Kinnear v Whittaker

I heard this renewed application for permission to appeal against the Order dated 21 June 2011 made by Bean J, allowing the Defendant’s (now the Respondent’s) appeal against the order for possession and costs made by His Honour Judge Lochrane on 4 October 2010 in Chelmsford County Court.

The case raises an interesting and important point of law, and if Bean J had made an order following the trial of the claim, I should unhesitatingly grant permission to appeal, irrespective of who had succeeded before him, and notwithstanding that the appeal would be a second appeal. But there has not been a trial.

The claim is brought by receivers appointed by reason of a mortgage loan taken out by the applicant in 2008. The nominal applicant has defaulted in his payments under the mortgage.

In 2007 the respondent entered into an agreement with the applicant and his partner for the sale of the property that was subsequently made the subject of the mortgage. Following the completion of the agreement, the respondent remained in occupation, apparently under a written agreement expressed to be an assured short-hold tenancy. It is at a low rent of £1 per month, and so does not qualify as such a tenancy. However, by her amended defence, she asserts that the agreement she made with the applicant was that she could and would continue to live in the house on the property for as long as she wanted. If so, the written tenancy agreement does not reflect the agreement as to her continued occupation made between the applicant and the respondent. She also contends that the applicant agreed that she would have a right of pre-emption: see paragraph 10 of her amended defence. She contends that by reason of her oral agreement with the applicant and her continued occupation of the house, she is entitled to remain under the doctrine of proprietary estoppel or on the basis of a constructive trust.

The applicant contends that the respondent’s contentions do not give rise to a defence to the possession claim, because any such equitable estoppel or constructive trust is excluded by section 2 of the Law of Property Act 1989. His Honour Judge Lochrane upheld that contention. It followed that irrespective of whether the respondent’s facutal contentions are well-founded, the applicant, by the receivers, was entitled to possession.

On appeal to the High Court, Bean J conducted a review of the authorities, and held that there is no binding authority giving a definitive answer to the question raised by the applicant, and that the facts are not sufficiently clear for the case to be suitable for summary determination on the documents. It followed that the claim is “genuinely disputed on grounds which appear to be substantial”, and he allowed the respondent’s appeal. He remitted the case to proceed to trial in the Colchester County Court.

Mr Moraes does not submit that the legal issues raised in these proceedings are the subject of clear binding authority. That being so, to a significant extent the decision of Bean J was a case management decision.

I deferred giving judgment on this application when it was heard on 6 December 2012 by reason of the impending case management hearing in the County Court. I gave leave to the applicant to submit further written submissions once it was known when the trial would take place. If the date for the trial were far in the future, on a case management basis the argument for hearing this appeal before the trial would be stronger.

On 13 December the County Court directed that the trial should take place in the trial windows 9 to 20 April 2012 and 21 May to 1 June 2012.

Helpful supplemental written submissions on behalf of the applicant were subsequently filed. I have carefully considered them.

It seems to me that there is no basis for impugning the assessment of Bean J that this is a case that should proceed to trial. It is better the question of law is decided, if it arises, on the basis of findings of fact, rather than on the basis of the pleadings. I appreciate that this leaves the applicant with a substantial costs liability as a result of an argument on a point of law on which he may eventually succeed. Indeed, it may be that the respondent will not establish the facts for which she contends. But having chosen to apply for, in effect, summary judgment, the applicant must bear the costs consequences that follow from his failure before Bean J.

Moreover, the County Court trial, as presently directed, will be concluded before any appeal against the judgment of Bean J would, in the normal course and without expedition, be heard. I appreciate that the trial windows are not carved in stone, and the Court order reserves a liberty to apply, but there appears to be no reason why those dates should not be adhered to. I understand that the respondent does not have legal aid for the trial, but does for this appeal if I grant permission. But it seems to me that that cannot be a good reason to grant permission to appeal. If an application is made to postpone the trial date, I hope that this judgment will be brought to the attention of the County Court judge. I have taken account of the trial windows that have been directed in deciding that permission to appeal should not be given.

Accordingly, I refuse permission to appeal.