Shirlun & Anor v London Borough of Lambeth [2005] EWCA Civ 1103

B2/2004/2285, (A)&(B)[2005] EWCA Civ 1103
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HHJ COLLINS CBE)
Venue Royal Courts of JusticeDate Monday, 11th July 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE RIX
LORD JUSTICE CARNWATH
Between
MR SHIRLUN A CUMBERBATCH-v-
Between
THE LONDON BOROUGH OF LAMBETH
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS SALMA HANIF (PRO BONO) appeared for APPELLANTMR J CARPENTER (instructed by MESSRS RICKSONS) appeared for RESPONDENTS
J U D G M E N T

LORD JUSTICE RIX:

[1]This is the appeal of Mr Cumberbatch who has been in dispute with the London Borough of Lambeth, the respondent to this appeal, for some years. The case started in April 2001 when Lambeth, as I shall call the Borough Council, sued Mr Cumberbatch on a dishonoured cheque for £120. That has been dealt with by summary judgment some time ago; it was the occasion for Mr Cumberbatch to launch a counterclaim, what is now known as a part 20 claim, against Lambeth, for what the judge below, HHJ Collins CBE sitting in the Central London County Court, regarded as essentially a claim in conversion.[2]The position essentially is that back in 1997, the year in which the events of this litigation took place, Mr Cumberbatch was operating a car repair business in Brixton. He had no garage premises from which he could carry out that business and so his stock in trade, a whole series of un-roadworthy cars which he sought to put into roadworthy condition -- if necessary by cannibalising those cars -- had to be kept out on the streets. There came a time in 1997, when under the pressure of local residents, Lambeth sought to clear the streets of untaxed and unlicensed cars which were taking up room in the streets. Apparently, the evidence was that Lambeth have a general problem with such vehicles and deal with some 8,000 to 10,000 abandoned vehicles a year.[3]They have power to deal with such vehicles under the Refuse Disposal Amenity Act 1978 and the Disposal of Vehicle Regulations 1986. In essence the law permits and indeed places upon councils such as Lambeth, a duty of dealing with and disposing of abandoned vehicles. The police have similar statutory powers under the same regulations but, in their case, the power is not coupled with a duty. The statute provides that the local councils, such as Lambeth, are entitled to seize and destroy abandoned vehicles according to a certain process which requires them to label the vehicles, in effect giving notice upon them of their intention to dispose of them unless some action is taken within a limited time. In 1997, that is what both the police and Lambeth did with some 44 or so vehicles belonging, or said to belong, to Mr Cumberbatch as part of his business in Brixton.[4]Mr Cumberbatch, who originally and ultimately at trial acted as a litigant in person, during one period of the litigation when he was in hospital and the official solicitor was acting for him, had his case repleaded for him by the official solicitor. It was that repleaded case which went before the judge at trial. Mr Cumberbatch, who represented himself at trial in person, made it clear nevertheless that it was his overall case that Lambeth, together with the police and the DVLA authorities, were, in essence, deliberately and maliciously harassing him. That case failed at trial and has not been raised again on appeal.[5]In essence, what the judge held, dealing with the case as far as liability is concerned car by car, was to make findings about those cars on Mr Cumberbatch's schedule which Lambeth had removed and destroyed. His critical finding in favour of Mr Cumberbatch was that Lambeth had labelled his cars without satisfying itself that the cars were abandoned, which was the condition precedent for their power and duty to act under the statute. The judge found that Lambeth knew that the cars in question were being used by Mr Cumberbatch in the course of his business. The effect of that was that for the relevant cars, the judge found that Lambeth had acted in excess of their power under the statute and had converted and destroyed Mr Cumberbatch's vehicles. The judge made detailed findings as to the vehicles in question and, in essence, found that 18 of the listed scheduled cars had been treated in that way by Lambeth.[6]There were, in addition, a small number of extra vehicles which had begun to be treated in this way, but which Mr Cumberbatch had managed to recover from Lambeth by paying some form of release fee. So small number of vehicles had been converted unlawfully by Lambeth, but were recovered by Mr Cumberbatch.[7]There were another nine vehicles (numbered 1 to 9 on the scheduled list of vehicles) which had been taken by the police rather than by Lambeth. Mr Cumberbatch in evidence accepted that this was so, but his case was that the police had been acting in cooperation with Lambeth as part of its policy to clear the streets of cars of this kind. He therefore maintained his claim, in respect of these nine vehicles, that although they had been taken by the police rather than by Lambeth, Lambeth was a co-tortfeasor and liable to him on his part 20 claim. So far as the 18 vehicles are concerned in respect of which the judge found in Mr Cumberbatch's favour -- the judge wrongly numbered them as 19 -- the judge awarded a total of £100 damages per car, a total which ought, on the judge's logic, to have amounted to £1,800 but which he stated, for the reason I have just given, as being £1,900.[8]Mr Cumberbatch had quantified his claim in respect of these cars on his schedule by reference to what he would have been able to sell those cars for, if he had repaired them into a roadworthy condition, had been able to obtain an MOT certificate for each of them and then have sold them with a one-year guarantee. As evidence of such sale value of such repaired and roadworthy cars, Mr Cumberbatch relied upon evidence from Parker's Guide, a typical guide as to the value of used cars. Parker's Guide sets out various criteria as to the way in which their valuations are obtained. For instance, the guide distinguishes between: a "New Price", a used car in first class condition (which has done 10,000 miles or less), a "Good Average Condition" (which corresponds to a private sale of a car in good average condition, which has done approximately 10,000 miles per annum) and a "Fair Valuation" (which is described as a value for a private sale in below average condition). There is also a category of "Trade Value", which is described as a trading value (namely the price a dealer would give a customer if the latter traded in a car in good average condition, which had done approximately 10,000 miles per annum). Those are the kinds of categories of value that Parker's Guide deals with.[9]In a detailed response to Mr Cumberbatch's schedule, Lambeth set out its contentions on quantum. Its schedule began with the comment that its detailed contentions were made without prejudice to its primary submission that Mr Cumberbatch's vehicles were not in saleable condition at all. If, contrary to that primary submission, the judge were to find that vehicles were saleable and roadworthy, such as to come within any of the Parker's Guide categories, its contention was that the vehicles should be considered to have been in the "Fair" category with the appropriate valuations as stated car by car in the schedule, from which a further 25 per cent should be deducted to reflect tax which the defendant would have had to pay on any sale.[10]For example, to take the first of the numbered cars in respect of which the judge found liability to have been proved (the first of the 18 cars in question), that was a car in respect of which Mr Cumberbatch claimed a value, on the basis I have previously described, of £350 -- in respect of which Lambeth's submission was that in the event of liability being proved, only nominal damages should be awarded; but that if that argument failed, a value of £250 only was countered.[11]Most of the 18 cars in question were valued, even by Mr Cumberbatch, in sums of only a few hundred pounds from a low of £250 up to, generally speaking, £600, but there were a few exceptions: car number 16, valued by Mr Cumberbatch at £2,300, produced a counter-valuation from Lambeth of £1,550, and car 42, valued by Mr Cumberbatch at £2,100, produced a counter-valuation of £750. Despite differences in the language used in respect of individual cars itemised on the schedule, there was an overarching submission -- both in the opening paragraph of Lambeth's document dealing with quantum and again in its skeleton argument at trial -- which made it clear that any substantial value accepted or countered in respect of any car by Lambeth was subject to its overarching submission that in the absence of proof, even if the car was in saleable condition, no more than a nominal value could be placed upon it.[12]On this appeal, Mr Cumberbatch has been given permission to appeal in respect of three issues (I will also mention a cross-appeal by respondent's notice on the part of Lambeth). The three issues in respect of which Mr Cumberbatch has permission to appeal are as follows: first of all, in respect of car numbers 1 to 9, he says that the judge was wrong to state, as he did in paragraph 14 of his judgment, that there was no evidence whatsoever to support Mr Cumberbatch's claim that what the police had done was done on behalf of Lambeth. He therefore concluded, and Mr Cumberbatch complains about this, that there could be no claim against Lambeth in relation to those vehicles.[13]Now in respect of that ground of appeal, Miss Salma Hanif, who has appeared pro bono on behalf of Mr Cumberbatch and has been very helpful to the court, has pointed out that there was some evidence before the judge of a joint activity in 1997 on the part of the Metropolitan Police and Lambeth Council together. Thus she points to a letter dated 19th July 1997 from Inspector Cleave writing from Brixton Police Station to Mr Cumberbatch's MP, the Rt. Hon. Tessa Jowell, which speaks of an initial meeting that Inspector Cleave had with Mr Cumberbatch in June 1997 in which he had explained to Mr Cumberbatch, as the letter states:
"... the police and Lambeth Environmental Services were planning a joint operation to remove un-roadworthy vehicles from the streets."
That letter ended up moreover with this paragraph:
"Under our joint initiative, Lambeth Council and police intend to remove abandoned and/or un-roadworthy vehicles from Brixton on a regular basis as this has been identified in public meetings as one of the main concerns of residents."
There is a similar letter dated 8th January 1998 by Deputy Assistant Commissioner Flanders QPM, writing from the Metropolitan Police Service, 5 Area Headquarters Complaints Unit, to Mr Cumberbatch, which states:
"Over the last months Brixton Police in partnership with Lambeth Council Environmental Services have conducted a joint operation to improve the quality of life for residents of Lambeth. Part of this operation was to remove dangerous, un-roadworthy, illegal or apparently abandoned vehicles from the borough."
[14]Vehicles 1 to 9 in question, although pleaded by Mr Cumberbatch as having been taken in May 1997, emerge at trial, on the basis of good evidence, as having been taken in August 1997; a period which plainly has potential to fall within what was described in those two letters as being the joint operation or partnership between the Metropolitan Police and Lambeth. So far, Miss Hanif was able to make progress with her submission that the judge was in error in saying that there was no evidence before him whatsoever of any cooperation between the police and Lambeth. Nevertheless, on behalf of Lambeth, Mr Jamie Carpenter has been able to show the court further evidence which has made it clear that these nine vehicles had been treated differently from any of the other cars in dispute. Thus these cars alone had been removed not to Lambeth's car pound, but to the Metropolitan Police car pound. These nine vehicles alone had been removed by the police and not by Lambeth, these nine vehicles alone had issued, in respect of them, fixed penalty notices, the details of which are set out in a list of the nine vehicles in question.[15]Moreover, there was clear evidence that Lambeth's technique was to remove all vehicles which they collected from the highway to certain identified premises (see the final report of the Scrutiny Committee of Lambeth in respect of the period of July to November 1999 on the subject of abandoned vehicles). In sum, therefore, although it seems to me that the judge went too far to say that there was no evidence whatsoever of some collaboration between the Metropolitan Police and Lambeth, it does appear that these nine vehicles in question were dealt with solely by the Metropolitan Police and not by Lambeth. It may be true that both the police and Lambeth were cooperating in what might be described, at any rate at this time in 1997 -- and I have been reminded that the period in question on Mr Cumberbatch's claim extends through 1995 to 2001 -- in exercising in the police's case their power, and in Lambeth's case their duty to deal with what they considered to be abandoned vehicles.[16]The fact that both organisations may have collaborated in a joint attempt to deal with a problem that was causing concern in the local area does not mean to say that the Metropolitan Police did, while using their own powers, render Lambeth a joint tortfeasor. There is, at the end of the day, insufficient evidence that Lambeth participated in the conversion of these cars, for instance by labelling them in advance of the police's removal of them.[17]In those circumstances, it seems to me that the balance of the evidence is that if there is any responsibility in respect of cars 1 to 9, it does not fall on Lambeth as distinct from falling upon the police. I would therefore dismiss this first ground of Mr Cumberbatch's appeal.[18]Mr Cumberbatch's second ground of appeal is in respect of that small number of cars which he recovered by paying a fee of some kind for their recovery. Cars in question, and these details are helpfully agreed, are car number 10 in respect of which he paid £21.50, car number 18 in respect of which he paid £85, car number 29 in respect of which he paid £120 and car number 44 in respect of which no specific figure has been put in evidence, but I would be prepared to accept a figure of £120 as being applicable to that case too.[19]Miss Hanif's submission is quite simply that what Mr Cumberbatch had to pay in order to obtain the release of his converted vehicles was paid in mitigation of what would otherwise have been the loss and destruction of those vehicles as a whole. Mr Carpenter, on the other hand, submits that these figures should not be viewed as damages by way of mitigation for the larger loss sued upon, but as a claim for consequential loss which has never been sued upon at all. Moreover, he submits that the judge had rejected Mr Cumberbatch's much larger claims for consequential losses, amounting to something like £1 million, on the basis inter alia that it was a claim undermined by the doctrine of ex turpi causa. For the purposes of such consequential losses, the judge, in paragraph 24 of his judgment, applied a decision of this court given on 5th April 2000 in Cross v Kirby under which the principle of ex turpi causa was applied to bar a claim where the claimant could not recover unless, in effect, the court condoned his illegal conduct. The judge, speaking of the consequential loss claim, said this:
"In this case it seems to me here that this is a claim for loss of opportunity to make money out of a course of conduct which meant the repeated commission of summary offences. The court cannot condone that course of conduct by awarding damages for the loss of the opportunity to pursue it."
[20]Mr Carpenter's submission, therefore, was that these relatively small amounts -- not claimed as consequential losses but as mitigation for what would otherwise have been the total loss of vehicles in question -- were covered by the same doctrine and the same logic. It seems to me that that submission is mistaken. If, as the judge held, Mr Cumberbatch was entitled to be compensated for the conversion and destruction of his vehicles where they were destroyed, it seems to me that he was plainly entitled to be compensated for the cost of remedying their illegal taking. Indeed the levying of any such cost was itself unlawful. It seems to me that this has nothing at all to do with the doctrine of ex turpi causa, and that doctrine was not relied upon for these purposes at trial.[21]Mr Carpenter also submits that these relatively small sums were not claimed at trial. This may well be correct, they were not claimed as separate alternative amounts but they were within the claim for conversion, in respect of the vehicles in question. Namely, of the sum involved, there is undisputed evidence of the mitigation in question, save in the case of that last car (number 44). It seems to me that the fact that Mr Cumberbatch, as a litigant in person, was not adroit enough to focus on the small sums as an alternative head of claim, makes no difference to his entitlement to them. On the second ground therefore, I would find in favour of Mr Cumberbatch's appeal.[22]However, the third ground of appeal is the most significant of the three. Under this ground, Mr Cumberbatch complains about the judge's quantification of the quantum of his loss at a figure of only £100 per car. What

the judge said about this was contained in paragraph 23 of his judgment as follows:

"In the end I do not find that I have to decide that point because it seems to me that there is only one sensible conclusion I can reach on the evidence, which is that these vehicles on the evidence had nothing other than scrap value on the dates when they were uplifted. If they had the really large values put on them by Mr Cumberbatch in his second schedule I would have expected it to be worth his while to pay up and make the money, but the fact that he did not is the proof of the pudding. They simply were not worth uplifting. Mr Carpenter suggested that I should treat the value as purely nominal, £5 each. I think that would be unrealistic. They undoubtedly had a value. It is impossible to go through it on a one by one basis. I can do nothing but award damages on a very broad rough and ready basis, and I am going to award £100 damages for each car which will make a total of £1900."
[23]Miss Hanif's criticism of that package is as follows. She submits that the judge should not have ignored the figures pleaded by Mr Cumberbatch in respect of the schedule of the cars. That evidence, she submits, was supported by figures in Parker's Guide. The judge had to deal with each car one by one on its own merits. She submits that the judge was assisted in this regard by photographs of cars before him showing that they were not a matter of pure scrap. She also relied upon a reference of the judge in paragraph 22 of his judgment, where he said that:
"Parkers Guide is no guide whatsoever to the actual value of these vehicles, many of which were scrap, although it is impossible in the case of these vehicles for me to have a clear view about any of them as to what their value or condition was."
Miss Hanif submits that the judge referred only to many of the cars in question as being "scrap", as if leaving open the possibility that some should be treated as having a greater value than that.[24]Mr Carpenter, on the other hand, submits that this is simply a case in which the judge, in the absence of any evidence of the value of these cars, was in truth duty bound to award only nominal damages; that is the burden of his cross-appeal. In this respect, he relies upon what the learned editors in McGregor on Damages, 17th edition (2003) said on the subject of nominal damages at paragraphs 10-004 to 10-006. He submits furthermore that, in any event, even if the cars in question had to be valued at more than a nominal value, Mr Cumberbatch was limited to the market cost of replacing the cars in question. He submits that it was common ground at trial that there was a market value which could be put upon these cars, because Mr Cumberbatch gave evidence that he was able to buy them either in part exchange or, at times, from scrapyards, for as little as £10 per car. If, as Mr Carpenter submits, Mr Cumberbatch was able to buy such cars, that showed that there was a market in which he could buy replacements and that was the limit of his loss. However, in the absence of any detailed evidence of such a market, Mr Cumberbatch should be limited to a nominal value only.[25]It seems to me that Mr Carpenter's submissions, in relation to nominal value and the absence of market evidence, are not cogent. As far as nominal value is concerned, the learned editors of McGregor make it clear that that is a very exceptional situation for which they are able to cite only a handful of -- perhaps only two -- cases. They refer indeed to the "paucity of case law" in this respect. Of far more importance are the more general rules relating to what the learned editors call the problem of certainty (see chapter 8 at paragraph 8-001 and following), in which they discuss the well-known difficulties which the courts often have to face in the quantification of damages where the evidence of quantification of loss is not very great.[26]In my judgment, the judge was quite right to reject the submission that the car's value should be treated as purely nominal; he did that on the basis that that would be unrealistic and that the cars undoubtedly had a value. In this respect, he had in mind the evidence that Mr Cumberbatch had given him and which he sets out earlier in his judgment as to the nature of Mr Cumberbatch's business and his particular expertise in making use of what others might regard as mere junk. He was therefore entitled to find a substantial, and not merely nominal, value for the 18 cars in question. The question, however, for him was what value to put upon that substance.[27]He had, in effect, no assistance from Mr Cumberbatch who, in his evidence and in his submissions -- when repeatedly asked both in cross-examination and by the judge in the course of submissions to put forward the basis of his evidence for their value -- insisted upon his approach to that question, which was the Parker's Guide approach, on the basis that the cars in question had been restored by him to roadworthy and therefore saleable condition, with an MOT certificate and a guarantee.[28]Although the judge referred at one point to the value that he is putting upon the cars as basically scrap value, it seems to me that he was using that expression informally to contrast it with the very substantial roadworthy market valuations which Mr Cumberbatch was contending for. The judge knew that these cars to Mr Cumberbatch had a value which was greater than the junk which they may have represented to other people, less expert and adroit than he in extracting value out of them, and the judge was also, of course, conscious of the evidence that Mr Cumberbatch had given; that, at any rate, in some cases it was possible to buy cars for as little as £10 from a scrap yard. Therefore plainly what the judge was seeking to do was to put upon these cars a real and substantial value, which reflected Mr Cumberbatch's interest in them and potential expertise in dealing with them, but which, of course, would not give him value for the work which had not yet been put into them in rendering them roadworthy, saleable, MOTed, guaranteed and so forth.[29]In this situation, the judge really had to do the best he could on a very limited evidential basis. It is perfectly true that he might have attempted, at any rate in the case of one or two cars (and it is really only one or two cars) which, if they had been roadworthy, might have had a value of £1,000 or more, something in four figures. But for the great majority of the cars in question, he was dealing with cars which, even if they had been rendered into a roadworthy condition, had only a value placed upon them by Mr Cumberbatch of a few hundred pounds -- somewhere between £250 and, for the most part, £600. In those circumstances, it is no part of the business of this court to try to second-guess an experienced judge who heard all the evidence and submissions in this case over a trial lasting some four days. He accepted that what he was doing was rough and ready. The photographs that he had before him, as Mr Carpenter has pointed out, were, with two exceptions, not photographs of the cars in question. The judge was quite right to say, as he said in paragraph 22 of his judgment, that he really had no clear view about any of them as to what their condition or value was. Doing the best he could, he placed a value of £100 on each of them and, it seems to me, that sitting in this court I should be loyal to the trial judge's attempt to do the best he could on very little evidence.[30]For those reasons, I would dismiss Mr Cumberbatch's appeal on this third ground as well, although as I have already made clear I would also dismiss Lambeth's cross-appeal. In sum, I would allow this appeal on ground 2 only.[31]An issue was raised at the beginning of this appeal by Miss Hanif on behalf of Mr Cumberbatch relying upon Article 1 of the first protocol of the European Convention of Human Rights. The matter was discussed in court with the aid of her submissions but in the end she accepted that although, of course, the premise of the judge's finding at trial was that Lambeth, as a public authority, had not acted in accordance with law and therefore was not able to justify its taking of Mr Cumberbatch's property, nevertheless, the remedy under the Convention of the Human Rights Act of just compensation took the matter no further than a just and proper valuation of Mr Cumberbatch's claim for the English tort of conversion. If Mr Cumberbatch has been justly compensated for what he lost under the tort of conversion, he can have no further rights under the Human Rights Act.[32]I think that in the end, Miss Hanif quite properly accepted that position; it was, in any event, a claim not discussed before the trial judge although it may possibly have been raised at an earlier stage of Mr Cumberbatch's litigation as a whole. It was not a matter for which he had permission to appeal and therefore it seems to me that the most appropriate way to deal with this submission is to say that on the basis that it would, in any event, add nothing to Mr Cumberbatch's claim for compensation, permission to amend the notice of appeal to include this point should not be granted.

LORD JUSTICE CARNWATH: I agree.

LORD JUSTICE RIX: Following judgment, the submission has been made by Miss Hanif, on behalf of Mr Cumberbatch, that the judge's Costs Order at trial -- which was to make no order as to costs up to the time that Lambeth made a payment in and thereafter to award costs to Lambeth -- was unfair to Mr Cumberbatch in that the judge should have made a greater allowance for Mr Cumberbatch's success on the question of liability in respect, at any rate, of 18 out of the greater number of cars claimed for.

[35]However, it seems to me that the judge was entitled to take the view that at least half of the trial had been taken up by issues upon which Mr Cumberbatch had failed and that, given the failure of his million pound claim, reduced to recovery of only £1,900 (as the judge awarded it) and given the fact that even in respect of liability, Mr Cumberbatch succeeded on only 18 out of the 44 cars claimed for, it was a fair disposition of the issue of costs up to the time of payment in to say that no order for costs should be made. It seems to me that this court cannot second-guess the trial judge in such a situation following a five-day trial which produced a recovery of only £1,900.[36]I would therefore dismiss this ground of appeal regarding costs.

LORD JUSTICE CARNWATH: I agree.

LORD JUSTICE RIX:

[38]On the question of costs of this appeal, it seems to me that Mr Carpenter is right to point out that Mr Cumberbatch has failed to beat the part 36 offer made on 16th March 2005 of £4,000 inclusive of interest and costs and that therefore Mr Cumberbatch should be liable to pay Lambeth's costs from 6th April 2005. Lambeth accepts that Mr Cumberbatch should have his costs, which will have to be assessed on the litigant in person basis, up to that date, 6th April 2005, and Lambeth also accepts that those costs should be set off against his liability for costs in these proceedings.[39]Mr Cumberbatch instructs counsel that he has judgments against Lambeth in other cases. This is not accepted by Mr Carpenter on behalf of Lambeth, and that position may therefore be in issue. We are certainly in no position to make an order that the value of those judgments, whatever they may be, should be set off against Mr Cumberbatch's liability to Lambeth in these proceedings, nor indeed to make any order in respect of making execution, in some way, dependent upon the position in those other cases. We can say, however, that if it transpires that Lambeth does have a liability or liabilities to Mr Cumberbatch in other proceedings, then, as Mr Carpenter accepts, the sensible thing to do is to set off liability against liability so that execution will only take place for the balance sum.[40]In these circumstances, it seems to me that there is no further order that we should make.

Order

Appeal allowed on Ground 2 only. Permission to amend the notice of appeal refused. Ground of appeal regarding costs dismissed. No further costs order.