Susan Coombs v Michelle Hayes & Anor

Susan Coombs, the Applicant, seeks orally to renew her application to appeal against the judgment of His Honour Judge Harrison dated 7 January 2025, in which he dismissed her claim for damages caused by an alleged breach of lease, and allowed, in part, the Respondents’ counterclaim for unpaid rent. The Respondents are Mr and Mrs Hayes, the landlords. Permission was refused on paper by Sir Peter Lane.

The Applicant represented herself, accompanied by a McKenzie Friend. The Applicant’s written grounds and skeleton argument were supplemented at the renewal hearing by oral submissions, which followed a script prepared in advance and helpfully provided in writing. The Applicant ably presented her case and was of considerable assistance in responding to questions and expanding upon her grounds of appeal, for which the Court is grateful. The outcome of her appeal, which will no doubt be a disappointment, is no reflection on the clarity with which her arguments were pursued, both in writing and orally.

The subject property was part of The Warehouse, Wharf Road in Newport, South Wales, (‘the Premises’). Mrs Coombs leased the Premises since 2007, and ran a pet shop including an aquarium from the Premises. The Particulars of Claim states that she happily provided live pets and pet supplies without any problems until November 2019.

The pleaded claim relied upon specific terms of her Lease:

Mrs Coombs’ pleaded claim was that in June 2019, the exterior of the Premises suffered structural damage, caused by adjacent works by Network Rail, which led to significant infestation of vermin in the shop, and flooding at the storage end of the premises. The structural damage meant water and vermin gained access via holes left in the walls.

Paragraph 7 of the Particulars of Claim asserted that the Respondents visited the property in November 2019 with a representative of the Respondents’ insurers who indicated that Mrs Coombs would have to relocate (it is inferred, for remedial works), but that this did not happen because the Respondents blamed the delay in solving the problem on COVID. The Applicant alleged that the vermin problem increased dramatically, with mice eating parts of the walls of both floors. No amount of poison was capable of killing them. The vermin in the property, it is alleged, led to the decline in the business reputation and to sales which eventually led to the shop having to close. It is alleged that some work had been carried out to help with the flooding. In 2019 animal health attended the building, recording vermin droppings. It is said that, in March 2022, the Respondents attempted finally to solve the problems but by this time the shop was in too much disrepair, with vermin holes in every wall of the building. At paragraph 17, the Applicant alleged that by this time the problem was not the floods, it was that holes in the building which meant that the building was completely overrun by vermin.

At paragraph 14, the Applicant pleaded that the her tax returns show a massive drop in her turnover from 2017-18 until 2021-22 when the Applicant eventually had to close her business. A schedule of loss was provided which alleged losses totalling £133,108.95. The main element for the claim was for £99,639.30 for loss of profit over a period of 30 months to the date of the claim, with a statement that the estimated costs for the loss of her business were being compiled. Other claims included £13,588 withdrawn from her pension, and estimated costs incurred on poison, cleaning, and damaged stock.

The Respondents contended that the Applicant could not establish any alleged breach on their part, and denied causation. The counterclaim alleged rent arrears of around £28,000 as at March 2023, together with dilapidations costs of £20,450.44.

Over a three day hearing, the Judge heard evidence from the Applicant, various witnesses called on behalf of the Applicants, and from the Respondents. There was a single joint expert (‘SJE’). As she did before me, the Applicant represented herself, with the benefit of a McKenzie friend. The Respondents were represented by counsel.

The judgment, between paragraphs 5 and 54, recites much of the chronology of the events of 2019 through to 2023 on the basis of extracts from relevant correspondence. Apart from in certain respects which are the subject of specific Grounds of Appeal, the majority of this section of the judgment is not the subject of any particular criticism. Given that it is drafted based on contemporaneous correspondence this is unsurprising.

In summary, key parts of the chronology leading to the determination of the Judge are as follows (with square bracket references to paragraphs of the Judgment):

The Judge explained at paragraph [52] that he considered the correspondence was the most reliable source of narrative in circumstances where he treated both sides’ oral evidence with caution. He found the Applicant’s assertion that there were no outstanding rent arrears as of January 2020 to be wholly inconsistent with her email and the reference to ‘Hang in There’. He was also unimpressed with the evidence of the Respondents about what they observed in February 2020.

At paragraphs [55]- [59], the Judge dealt with the evidence of the SJE. No reference was made to concerns raised by the Applicant in respect of the way in which the SJE process had been conducted, which had been formally raised at the outset of the trial. This relates to a specific ground of appeal and is considered further below.

The SJE report was principally focussed on the cause of flooding. As recorded by the Judge, the SJE accepted that it was not usual for storm water to be directed under the building, as it did, and that this was a flawed design. In respect of certain photographic evidence of flooding, he considered that this was more likely to have been the consequence of internal features as opposed to external flooding.

At [60], the Judge identified that the first issue to resolve was the Applicant’s claim for loss of damage arising from the allegation of breach of agreement “and/or negligence” on the part of the Respondents. At [62], the Judge recorded that the Applicant contended that the flooding and rodent infestation arose from a defect in the premises for which the Respondents were liable as owners. He records that Mrs Coombs claimed that the Respondents were aware of the defect and failed to remedy it promptly, leaving her effectively unable to trade. The Judge recorded that, insofar as the Applicant was able to point to a specific defect, she relied upon the holes in the wall adjacent to the area where the soil pipe entered the premises, as identified in various photographs. The Judge then identified that the defence was that the Applicant had not established that the flooding or rodent infestation were caused by the identified defects, and that in any event the loss of business claimed was not established as having been caused by the complaints made.

The key findings of the Judge in respect of liability were at paragraphs 64-66. These state:

“64.

In resolving this issue, I am mindful of the following. Firstly, the evidence from both sides establishes that there was no history of flooding or infestation in these premises in the years leading up to autumn 2019. Secondly, there is no evidence of a structural failure or material alteration in the premises prior to the events complained of, that readily explained their occurrence. The single joint expert's evidence in this regard is important. Thirdly, on the evidence available to me, I am able to conclude that the condition of the wall, namely the holes or gaps around the pipe, have been present for many years prior to the events and probably existed since the construction of the warehouse by, as I understand it, Mr Hayes' father. Fourthly, whilst the sort of arrangement that has existed whereby the soil pipe passed beneath the building slab might be regarded as a flaw, it is difficult to see how this could have caused the matters complained of by the claimant. Fifthly, notwithstanding the sale and refurbishment of the premises on the part of the buyers, the arrangement of the pipework in this area remains broadly as it was prior to the flooding and the infestation. However, finally, again on the evidence, I can readily conclude that whatever occurred at the end of 2019, the effect of that presented itself in early spring as a significant ingress into the property, as observed by Mr and Mrs Hayes. When the defendants visited the property, they were shocked by the condition and described in a contemporaneous email, the level of water penetration and damage. I reject any contention that what was observed was limited to a small amount of water.

65.

However, on the basis of the evidence presented to me, I am unable to conclude that such condition, as observed at that point, arose from any established defect in the condition of the premises for which the defendants were responsible. From a chronological point of view, the problems arose reasonably approximate to the time of Network Rail undertaking the electrification work to the line in this area. Certainly when it comes to infestation with mice, there was anecdotal evidence from witnesses of rodents being disturbed on the railway land and effectively relocating. It is simply not possible to identify how mice might have made their way inside the demised premises. In my judgment, it is not possible to explain infestation with mice by reference to the condition of those premises. There is no doubt that a pet store with food stuffs being stored would be an attractive prospect for a disturbed nest of rodents. Equally, physically rodent-proofing premises of this sort would be impossible, and mice will find a way into any property were food stuffs are readily available.

66. Even if I am wrong about this, there are other aspects of this element of the claim that presents significant obstacles for the claimant. Firstly, as a matter of admitted fact, there is no doubt that the claimant initially chose not to inform the defendants of the problem at the premises, but rather those to engage with Network Rail and focus complaints upon them. To some extent, this might be regarded as understandable. However, it is also indicative of how the claimant was thinking at the time. Plainly, she did not immediately think that her landlords had some responsibility for some issue with the premises. Rather, her actions seemed to be consistent with something done by Network Rail that rendered a hitherto acceptable situation to be a problem. The defendants were simply unaware of the initial problem for a couple of months.”

Causation of loss was then dealt with at paragraphs 68-70. These record:

“68.

In order to succeed in the claim for damages arising from a breach on the part of the defendants, the claimant would have to establish that the losses complained of were caused by the matters complained of. To that end, evidence would have to be adduced to establish the sort of financial loss the claimant has attempted to place in a schedule. Effectively, Ms Coombs contends that a profitable business was lost because of the events complained of. Whilst I quite understand how unpleasant it must have been for her, that, in my judgment, falls a long way short of the sort of calculation that the claimant suggests.

69.

Even if I were to be persuaded that some loss associated to her business could be recovered, there are further hurdles that the claimant would have to overcome. To begin with, the profitability of her business would have to be evidenced, as opposed to merely asserted. Secondly, the reduction of profit would have to be related to the problems complained of, as opposed to some other factor. It must be remembered that the problems occurred virtually simultaneously to the Covid pandemic. Lastly, some account would have to be taken of any earnings that the claimant had been able to make whilst undertaking some work from her home, either by obtaining or selling feed or providing holiday or similar care for exotic birds, etc.

70.

In my view, the evidence adduced falls a long way short of allowing such a calculation and the burden rests with the claimant. If I had been persuaded to look to an award of damages, I suspect I would have looked to the value of the demised premises to the claimant measured by virtue of the amount of rent paid.”

At [72] onwards, he dealt with the Respondents’ counterclaim for lost rent, which he allowed only up to the end of 2019. This was based on a finding that the Applicant was behind in rent at that point, but after that point the disrepair caused by the storm, to which the loss adjusters had referred, entitled the Applicant to a reduction in lost rent. The Counterclaim therefore succeeded to the extent of £4,300 only.

On an application for permission to appeal, the test is whether the grounds are reasonably arguable.

CPR r.52.21(3) provides that:

“The appeal court will allow an appeal where the decision of the lower court was —

(a)

wrong or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.

As to (a) a decision may be wrong if (i) the judge erred in law; (ii) the judge erred in fact; (iii) erred in the exercise of discretion. (i) and (ii) are relevant to the Grounds of Appeal advanced.

It is trite that questions of law fall squarely within the purvey of legitimate interference by an appeal court if the judge has fallen into error.

As to an error of fact, it is well established that the circumstances in which an appeal court will interfere with findings of fact by the trial judge are limited. A recent summary was given by Lord Justice Lewison inVolpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48:

As to the third ground, procural unfairness may also legitimately give rise to a ground of appeal.

An error of law of fact has to be material. If the outcome of the case would be the same irrespective of the error, an appeal will not succeed.

In respect of procedural or other irregularity, it must (a) be serious; and (b) render the decision unjust.

The Applicant alleges that the Judge misapplied legal principles regarding repairing obligations. Specifically, it is said that the Judge erred by applying a tortious causation test to a contractual claim for breach of repairing obligations. The Applicant states, on the basis of Edwards v Kumarasamy [2016] UKSC 40 that, the questions which ought to have been addressed are:

It is said that the effect of the Judge’s approach was to reverse the burden of proof.

There is no doubt that the Judge fell into error in referencing ‘and/or negligence’ as any part of the issues in the case at [60]. Negligence was not an issue.

However, the Judge did not ignore the fact that the claim was one brought under the agreement. Moreover, the inclusion of these words at [60] did not mean the Judge was wrong to focus, in substance, upon whether the Applicant had established, on the balance of probabilities, a state of disrepair which gave rise to obligations under the lease. The Judge specifically refers to this at [62]. Moreover, in considering this question, the Judge did not consider ‘disrepair’ in the abstract, but concentrated on whether the Applicant had established such disrepair as was said to be the cause of the Applicant’s loss and damage – namely disrepair causing flood and/or vermin infestation. To do so was not arguably an error on the part of the Judge. Focussing on the alleged disrepair capable of causing the claimed losses was correct.

It is not therefore correct, upon analysis, that the Judge reversed the burden of proof, or required the Applicant to establish negligence. Neither did he apply a test of causation referable to negligence. The lease did not impose ‘strict liability’ by which (as the Applicant’s submissions effectively assume) the ingress of water and/or vermin of itself proved the existence of a state of disrepair which the Landlords were responsible for.

Having considered correctly, as a matter of law, that the burden of proof to establish the relevant disrepair fell on the Applicant, the Judge found that no disrepair causative of the losses complained about (or, as he referred to it at times, ‘defect’ in the property), giving rise to a liability on the part of the Landlords, had been established as a matter of fact.

Whilst the Judge clearly accepted that there was some significant water ingress which had occurred by the date of the Respondents’ inspection in February 2020, he concluded that the Applicant had failed to establish that that was as a result of a matter for which the Respondents were responsible. Read fairly, this finding was entirely unrelated to or uninfluenced by a misapplication of the concept of ‘negligence’. It related to disrepair in the context of the lease obligations. The mere fact of water ingress did not demonstrate, of itself, that such disrepair as may have caused the water ingress was something which the Respondents had either known about or resulted from a failure to maintain the property. Indeed, it was common ground that the Respondents did not know about water ingress until mid-January 2020 at the earliest, some period after the first water ingress was reported (initially to the Applicant’s own insurers on the basis that water ingress had been caused by Network Rail’s works). By this point, the Applicant had already reported that her business had been ruined. This was a finding of fact that the Judge was entitled to come to on the evidence.

As to the infestation of vermin, the Judge concluded, on the evidence, that it was not possible to explain infestation with mice by reference to and disrepair in the condition of the Premises, whether caused by a failure to maintain or otherwise. This was on the basis that a pet store with food stuffs being stored would be an attractive prospect for a disturbed nest of rodents, and physically rodent-proofing premises of this sort would be impossible: mice will find a way into any property where food stuffs are readily available.

These were findings of fact which the Judge was entitled to come to on the evidence, and were not the result of reversing the burden of proof. There is no important issue of law at the heart of this case. The findings were made after a thorough review of all the contemporaneous views expressed by the various professionals and contractors to which he referred during the lengthy period of investigation. Although the Applicant, in her written and oral submissions, submitted that disrepair was proven via the contemporaneous expert reports and insurance emails, this is a partial submission. There were, to some extent, conflicting views expressed contemporaneously as to whether the flooding caused in 2019 or 2020 was one-off or as a result of systemic issues. Importantly, no view expressed contemporaneously blamed the flooding on a failure to have maintained part of the Premises. Moreover, none of the reports dealt with the causes of vermin infestation, which was the real problem the Applicant said she was facing and which caused the loss of her business. It was for the Judge to assess the evidence and the view he came to was not one no reasonable judge could have arrived at.

Ground 1 is not reasonably arguable.

The Applicant says that she was excluded from the expert inspection, which had been arranged unilaterally by the Respondents on the same day she was attending the Pre-Trial Review. She also alleges that the expert’s report relied upon misinformation about the extent of the Premises taken up by the Aquarium, leading to an erroneous assumption that internal features caused some of the flooding. The Applicant argues that the Judge was wrong to reject the expert’s conclusion that excessive water could have accumulated and passed up the walls or into the slab.

It is reasonably arguable that the Applicant’s exclusion from the expert inspection was unfair. It is also reasonably arguable that, on account of the SJE’s instructions and/or approach to the extent to which the premises was used as an aquarium, the SJE was under a misapprehension which he may not have been had the Applicant attended the site inspection. To this extent, it is reasonably arguable that there existed a procedural irregularity. The Single Judge was not aware that these complaints were in fact raised by the Applicant.

Notwithstanding, it is necessary to consider how serious the irregularity was, and whether it has the result that, for the purposes of this application, the outcome of the trial was arguably unjust.

The Judge did not rely in any material way upon a misunderstanding that the entirety of the Premises was an aquarium. Moreover, he specifically noted (at [56]) the expert’s view that storm water being directed under the building was a design flaw; and (at [59]) that the presence of staining to the outside were consistent with the presence of water. Importantly, the only part of the SJE evidence which the Judge relied upon substantively was the absence of any structural alternations which may have explained the onset of problems in 2019: see [64]. This finding of itself is entirely unobjectionable on the basis of all the evidence placed before the Judge, and, moreover, did not form any part of the Applicant’s complaints about the Judge’s findings.

Therefore, whilst the Applicant has a right to be aggrieved that she had not been present when the SJE inspected her property, and it would have been appropriate for the Judge to deal with this complaint, which had been raised specifically by the Applicant at the start of the trial, expressly as part of his judgment, it is not arguable that this irregularity in fact caused any injustice on the facts of the case. The very limited respects in which the conclusions of the SJE featured in the analysis of liability and causation determined by the Judge means that, in reality, her absence and the SJE’s inspection did not impact the overall justice of the case. This ground of appeal is not reasonably arguable.

It is argued that the Judge’s finding dismissing the Applicant’s claim is inconsistent with the Judge’s finding that there was disrepair entitling the Applicant to a reduction in rent, in the context of the Counterclaim.

This is not reasonably arguable. The dismissal of the claim was predicated on whether the Applicant had established that there existed a particular state of disrepair, causative of the flooding (and, in particular, the rodent infestation which is claimed to have led principally to the loss of business) which the Respondents were obligated to repair. He found no such disrepair. That is not inconsistent with a finding that the damp caused by the flooding which occurred over the winter of 2019/2020, rendered the property for a period of time such that no rent was payable, whether in accordance with Clause 12 or otherwise.

It is asserted that the Judge was wrong to find that, as of January 2020, the Applicant was in arrears.

The Respondents claimed that, as at the end of 2019, arrears owing to them amounted to £4,300. The calculation of this sum was presented by way of schedule, which identified the £600 payable each month, the monthly payments by bank transfer from the Applicant and the shortfall, which totalled £4,300. In oral submissions upon the renewal application, the Applicant accepted that this was accurate insofar as bank transfers were concerned, but explained that her case had been that she had paid the shortfall in cash. This had been denied by the Respondents in their evidence before the Judge. This issue was one word against the other. The Respondents had provided their bank statements, and confirmed a single cash payment in January 2020 of £300.

The Judge rejected the Applicant’s evidence that she was not behind in her rent as at the end of 2019. At [52] the Judge found:

“I find the Applicant’s assertion that there was no outstanding rent arrears as at January 2020 to be wholly inconsistent with her email to which I have referred…If at that stage she was up to date with her rent, why would she be asking Mr Hayes to hang in there? Frankly, it makes little sense.”

The Applicant’s position, in evidence before the Judge and on appeal, was that the email reference to ‘hang on in there’ related to a £300 shortfall for December 2019, rather than an aggregate shortfall of £4,300 calculated by reference to the schedule of rent owed and bank transfers. On its face, the conclusion of the judge that this would be an odd thing to say if the only arrears was a single shortfall of £300, for the first time ever. ‘Hang in there’ is certainly a phrase which suggests a rather longer term issue. It is not reasonably arguable that the Judge was not entitled, on this point, to prefer the evidence of the Respondents.

In her written grounds of appeal, the Applicant refers to an email dated 9 August 2021 from the Respondents stating, ‘we have received no rent since this happened’. It is said that this is an admission supporting the fact that the Respondents had received rent up to that point, and thus undermining the finding of the Judge (who does not refer to this email.) This is not reasonably arguable: the email is entirely neutral. It is right, factually, that no rent was received since the events complained about, whereas prior to the end of 2019, some rent was received. It is therefore not probative either way.

In her oral submissions (but not written grounds), the Applicant referred me to an email of 28 January 2020, which is of particular importance, stating to a third party, amongst other things:

The Applicant says that this was not considered by the Judge, and had it been, the Judge would have concluded that she was correct that she had only gone into rent arrears because of the problems occurring in late 2019. The Applicant is correct that this document was not referred to by the Judge. As discussed in relation to Ground 6, it is likely that the Judge was not aware of this email. However, it is not reasonably arguable that the email undermines the finding of fact by the Judge, which he was plainly entitled to make. Indeed, the Judge would have been entitled to observe, in further support of his factual conclusion, that the Applicant had produced no evidence (such as receipts) for the cash paid in respect of rent, nor pointed to extracts from her bookkeeping which one would expect to have existed recording that she had (as she explained in evidence to me) given the Respondents money from the till. For a business to have no record whatsoever that it had paid £4,300 before tax in cash payments to the business’s landlord would be highly irregular. The Judge was plainly entitled to accept the Respondents’ evidence on whether, and by how much, the Appellant was in arrears as at the end of 2019.

It is therefore not reasonably arguable that the Judge’s finding in this respect was an error of fact.

The Applicant contends that the Judge failed to engage with Clause 11 and the right to quite enjoyment.

In the grounds, the Applicant complains of (a) flooding, (b) vermin, (c) without electricity in the rear area, (d) under inspection orders from local authorities, (e) constant damp and (f) denied drying and repairs to drainage delays. It is also said that the Respondents repeatedly breach this obligation by entering the commercial unity without notice accompanied by surveyors and contractors. In her written grounds, the Applicant identified that case law, including Southwark LBC v Mills [1999] UKHL, established that persistent environmental deterioration caused by landlord inaction can amount to a breach of a covenant of quiet enjoyment.

The Judge did engage substantively with the issues of flooding and vermin. Whilst it is correct that he did not consider the same matters in the context of Clause 11, given his factual findings that the Landlords were not responsible for any disrepair which had caused the flooding and/or vermin, he would not in the same breath have found these matters amounted to a breach caused by the Landlords’ inaction for the purposes of Clause 11. These are the only pleaded complaints in respect of quiet enjoyment. This is not therefore an arguable ground of appeal.

Although not pleaded as a breach of Clause 11, for completeness I note that disrepair by way of damp was also considered substantively, and the Judge found in the Applicant’s favour. This was, in substance, the cause of the Judge’s dismissal of the majority of the Respondent’s Counterclaim.

Under this ground, the Applicant also claims that reports from Smithers Purslow and Drainrod were not disclosed by the Respondents. Other reports, possession of which was originally denied by the Respondents, were produced. It is correct that the existence of these reports was referenced in correspondence between the Respondents and their insurers, and the Applicant’s belief that such reports would have existed at some point was plainly a reasonable one. However, it does not follow from this that the Respondents were in breach of their disclosure obligations in not producing the reports, if (as the Respondents said) they no longer existed/could be located. As the Judge said, this was unsatisfactory. However, this does not amount to an arguable ground of appeal. Moreover, it is not arguable that because the Judge considered the absence of the report to be unsatisfactory, it was incumbent upon the Judge to draw adverse inferences against the Respondents in respect of all or some issues of fact. As it happens, the Judge did in effect conclude that neither side’s oral evidence was credible in all respects, and this was a reason that he drew heavily on the contemporaneous documents, which he was plainly entitled to do.

The Applicant argues that she was treated unfairly as a litigant in person. The particulars of the complaint centre (a) upon 7 late bundles; (b) altered and missing documents (c) refusal to use the Applicant’s hard copy bundle and (d) a requirement to use an electronic bundle, imposed at short notice.

The remainder of the written submissions under this ground then effectively re-argues substantively points about the Judge’s conclusions of fact. I will therefore consider the specific complaints relating to bundling and documentation.

The 7 bundles refer, as I understand it from oral submissions, to one 3-volume bundle provided by the Respondents shortly before trial; an updated version of the same, and what was described as a further supplemental bundle. After making enquiries of the Court, it appears that an electronic copy of the bundle was served by the Respondents by Egress (the electronic transfer system) on the Court a week before trial, on 14 August 2024; following exhibits being filed by the Applicant, an updated bundle was filed, and on 20 August, after concerns were raised by the Applicant as to the contents of the electronic bundle, a further version was uploaded through Egress. An authorities bundle was also served, which cannot be regarded as objectionable.

Save in one respect, the complaint does not relate to the content of the bundles; just that the Applicant was required to navigate the documents in a way that was unfamiliar to her at trial. On this renewal application, I have only been presented with one side of the argument concerning the Applicant’s complaints as to bundling. If the Applicant’s explanation of how events transpired is factually correct, and she was, or perceived that she was, being forced at very short notice to work from an electronic bundle when her case preparation had been undertaken on the hard copy bundle already provided to the Court, I consider she is entitled to feel aggrieved. Whilst it may be that experienced counsel should be able (albeit not without inconvenience) adapt at short notice in dealing with a bundle in a different form, it was not appropriate for a litigant in person to be so required. Given that the Judge’s copy of the 2 volume hard copy bundle provided by the Applicant was retained on file, I have reviewed it during the course of considering this application. On the face of it, it was in perfectly good order, and the Applicant ought to have been allowed to use it, rather than being required to use a different electronic bundle provided by the Respondents shortly before trial.

Whilst therefore I consider it arguable that, in this respect, the Applicant was placed at some inconvenience, I have to consider whether this, in any material way, rendered the hearing unfair. The Applicant, in oral submissions, fairly accepted that the high point of her argument as to real prejudice – other than unnecessary inconvenience - was that the email of 28 January 2020 on which she now relied in respect of Ground 4 had not been included in the electric bundle by the Respondents. It is this omission, the Applicant contended, that meant the Judge did not refer to it in his judgment. She accepted that she did not mention it in evidence, but attributed this to being flustered in having to use the electronic bundle from which this document had been (the Applicant implies) deliberately.

As I have found above, I do not consider that the 28 January 2020 email would have been material to the Judge’s finding on arrears. No prejudice was therefore caused by its absence. Equally pertinently, however, I have looked carefully through the hard copy bundle on the Court file. This email was (contrary to the Applicant’s recollection) not part of the hard copy bundle she had provided to the Court. Its absence may explain the fact that it was also not referred to in the Applicant’s original Grounds of Appeal. It is not right, therefore, that the Judge overlooked the document because of the use of an electronic bundle (and it was not cynically removed from that bundle by the Respondents). It was never part of the bundle prepared by the Applicant and provided to the Court.

The Applicant, in a second supplemental written submission served just before the hearing, raises a further complaint about a solicitor’s letter with which she contends the Respondents tampered. This allegation was based on the fact there existed two versions of an otherwise identical letter relating to sums recovered by the Respondents. This fact was a matter raised at trial, and (irrespective of bundling) both versions were put before the Judge – this can be seen from the hard copy Court file bundle into which the Judge had inserted the second version of the letter. The Judge did not refer to this issue in his judgment: a judge does not have to deal with every point raised. The Judge was entitled to conclude (as do I) that the two versions of the letter were not the result of ‘tampering’, but the fact that two versions were drafted by the solicitors and kept on file, the second version amending the first no doubt following instructions. Both versions were disclosed. This complaint does not amount to a reasonably arguable ground of appeal.

The final ground of appeal, not pressed orally, is that the Judge failed to assess the Claimant’s business losses. This is not reasonably arguable. The Claimant’s particularisation of loss of profit amounted to a single page setting out turnover and profit from April 2019 to March 2020. Notwithstanding the disclosure of other documents (none of which were marshalled or summarised in any coherent way), the Judge was clearly entitled to conclude that this was wholly inadequate to establish an actual loss of profit claim, not least during a period which almost entirely coincided with the global pandemic, lockdown and the devastating impact on businesses around the country.

It may also be noted that if, as I have found, this ground of appeal is not reasonably arguable, the lack of effective proof of loss constitutes a complete answer to the appeal. Even if the Applicant were correct in relation to any of the other grounds which go to liability, the Judge’s conclusion that the Applicant had not discharged the burden of proof in respect of loss of profit means that even if the Respondents had been in breach of the lease, the claim would still stand to have been dismissed.

For these reasons, the renewed application for permission to appeal is dismissed.