Townsend & Anor v Achilleas [2000] EWCA Civ 210

EWCA-Civ
Townsend & Anor v Achilleas
[2000] EWCA Civ 210 · 1995-01-07
Case No: A2/1999/0046 + A2/1998/7467 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QUEEN'S BENCH DIVISION TECHNOLOGY & CONSTRUCTION COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 6th July, 2000 B e f o r e : LORD JUSTICE WARD LORD JUSTICE SCHIEMANN and LORD JUSTICE MUMMERY - - - - - - - - - - - - - - - - - - - - -(1) MARIA DOLORES TOWNSEND(2) BEVERLEY ANN KING Appellant - and - GEORGE NICOLAS ACHILLEAS Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street London EC4A 2HD Tel No: 0171 421 4040, Fax No: 0171 831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Roger Bartlett (instructed by Messrs ProtoPapas, Tottenham Court Road, London for the Appellant) Mr William Geldart (instructed by Messrs Garfinkel & Co, 3A Blackstone Road, Finsbury Park, London, N4 2JF for the Respondent) - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown Copyright © LORD JUSTICE MUMMERY: This appeal is against two decisions of HHJ Thornton QC (sitting as an Official Referee) in an action by Ms Townsend against her former landlord, Mr Achilleas, for the loss of uninsured personal possessions in a fire occurring late in the afternoon on 7 January 1995 at 90 Sutton Road, Muswell Hill, London N10. Ms Townsend was a tenant of the property under a shorthold assured tenancy agreement of 12 December 1994. Her claim was made under section 11 of the Landlord and Tenant Act 1985 and section 4 of the Defective Premises Act 1972 On 12 February 1998 judgment was given against Mr Achilleas for £31,589 by way of damages, together with interest of £8,019.77 and costs. Both sides were legally aided. He appeals against that decision with the permission of this court. Both sides are legally aided on the appeal. He also appeals against the decision of the same judge on 9 October 1998 refusing an application by Mr Achilleas to re-open the case and direct a retrial on the ground that fresh evidence had come to light after judgment but before the order was perfected. An application to this court for permission to adduce the further evidence was adjourned to the hearing of the appeal. The Trial At the trial on 10 and 11 February 1998 evidence was given by Ms Townsend and her son Lee. He was a 15 year old schoolboy at the date of the fire. (He is now a 20 year old apprentice carpenter.) The fire started in his bedroom on the ground floor of the property. There was electrical distribution apparatus, including a fuse box, in a built-in alcove cupboard near the window in his room. The walls of his room were covered with posters fixed with Blue Tac. The ceiling was covered with polystyrene tiles. Expert evidence was given on Ms Townsend's behalf by Dr Andrew Moncrieff, a fire expert. He believed that the electrical installations in the property were a possible cause of the fire, but it was "not possible to express an opinion on the precise cause of the fire." His opinion, based on Lee's evidence, was that it was more likely that "the fire started in the area of the distribution equipment." Mr Achilleas gave evidence. His fire expert was Mr Henry Bland. He accepted as a possibility that a fire could have started in the cupboard, but he did not think that that was what had happened. His view was that the available evidence "strongly indicates an outbreak of fire in or very near a plastic unit near to Lee Townsend's bed and outside the scope of the electricity supply under the control of Mr Achilleas." His evidence was that if the fire had started in the area of the distribution equipment Lee would have woken up coughing at an earlier stage and not, as Lee said , with a violent fire at the side of his bed and with his hair singeing. It was common ground between the two experts that there were three possible sources of the fire:-[1]A defect in the supply system at any point from the sockets back to the main fuse linking to the external source of supply;[2]A defect in a plug or electrical apparatus plugged into the system;[3]A naked source of flame in Lee's room, such as a cigarette, match or other source of intense heat created by Lee. The judge considered in detail the evidence of the possible sources and causes of the fire. He formed the view that Lee gave his evidence "fairly and moderately" and without exaggeration. According to Lee the fire, including a thin line of fire tinted a greeny colour, spread rapidly across the floor from the alcove towards a small plastic Coca Cola unit by his bed. When he woke up his hair was burning. The fire spread extremely rapidly. He saw his posters catch alight. There was fire in or behind the small plastic unit by his bed. His deodorant sprays started to explode. The judge accepted Lee's evidence that he was not a smoker at the time, though he now smokes occasionally, and that he was not smoking in his room that afternoon. This evidence was challenged by Mr Achilleas. He said that he had seen Lee smoking with his friends on several occasions. The judge also held that there was no evidence to suggest that the source of the fire was a plug in a socket in the room or any apparatus or electrically powered object in the room. The judge thus proceeded to exclude two possible causes of the fire-the electrical apparatus for lack of evidence and a naked flame on the basis that he accepted Lee's evidence. He concluded that, on the balance of probabilities, "the source of the fire was some point in the electrical distribution system." The judge held that the fire had been caused by an electrical fault in the distribution system; that it broke out Lee's bedroom while he was asleep in bed; that the electrical installations in the property at the date of the tenancy were not in proper working order; that Mr Achilleas was aware that there were deficiencies following complaints reported by Ms Townsend and her co-tenant, Ms King, to him and his letting agent (Mr Christodoulou) before Christmas 1994 ( difficulty in inserting plugs, electrical cabling hanging loose and difficulties with loose switches); that he had failed to take reasonable steps to repair and keep in proper working order the electricity installation in a reasonable time; and that, if he had called the electrician promptly, the defect which caused the fire would have been remedied. There was a breach of the implied covenant to keep the electrical installation in the property in repair and proper working order and the duty of care imposed in respect of defects in the premises by the relevant statutory provisions. Grounds of Appeal Mr Bartlett, on behalf of Mr Achilleas, challenges the judge's finding on causation on the ground that it was not reasonably open to him on the evidence. It was unsatisfactory and should not be allowed to stand. He submits that it is extremely improbable that the electrical distribution box was the cause of the fire. The judge ought to have held that Ms Townsend had not proved that the fire happened in that way. Mr Bartlett contends that the weight of the evidence suggests that the fire started on the opposite side of the room from the fuse box i.e in the vicinity of the bedside unit; that the fire had broken out in a sudden fierce manner which was not characteristic of a fire caused by an electrical fault of the kind proposed; that scientific investigation of the fuse box did not show any sign of damage indicating that the fire had started there; and that, if there was an electrical fault, there would have been a gradual build up of heat and smoke which would have caused Lee to wake up much sooner than he did. All these difficulties were removed, however, if the cause of the fire was something done by Lee in his room with a naked flame. Mr Bartlett also seeks to rely on fresh evidence indicating that the cause of the fire was a naked flame in Lee's room. The evidence is in the form of an affidavit sworn on 3 June 1998 by Mr Andonis Kalogirou. He is 20 years old and is an apprentice garage mechanic. He was a school friend of Lee at Friern Barnet County School at the time of the fire. He has known him since they were at primary school together. He has not seen him since he left school. He submits that the judge was wrong to refuse to admit the fresh evidence at the hearing on 9 October 1998 before the order was perfected, that this court should admit it and that, on the strength of it, this court should direct a re-trial of the causation issue by a different judge. The Fresh Evidence. In summary the proposed evidence proposed to be adduced from Mr Kalogirou is that(1) Lee was a smoker at school during the lunch hour and at break. This was denied by Lee at the trial and the judge believed him;(2) Lee used to have a throwaway lighter;(3) In January 1995 Lee boasted in the school playground about being able to claim things for his friends from an insurance company following a fire at his house and claims by his family;(4) He was making a list of things to claim and he asked his friends if they wanted him to put anything down so that he could get it for them from the insurance company;(5) He asked Lee how the fire started and Lee said that his Lynx deodorant spray was on top of his radiator in his bedroom and it exploded causing the fire and that was why his family were making an insurance claim;(6) Some pupils at the school would set fire to deodorant sprays in order to show off. This evidence was obtained by the solicitor for Mr Achilleas following a chance conversation between Mr Kalogirou and Mr Achilleas at the garage where Mr Kalogirou works. Mr Achilleas, who had never met Mr Kalogirou before, walked into the garage in about the middle of May 1998 and asked him to help push his car, which would not start, into a nearby yard. In the conversation which followed Mr Achilleas told him the story of his court case. Mr Kalogirou realised that he was familiar with some of the events and told him what he knew about Lee. In a second judgment on 9 October 1998 the judge held that the effect of the authorities cited to him ( Re Barrell Enterprises [1973] 1 WLR 19 and Pittalis v. Sherefettin [1986] QB 868) was that he should not consider the admission of the fresh evidence on the Ladd v. Marshall principles applicable to fresh evidence on appeals. The appropriate test or approach was stricter than Ladd v Marshall: there had to be "exceptional circumstances" to justify a trial judge allowing further evidence to be called after judgment and reopening the trial. He decided that there were no "exceptional circumstances" in this case. He also held that, even on the Ladd v. Marshall criteria, the fresh evidence should not be admitted. He said that the material sought to be adduced could have been obtained with reasonable diligence for use at the trial. He observed that there was no evidence as to the steps taken by the solicitors for Mr Achilleas to obtain evidence of Lee's smoking habits, although it was clear before the trial that there was a dispute on the evidence about that. It was open to them to have explored this further. This was also the case with the suggestion that the ignition of the deodorant spray was the cause of the fire. The possibility that the fire was caused by a naked flame was one of the issues at the trial. The judge expressed doubts on the second limb of Ladd v. Marshall as to whether the fresh evidence would have had an important influence on the result of the case. Mr Bartlett submits that the judge applied the wrong test. The correct test, as recently laid down by Neuberger J in Charlesworth v. Relay Roads Ltd [2000] 1 WLR 230, is more flexible and not, as the judge held, more restrictive than Ladd v. Marshall. The judge asked himself the wrong question. Mr Bartlett contends that in any case the new evidence satisfies all three criteria in Ladd v. Marshall. It could not have been discovered earlier with reasonable diligence for use at the trial. It was discovered by mere chance. The new witness knew nothing of the litigation. The legal advisers of Mr Achilleas did not know of the existence of Mr Kalogirou or of the evidence that he or any other witness might give. It was unreasonable to expect the solicitors to make wide ranging inquiries into Lee's background. Further there was nothing to cast any doubt on the credibility of the new witness. It was highly likely that Lee would have discussed the fire with his school friends at the time. There was no reason to suppose that the evidence was invented. It would probably have an important influence on the result of the case and, in particular, on the judge's assessment of Lee's evidence. Conclusion I would allow this appeal and direct a new trial of the causation issue by a different judge . On the evidence available at the trial the judge was entitled to conclude that the fire was not caused by Lee whose evidence he accepted in its entirety. That led him to exclude a naked flame as the cause of the fire. He was also entitled to exclude electrical apparatus as the cause of the fire. There was no evidence that it was the cause. The judge did not, however, simply follow a process of elimination in order to arrive at the conclusion that the electrical installation was to blame. He reached that decision by applying the civil standard of the balance of probabilities to all the evidence in the case, including evidence of defects in the installation of electricity in the property. In the absence of the fresh evidence I would have dismissed the appeal from the award of damages. The nature of the fresh evidence and the circumstances in which it came to light raise troubling questions. The decision whether to admit or exclude new evidence after judgment involves an anxious balancing exercise. On the one hand, there is a public interest in finality of litigation. It would be unjust if, without good reason, a litigant was deprived of the benefit of a judgment to which he was entitled according to the evidence heard by the trial judge before judgment. But, on the other hand, there are cases in which the interests of justice would be served by receiving fresh evidence after judgment either by the trial judge, if it is discovered before his order is perfected, or on appeal. This trial took place and the application for permission to adduce fresh evidence was made to the trial judge when the Rules of the Supreme Court were still in force. The approach under those Rules was memorably expounded by Denning LJ in Ladd v. Marshall [1954] 1 WLR 1489 at 1491 " It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied where fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible." The basis of the application to the trial judge in this case was that the new evidence indicates that Lee Townsend had told lies to the trial judge who believed him and accordingly ruled out Lee's actions as a possible cause of the fire. Lord Denning stated that the three criteria "always applied where fresh evidence is sought to be introduced." He drew no distinction between the approach to such an application to a trial judge after judgment, but before his order is perfected, and the approach on a similar application to the Court of Appeal. The judge took a different approach. In his view the fresh evidence could only be adduced in "exceptional circumstances" and there were none. He applied a stricter test than the Ladd v. Marshall . In principle, however, it is difficult to see why there should be a more restrictive test for the reception of fresh evidence by the judge who has tried the case than would be applied by the Court of Appeal on an appeal from the judge. Indeed, there is a good case for the cautious application of a slightly more flexible test for the reasons given by Neuberger J in Charlesworth v. Relay Roads Ltd (supra) at 238 B-H. The trial judge would have the advantage over the Court of Appeal of having seen the witnesses. He would be in a better position to look at the evidence as a whole closer to the trial. In that way it might be possible to avoid the risk of the Court of Appeal having to inflict on the parties the expense and delay consequent on ordering a retrial by a different judge at a much later date. I agree with Mr Bartlett that the approach of the judge to the fresh evidence in this case was wrong. It does not follow, however, that this court should reverse the decision of the judge and grant permission for the fresh evidence to be adduced. The judge expressly held that this fresh evidence could have been obtained with reasonable diligence for use at the trial. For that reason he would not have exercised his discretion to admit it. This court would not normally interfere with the exercise of his discretion unless it was plainly wrong. As Schiemann LJ pointed out in argument the position on the appeal to this court is that the Civil Procedure Rules apply: Biguzzi v. Rank Leisure PLC [1999] 1 WLR 1926; Stewart v. Engel (Court of Appeal Transcript 17 May, 2000). Although counsel only addressed the court on the criteria in Ladd v. Marshall, it should be noted that Part 52, which came into force on 2 May 2000, has replaced Order 59 of the Rules of the Supreme Court which provided in Rule 10 (2) that ".....in the case of an appeal from a judgment after trial.....no such further evidence [on questions of fact ] shall be admitted except on special grounds." Rule 52.11 CPR now provides that " (2) Unless it orders otherwise, the appeal court will not receive- (a) oral evidence; or (b) evidence which was not before the lower court." In the exercise of the general power to receive fresh evidence under this rule the court must seek to give effect to the overriding objective of enabling the court to deal with the case justly: rule 1.1 and 1.2. The proper application of the overriding objective justifies the court in setting stringent limits to the re-opening of issues after the judge has delivered final judgment in an action: Stewart v. Engel (supra), a very recent decision of this court on the power of the court under the Civil Procedure Rules to permit amendment of pleadings after the delivery of judgment and before the order is perfected. The power is to be exercised "very cautiously and sparingly" in accordance with the overriding objective. Litigants are not be allowed "unlimited bites at the cherry", in the words of Sir Christopher Slade. In the exercise of this court's discretion I would place particular importance on each of the three criteria identified in Ladd v. Marshall, even though that decision is not an authority on the interpretation and application of the Civil Procedure Rules. I would also take into account the consequence of admitting the fresh evidence. There would have to be a re-trial involving further expense and additional delay in the resolution of a dispute arising out of events which took place more than five years ago. If Ms Townsend succeeded in holding the judgment in her favour, she could obtain a charge on the property for the damages, though not for the costs which would be substantially increased by a retrial. The damages recovered by her would be subject to a statutory charge in favour of the Legal Aid Fund for her costs of the action. If Mr Achilleas succeeded on the retrial his costs would probably not be recovered by the Legal Aid Fund from Ms Townsend who has no substantial assets of her own. In my judgment the critical question is whether the fresh evidence could have been obtained with reasonable diligence for use at the trial. If it could have been obtained, as the judge thought it could have been, I would not grant permission for it to be adduced in evidence. There is no evidence that Mr Achilleas or his solicitors made any attempt to obtain evidence from the neighbours, from friends or from the school to support the allegation by Mr Achilleas that Lee was a smoker. As Mr Geldart pointed out on behalf of Ms Townsend the contention that the fire was caused by a naked flame was always part of the defence. It was known that Lee was at school. Mr Achilleas alleged that he had seen Lee smoking in the company of friends and that Lee denied smoking. Mr Geldart submitted that reasonable inquiries to elicit material to discredit Lee at the trial had not been made. I have found this a difficult point. In the end I think that Mr Bartlett is probably right. The fresh evidence from Mr Kalogirou has come to light in a highly unusual way. Mr Achilleas had a chance meeting and conversation with him. It is such a coincidence that Mr Geldart was sceptical about it, though he had no evidence to suggest that the meeting and the conversation did not take place as alleged. Before the meeting neither Mr Achilleas nor his solicitors knew of the existence of Mr Kalogirou, let alone that he could give relevant evidence of his knowledge of Lee at the time of the fire. It was not reasonable to expect wide ranging and costly general inquiries to be made into Lee's background and activities without having more to go on. Even if inquiries had been made at Lee's school the present evidence does not demonstrate that Mr Kalogirou would have been found to give this evidence at the trial. The evidence of Mr Kalogirou is apparently credible and, if believed, it would probably have an important influence on the result of the case. It might well lead a court to take a different view of Lee's evidence about the fire. If Lee's evidence were rejected a naked flame in his room would not be eliminated as a possible cause of the fire and might even be held to have been the probable cause of the fire. I would accordingly allow the appeal, grant permission to adduce the affidavit of Mr Kalogirou in evidence (subject to any directions as to cross examination) and direct a retrial of the causation issue by a different judge. Lord Justice Schiemann - 1 agree. Lord Justice Ward - I also agree.

Order

Appeal allowed with costs. Judgment in favour of first claimant, dismissal of second claimant's stands. Retrial on issue of causation before a new judge. Legal Services Commission Funding Assessment of Respondent's costs. (Order does not form part of the approved judgment.)

Cited in 1 later judgment