Nizami v Dezyanian

This is a renewed application for permission to appeal brought by the defendant, Mr Nizami. The background is that Mr Nizami was the claimant’s landlord in respect of a property: Flat 1, 20 Lisson Road, London NW1, which was a studio flat on the ground floor of a block. The defendant, Mr Nizami, granted the claimant an assured shorthold tenancy of that property in 1997.

On 10 December 2010, the defendant’s own lease of the property was forfeited by process of law. Proceedings were brought by the claimant in order to recover compensation for the circumstance that, as he alleged, the premises were in a shocking state of disrepair, in consequence of which he had been deprived of a substantial part of that for which he had paid rent at the rate of £550 per month. Particulars of claim were served in the Central London County Court and Mr Nizami put in a defence and counterclaim on 11 March 2011. On 2 February 2012, the defence was struck out.

On 16 February 2012 a hearing took place before District Judge Jackson. District Judge Jackson had first to consider a request by the defendant for an adjournment of the hearing in reliance on medical evidence and he rejected that request. District Judge Jackson then continued to hear the claim on the merits in the absence of Mr Nizami, but in the presence of counsel representing the claimant, as a result of which he entered judgment for the claimant for what he described as his claim for housing disrepair. He gave judgment to the claimant in the sum of £32,236.95 for general and special damages and interest; the assessment of damages being set out in a schedule attached to the order.

Mr Nizami, the applicant, made an application to set aside that judgment, on the grounds amongst others that he had not received a copy of the listing questionnaire and had not had proper notice of the hearing and had been unable to attend it for medical reasons; but on 30 April 2012, District Judge Fine dismissed that application pointing out that this was a matter which had to be pursued by way of an application for permission to appeal.

The application for permission to appeal came before His Honour Judge Gerald sitting at the Central London County Court on 2 August 2012. Judge Gerald refused the application for permission to appeal save to the limited extent granted by paragraph 2 of his order which was to the effect that permission to appeal was granted in respect of the assessment of damages in the sum of £13,200 for the period January 2009 to December 2010. I should add that the damages had been assessed in relation to three periods of time and the period to which the Circuit Judge was there referring was the third period. The decision of Judge Jackson was to award, by way of damages to the claimant, 50 per cent of the rent that he had paid during the period December 2004 to June 2007; 75 per cent of the rent which he had paid during the period July 2007 to December 2008; and 100 per cent of the rent payable in respect of the period January 2009 to December 2010. It was in respect of that last award of 100 per cent return of the rent that the defendant was successful in obtaining permission to appeal.

Judge Gordon gave his reasons pointing out that there was a real prospect of successfully arguing that an award of 100 per cent was too high, given that the claimant had remained in occupation of the premises throughout, notwithstanding the state of disrepair.

That appeal came on for hearing before Her Honour Judge Guggenheim on 19 April 2013. Mr Nizami appeared in person before Judge Guggenheim and the claimant was represented by counsel. Mr Nizami renewed his application for permission to appeal against the decision of Judge Jackson in its entirety. Judge Guggenheim refused permission to appeal on the remaining parts of the defendant’s appeal with the effect that (as it is put in the White Book at paragraph 52.3.8) that was the end of the road so far as concerns all aspects of this dispute save only the assessment of damages for the third period. As I have pointed out to Mr Nizami this afternoon, that is the effect of section 54(4) of the Access to Justice Act 1999, which we have looked at together, as explained in paragraph 52.3.8 of the Civil Procedure, volume 1.

It follows, therefore, that the only matter in respect of which I have any jurisdiction to consider this renewed application for permission to appeal is the decision by Judge Guggenheim in respect of the damages for period 3. So far as that is concerned, Mr Nizami was in fact successful before Judge Guggenheim in the sense that Judge Guggenheim reduced the damages in respect of that period, which it will be recalled were £13,200 (representing 100 per cent of the rent payable) to £9,900 which reflected a reduction in the amount payable by way of damages to the claimant from 100 per cent of the rent he had paid to 75 per cent of the rent he had paid; the same amount which had been awarded in respect of the second period, and no doubt that is because Judge Guggenheim saw the force of the point made by Judge Gerald to the effect that, notwithstanding the state of disrepair, the tenant had remained in occupation throughout the relevant period. I should add that I do not have any formal set of reasons for Judge Guggenheim’s decision.

Mr Nizami wishes to appeal against that award of damages by Judge Guggenheim because he says that still the award of damages in respect of period 3 was unjust because he had not been served with notice that repairs were required and as soon as notice was given, the relevant repairs were carried out.

As I have pointed out to Mr Nizami, this is an application for permission to bring a second appeal which means that in order to succeed he must demonstrate that there is here some important point of principle or practice or some other compelling reason why this court should entertain a second appeal. In that endeavour, he has failed. It is obvious that the point which he wishes to raise is a point upon which he simply disagrees with the finding of the court below. The finding of the court below is plainly based upon a rejection of Mr Nizami’s evidence and indeed I note that Judge Gerald, when the matter was before him, noted in his reasons that the defendant had, in large measure, admitted the disrepairs; had been ordered by injunction to repair them; had failed to comply with the order of the court and had adduced no evidence contrary to the compelling evidence of the condition of the studio flat which had been prepared by an independent surveyor.

It follows therefore that this proposed appeal raises no point of principle or practice and there is no compelling reason why the court should entertain it. For all those reasons, therefore, I refuse permission to appeal.