52,000, but it extends to some 27 pages of greatest detail, showing almost to the nearest cigarette what was the tobacco store, or what, within the broad heading of haberdashery, was the total number of tape-measures in stock.
10. The development of pleadings led to the filing of a document on the claimant's behalf headed "Claimant's Response to the Request for Further Information" dated 10th February 2000. This information statement, signed by her on 10th April, included the assertion that she was unable to furnish documentary evidence to substantiate her claim to a tenancy. She said, when asked to produce receipts for rent payment:

"All the receipts were in the premises when the Defendant unlawfully took possession of the premises. The Defendant should now be in possession or control of the said receipts. The Defendant is requested to release these documents to the Claimant."

11. In like vein, in regard to the claim for copies of all receipts relating to the conversion claim, it was said that she kept the receipts in the premises and that they should now be in the possession of the defendant, who was requested to release the same.
12. It is perhaps not entirely surprising that, in the face of such a shadowy case, the defendant applied for summary judgment. That issue came before District Judge Stephenson on 2nd June 2000. It is important to note that the only evidence filed by the claimant in response was a witness statement which simply referred to the request for further information, and continued:

"I oppose the Defendant's application for Summary Judgment as the particulars of my case are contained in my Particulars of Claim, and my response to the Request for Further Information ..."

13. Nothing could really be much more threadbare than that. There was also reliance placed upon a copy affidavit from Florence, in which she refuted her signature on what seemed to be a lease granted to her. The district judge commented adversely on the contradictions within the affidavit itself as well as upon the absence of the original.
14. Mr Umezuruike tells us that, when the application had been running for some little while, his client entered and sought through him to put in some additional documentation to corroborate her case. The district judge, in the exercise of her discretion, declined to receive it. The district judge, in the note of her judgment which has been agreed between counsel, had great difficulty in finding any firm ground anywhere in the claimant's case. In particular, in relation to the conversion claim, she said:

"With regard to her claims it is fanciful to suppose that someone can list down to items such as pickle jars which were taken by the landlord when she has not dealt with the basics of running a business. In answer to this application she does not produce any correspondence showing that she has been trying to get copies of the missing documents. She merely produces a skeleton argument in which her counsel says that these matters can be proved by oral evidence at the trial."

15. She said that the arguments addressed on the claimant's behalf appeared to be nothing more than a smoke screen, and she gave summary judgment.
16. The claimant exercised her right of appeal and that appeal came before His Honour Judge Cooke in the Central London County Court on 8th September 2000. Again Mr Umezuruike sought to put before the judge additional evidence which had been prepared at the very last moment and which the judge concluded he could not admit without injustice to the defendant. He did, however, look at the material, and plainly it did not much impress him. His essential reasoning for dismissing the appeal is as follows (and I again concentrate on the conversion claim):

"This case is not put on the basis of right to possess. It could have been, but it is not. Secondly, if you are going to rely on a right to possess, you must prove it. Mr Umezuruike says that will all be revealed at trial and that he will prove it at the trial, but that will not do. We are here under Part 24. What he manifestly has failed to do is respond to Mr Hassan's witness statement where Mr Hassan very carefully (no doubt on advice) trails his coat in the way in which I have already said. Mr Hassan says, `Well, you show me.' At the moment, I invite the inference, because nothing can be produced, despite this enormously detailed statement, that there is nothing to be shown, even the documents which ultimately I refused to look at earlier today do not help that beyond a few very minor items, mostly consisting of Coca Cola cans.

I think, again, this is the misapprehension (if it is nothing worse) in this case that there needed to be no reply to Mr Hassan's witness statement. There had to be a reply to it. It cried out for a reply. It might be that the Claimant could not produce supporting documents, but she could have said, `I bought all the stock for this shop. I paid for it with my own money. I kept it under my control. Florence had nothing to do with it. It was all in my possession and, what is more, I paid for it.' The court might have been a bit sceptical, in view of the schedule, but probably confronted by that sort of evidence, if sufficient particularity was given, the court might have considered that there was at least something to go to trial with. On the material before me, there is not."

17. Accordingly, he dismissed the appeal. He indicated that he was minded to make a wasted costs order against the firms of solicitors who had acted for the claimant since the inception of the claim. He gave directions to enable them to show cause in opposition to his preliminary view.
18. An application for permission to appeal was brought to this court. On 23rd February Lord Justice Tuckey ordered the application to be heard at an oral hearing on notice, with appeal to follow, by two members of the court. He gave a time estimate of three hours. He also directed that the solicitors agree a bundle for the purposes of this adjourned hearing. Nothing was done. Once again only at the eleventh hour was any attempt made to progress the application when a bundle was lodged on 5th July by the applicant's solicitors. So we have not been much assisted in preparing for this hearing.
19. Yet again the pattern is repeated when another application is made to admit fresh evidence, that application coming, of course, at the eleventh hour and putting Mr Wilson at some disadvantage. However, it does seem that Mr Umezuruike has restricted himself to an attempt to get before this court only the documents that he failed to get before the district judge.
20. In advocating the application, Mr Umezuruike took us through all the relevant material with scrupulous care and he has said everything that could possibly be said to breathe some sort of credibility into what continues to appear an extremely dubious claim. However, the real point upon which we focus this afternoon is that this is a second tier appeal, caught by section 55 of the Access to Justice Act 1999. Accordingly, we may not grant permission unless we are satisfied that an important point of principle or practice has been demonstrated, or that there is some other compelling reason to grant permission.
21. That, of course, is a very high burden on any applicant, and Mr Umezuruike has faced it in his skeleton argument and has set out, under paragraph 10.1, the points which he says justify a second appeal. The first is that the test to be applied in an application for summary judgment requires clarification. There simply cannot be any value in that submission. The test is perfectly plain. There must be a real and not a fanciful prospect. That was correctly discerned by the district judge and equally applied by the circuit judge. Then, in five following paragraphs, Mr Umezuruike puts in a variety of different forms the basic submission that a claimant ought not to fail in a claim for conversion because of the absence of documentary evidence of ownership.
22. I cannot, for myself, see anything approaching a point of principle or practice in any of this. There was a simple issue of fact and evidence: had the claimant, when challenged by the issue of the application for summary judgment, produced sufficient proof of a bona fide claim to earn a place in the queue of cases waiting for full trial? The district judge and the circuit judge both rightly concentrated on the reality and the substance of the asserted loss. Both came to the conclusion that the claim lacked both substance and reality. At best it was shadowy, and at best it extended to a few items of shop stock and a few shop fittings, with a real question mark hanging over who, if anyone, was entitled to compensation, if any.
23. That being the reality, it is manifest that the claimant's entitlement to an appeal has been fully satisfied by the hearing in the Central London County Court. I can see no possible basis upon which this case could be classified as sufficiently exceptional to pass the section 55 test. I would refuse permission to appeal.
24. LORD JUSTICE DYSON: I agree.
Order: application for permission to appeal dismissed; no order in respect of costs of today's hearing; public funded costs assessment where appropriate.