Silver Fern Microlights Ltd v Jones & Ors

SIR STEPHEN RICHARDS: This is a renewed application for permission to appeal against an order of His Honour Judge Robinson sitting in the County Court at Sheffield.

The background is set out in Judge Robinson's judgment dated 12 December 2014. I will not repeat the detail. The Claimant company operates an aviation business at Sandtoft Airfield at Belton, Doncaster. The First Defendant owns and operates the airfield through the Second Defendant.

The Claimant claimed, among other matters, to have been unlawfully evicted from office and workshop accommodation in the form of a lean-to at the airfield, and claimed payment for services said to have been rendered to the Defendants. The judge dismissed those and other claims.

The Claimant was represented below by counsel, but the application to this court has been drafted and presented today by Mr Nesar Rafiq, a director of the Claimant company.

The first main issue raised by the grounds of appeal concerns the allegation of eviction from the lean-to. In October 2013 the Defendants demanded possession of the lean-to in order to commence work on modification and repair. The Claimant obtained an interim ex parte injunction to prevent eviction from the premises. On the return date, the parties filed a consent order which recorded a dispute as to whether the Claimant was entitled to occupy the premises, but importantly provided that the Claimant would vacate the premises on 2 November 2013 in order to allow essential repairs to be carried out on the roof and that the Defendants would allow the Claimant back into possession on 13 December or on completion of the works, whichever was sooner. There was a detailed undertaking by the First Defendant as to the carrying out of structural repairs and allowing the Claimant back in on completion. Thereafter, the Claimant vacated the lean-to.

But the Defendants then obtained a surveyor's report which found that the lean-to was structurally unsafe and had reached the end of its useful life and that it would be uneconomic to carry out the necessary works to bring the building up to standard. In light of that report, the Defendants decided not to carry out any repair works. But they informed the Claimant that if it wished to do so, it could resume occupation of the lean-to, at its own risk. The Claimant declined to do so and took the position advanced in these proceedings that the Defendants had unlawfully terminated and repudiated the agreement between them.

The judge found that the Claimant had consensually vacated the lean-to and declined an offer to return to the premises although they were in precisely the same condition as when they had been vacated.

He went on to consider whether there was nevertheless an eviction in the sense that the conduct of the Defendants had made continued occupation of the premises untenable, that there had in effect been a constructive eviction. He considered the various aspects of the case that the Claimant had advanced to that effect. He found that there had been a genuine intention on the part of the Defendants to repair and refurbish the lean-to, but that there had then been a genuine survey report concluding that demolition was the only feasible option. This had led to the offer to return which the Claimant refused.

The judge rejected the argument that those or other matters amounted to conduct rendering the Claimant's position untenable and that there had been an unlawful eviction. He went on to say that it was unnecessary to deal with the question of whether the Claimant occupied the lean-to by virtue of a lease or licence. For the avoidance of doubt, he found that the Claimant was not prevented from conducting its business by virtue of any wrongdoing on the part of the Defendants.

The Claimant challenges the judge's conclusion, arguing that he erred in law in failing to consider the issue of constructive eviction and/or failing to find that the circumstances amounted to a situation of constructive eviction and that he was wrong to conclude that the Claimant had consensually vacated the premises.

I have referred so far to what is in the written material before the court. It was that material which was considered by Moore‑Bick LJ who refused permission to appeal on the papers. He observed that the judge had the advantage of hearing all those principally involved in the dispute give evidence and that in paragraphs 43 to 58 the judge made findings of fact about the Defendants' conduct for the purpose of determining whether there had been a constructive eviction. The judge's finding that it had not been one of constructive eviction was one of fact in relation to which an appeal would have no real prospect of success. The fact that the Defendants declined to do work on the lean-to might, as the judge pointed out, have supported an application for specific performance, but the premises had been in the same condition as when the Claimant reluctantly vacated them and they could in principle have been reoccupied.

Today, Mr Rafiq has sought to persuade me to take a different view from that of Moore‑Bick LJ. He has focussed in his oral submissions on the judge's failure to determine the actual relationship between the parties and whether this was a lease or a licence, because he says that that would have affected the obligations of the two sides properly understood. He has also focussed on the terms of the undertaking given by the First Defendant about the structural repair of the premises. He complains about the failure to implement that undertaking and about the fact that the Claimant was not even allowed to obtain an independent surveyor's report on the state of the premises. He has taken me to various passages in the judge's judgment and submitted that the judge did not have a balanced view of the case overall and got distracted from the important issues, thereby being led into error.

Despite Mr Rafiq's submissions, I regret to say that I agree entirely with the view expressed by Moore‑Bick LJ. I see no basis on which the Claimant could realistically expect to succeed on an appeal on this issue. I agree with the judge below that it was not necessary, in view of his primary findings on the issue of constructive eviction, to decide whether there was a lease or a licence. His primary findings did not depend and could not depend on the precise legal nature of the relationship between the parties.

I should also stress that, as the judge made clear, the claim was not one for breach of the repairing obligation in the agreement or a claim for dilapidations, and that arguments about breach of warranty of quiet enjoyment which feature in the written submissions before this court were not advanced below and it is too late to advance them now. Nor, I would add, was the judge dealing with an application for committal for breach of the Defendants' undertaking in relation to the carrying out of structural repairs.

Accordingly, in relation to the first main issue raised by the grounds of appeal, I do not think that there is any basis for the grant of permission.

I will deal briefly with the other main issue, although it has not been addressed by Mr Rafiq today. It concerns a claim for payment for consultancy services said to have been provided by the Claimant to the Defendants. The judge dismissed that claim. As Moore‑Bick LJ observed in refusing permission on the papers, the judge found that there was no agreement for consultancy services and indeed that the invoice put forward in support of the claim was false. Again, I agree with Moore‑Bick LJ that there is no real prospect of successfully challenging those findings. They are findings of fact based on careful consideration of the evidence the judge had heard and the Court of Appeal would be very slow indeed to interfere with findings of that kind.

I am therefore satisfied that the criteria for the grant of permission to appeal are not met in this case and that the application before me must be refused. The related application for a stay of execution necessarily falls with the refusal of permission to appeal.