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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 >> Malik v London Borough Of Richmond Upon Thames [2001] EWCA Civ 1530 (10 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1530.html Cite as: [2001] EWCA Civ 1530

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(His Honour Judge Walker)

		Royal Courts of Justice Strand London WC2 Wednesday 10th October, 2001

1. SIR MURRAY STUART-SMITH: This is a renewed application for permission to appeal from a judgment of His Honour Judge Walker given on 19th June 2001 in the Wandsworth County Court, when he awarded the claimant some £5,500 but did not award him any interest on that.
2. The claim arose out of what was called a Service Provider Agreement, which was an agreement between him and the Richmond Borough Council, where they would pay so much per week for accommodation provided by the claimant in a property which he owned for occupation by immigrants.
3. Immigrants who claim asylum in this country are entitled to public funding in two different ways. If they apply for asylum at the port of entry, then they are entitled to housing benefit and income support under the relevant legislation. If they do not do that but claim asylum later, then they are not entitled to those benefits but they are entitled to national assistance under the National Assistance Acts. That is payable by the local authority, recoverable from central government, and it can include the cost of accommodation and the provision of finance for food and so on.
4. The first argument which was advanced to the judge and was advanced in the very, very detailed skeleton argument and grounds of appeal was that that agreement between the claimant and the defendant council was in fact a tenancy agreement. That argument was mounted on the authority of the House of Lords in Street v Mountford. I am afraid I think that is a complete misunderstanding of that case. It is quite clearly not any such agreement at all. It is an agreement whereby the service provider permits the immigrants to occupy the premises and the council will pay so much per week in respect of each occupant. The only conceivable argument that it might be more than that is in clause 1, which provides that:

"The Service Provider agrees to let the Property as a furnished dwelling and provide such furniture, fixtures and fittings as requested by the local authority."

5. But in the context of the agreement it is perfectly plain in my judgment, as the judge himself held, that to let the property means to let it to the immigrants. There is no question, in my judgment, of this being an agreement by which the claimant granted exclusive occupation of the premises to the council. The argument is completely unfounded and untenable.
6. The second ground of appeal is that the judge was wrong in holding that the assured shorthold tenancy agreement which was entered into between Mr Malik, the claimant, and Mr Meta, the head of the family if immigrants, was what is called a "dead letter". In my judgment it was no so such thing; it was a valid assured shorthold tenancy agreement entered into between those parties and created the relationship of landlord and tenant between them. Indeed, that ground really fails with ground one.
7. Ground three was that the judge was wrong to hold that the Service Provider Agreement had been terminated in the correct way. The Service Provider Agreement was not an entirely satisfactory document because, although it provided for the service provider to terminate the agreement there was no similar provision for the council to terminate it (except in circumstances which did not apply here). The judge in those circumstances rejected Mr Malik's contention that the Service Provider Agreement went on forever and ever and said that you had to imply a term of one month's notice.
8. Prof Rees, who appeared before the judge and before me, accepted that there was an implied term for one month's notice. That being so, the question was: did the council terminate the agreement or did they give notice? What happened was that on 27th August the council wrote a letter saying, in effect, they were not going to pay any more under the agreement. Whatever else is clear from that letter, I agree entirely with the judge that it was perfectly clear that they were not going to pay any more pursuant to the agreement. Now that, if you like, was a repudiation of the agreement and the judge held that the claimant was entitled to damages as result of that and that was what he awarded him. But the damages were limited to the period of which the council could have terminated the agreement properly with one month's notice, and that is what the judge awarded. I think he was entirely right to do so and I am bound to say that I think ground three is unarguable.
9. Ground four is that the judge failed to apply two Court of Appeal decisions correctly. They were relating to the relationship between the two forms of assistance which can be given to immigrants. They are, as background, very helpful and very illuminating. But they have got nothing to do with the points in issue in this case and therefore they are neither here nor there.
10. In my written reasons I said that ground five added nothing to the previous grounds, and I believe that to be so.
11. In grounds six and seven it is said that the learned judge should not have rejected the evidence of Mr Malik, which he did in so far as it conflicted with the evidence of the defendant's witnesses. There are two points here. First of all, the judge had the benefit of seeing Mr Malik give evidence in the witness box. He came to the conclusion that he was far too involved, far too incensed with what had happened with the council and that this had coloured his recollection and the way he gave evidence. That is a conclusion which this court cannot interfere with. This court does not interfere with primary findings of fact made by the trial judge based on his assessment of the witnesses, unless there is cogent documentary evidence or something of the sort to indicate that the judge had gone wrong. There is nothing of that sort here. Secondly, I have failed to understand how, even if the judge had not been so critical of Mr Malik's evidence, it would affect the issues in the case. The issues on ground one and two are pure questions of construction. They do not depend on the applicant's evidence in any way. Similarly, with ground three on the question of termination of the contract. That is a question of law and a question of construction of the letter of 27th August.
12. In my judgment, therefore, the question of the credibility of Mr Malik, although he may have found it hurtful that the judge took such an adverse view of his credibility, is not an issue which should excite the Court of Appeal because it does not go to any issue in the case.
13. Finally, it was said that the judge should not have applied a set-off in relation to housing benefit cheques which were sent to the applicant but which he never cashed. The judge did not set them off. It was not a question of set-off at all: it was a question of failure to mitigate damage. The claimant was entitled and was awarded damages for breach of contract, both in the respect I have indicated and in another minor respect in relation to two others of the Meta family. But as is always the case where damages are awarded for breach of contract, there is a duty on the part of the person suing to mitigate his damage. What happened here was that the London Borough of Waltham Forest paid regular housing benefit cheques to Mr Malik, but he chose not to cash them because he thought that it would in some way prejudice his case against Richmond Borough Council. Well if he chose to do that that was his lookout. It now appears that the cheques are past their payment date and it may be that Waltham Forest Borough Council are not prepared to renew the payment. But that the judge was wrong in holding that Mr Malik had failed to mitigate his loss is unarguable.
14. The final point, which I confess I had not dealt with on the written application, is that the judge did not award interest on the sum of damages which he awarded. That is a matter of discretion for the judge. There is no discussion on an application for interest before the judge. Prof Rees says that he just did not deal with it. But without seeing any sort of transcript on that it is very difficult for me to judge. It seems to me there was ample material here on which the judge could have exercised his discretion not to award interest. It was a relatively small sum in any event. A great deal of time had been taken up one way or another. The judge did not accept Mr Malik's evidence. He preferred that of the witnesses on the other side. It seems to me that there is clearly material upon which the judge, had he so expressed himself, could have decided not to award interest. But in the absence of any record of any discussion about it or why the judge did it or what submissions were made to him, it is impossible, in my judgment, for this court to give permission on that point.
15. In any event this court is subject to the overriding objective in the Civil Procedure Rules. Permission to appeal must be proportionate to the outcome. A very small amount of money appears to be involved in this point, and in my judgment it would not be right to grant permission to appeal on that point alone.