Kani v London Borough of Barnet [2010] EWCA Civ 818

Case No B2/2009/1649[2010] EWCA Civ 818
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL
LONDON COUNTY COURT
Mr Recorder Francis QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/07/2010
Before
LORD JUSTICE WARDLORD JUSTICE TOULSONLADY JUSTICE BLACK
Between
Mr Amir KANIAppellantLondon Borough of BarnetRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Amir Kani (in person) for AppellantMr Josef Cannon (instructed by Barnet Council Legal Services Dept) for RespondentHearing Hearing dates : 14th June 2010
Judgment
[1]The appellant is a dealer in used cars. He was in the habit of parking large numbers of vehicles in Macaret Close where he lived, and in the surrounding streets. This annoyed and inconvenienced other residents. They complained to the respondent local authority who commenced proceedings against the appellant under s 222 Local Government Act 1972 for an anti-social behaviour order. That application, together with various ancillary claims by the respondents and counterclaims by the appellant, came before Mr Recorder Francis QC in the Central London County Court and culminated in an order dated 9 July 2009. A central feature of the relief granted was a five year anti-social behaviour order restraining the appellant from the sort of parking that had been troublesome to the other residents and from trading in vehicles from any residential property in the London Borough of Barnet. The appellant does not appeal against that order; his appeal concerns the Recorder’s treatment of his counter-claim for damages against the respondents.[2]In the course of investigating and dealing with the issues relating to the appellant’s conduct, on 9 July 2008 the respondents seized 17 cars from round and about the appellant’s house; documentation relating to vehicles was also seized. The appellant did not get the cars back until, it appears, some time towards the end of October 2008 and he therefore claimed damages for unlawful seizure and detention of the vehicles. Furthermore, a large proportion of the vehicles had suffered damage whilst in the respondents’ custody and he claimed damages for the cost of repairing them.[3]The Recorder accepted that the appellant had a valid claim for damages in relation to certain of the cars and awarded him £3,213.66, which was what he found to be the cost of repairing damage caused to those cars plus the cost associated with retrieving them.[4]The appellant, who appears in person before us although he was represented in the court below, argues that the award of damages was too low. He was initially given permission to appeal on the papers by Sir Richard Buxton but only in relation to one of his several proposed grounds of appeal. He renewed his application orally to Lord Justice Jacob and was given permission to advance four further grounds of appeal which have accordingly been argued before us. The five grounds are conveniently collected together in summary form in the respondent’s skeleton argument and I will refer to them as this judgment proceeds. In order to understand them, however, one needs to have some understanding of the factual background and of what the Recorder found.[5]In seizing the seventeen cars removed from Macaret Close and the surrounding area, the respondent local authority relied on two bases. Three of the vehicles were removed in reliance on s 3 Refuse Disposal (Amenity) Act 1978 on the basis that they were abandoned. The remaining fourteen vehicles were removed in reliance on s 38 London Local Authorities Act 1990 which is concerned with unauthorised street trading.[6]The Recorder found that the three vehicles which were removed as abandoned had been unlawfully removed. S 3(1) of the 1978 Act provides, “Where it appears to a local authority that a motor vehicle in their area is abandoned without lawful authority on any land in the open air or on any other land forming part of a highway, it shall be the duty of the authority, subject to the following provisions of this section, to remove the vehicle.” The Recorder found that it did not appear to the respondent local authority that the three vehicles had been abandoned and that they should not, therefore, have been removed. It followed that the respondents were liable to the appellant for any damage he may have suffered from their wrongful removal and detention.[7]In contrast, the Recorder found that the fourteen cars removed under the 1990 Act had been lawfully removed, accepting that the local authority had reasonable grounds to suspect that an offence of street trading without a licence had been committed and that the vehicles were seized (in accordance with s 38(4) of the Act) because they may be required to be used in evidence in any proceedings in respect of that offence.[8]The cars which had suffered damage in the respondents’ custody included cars from both categories: those taken under the 1978 Act, unlawfully as it turned out, and those taken lawfully under the 1990 Act. The Recorder awarded the appellant the cost of making good the damage in relation to the cars taken under the 1978 Act but not those taken under the 1990 Act, with which he did not deal at all in his judgment. The ground of appeal for which permission was granted by Sir Richard Buxton was that he was wrong not to award anything in relation to cars taken under the 1990 Act. The respondents recognise the validity of the appellant’s argument that compensation should have been awarded for the damage to both categories of cars and that the Recorder should have evaluated the respondent’s claim for the costs of rectifying the damage to the cars removed under the 1990 Act. The appellant would like the claim to be determined by this court but the respondents rightly point out that there is not the evidence available for that exercise. They invite us to remit the question for determination in the county court and we intend to do that.[9]The appellant has permission to advance two further grounds of appeal in relation to the fourteen cars removed under the 1990 Act. Both of these relate to whether/when the respondents complied with their duty to return the vehicles to the appellant. The first such ground is that the Recorder was wrong to hold that a letter dated 3 September 2008 from the respondents to the appellant was sufficient to amount to a return of the vehicles. The second is that the Recorder took the wrong approach to the question of the date on which the return of the vehicles was due, wrongly concluding that a return on 3 September 2008 was within the required time limits.[10]The 3 September letter said, amongst other things:
“In order to release the vehicles, please; • Confirm your ownership of the vehicles • Provide documentary evidence of ownership of the above vehicles • Confirm that you will collect these vehicles from our car pound, located in Tottenham” • Confirm your ownership of the vehicles • Provide documentary evidence of ownership of the above vehicles • Confirm that you will collect these vehicles from our car pound, located in Tottenham”
[11]The letter also claimed the costs said to have been incurred by the respondents in removing and storing the cars, in the sum of just over £10,000. It asked the appellant to make out his cheque for the costs to the council and said that if the costs were not paid, they would be added to the pending county court claim. They were not paid, and in due course wereindeed claimed in the county court, although by the time of the hearing before the Recorder, the respondents had confined their demand to charges in relation to the three vehicles removed under the 1978 Act, which they ultimately failed to recover because of the Recorder’s finding that the vehicles had been removed unlawfully.[12]The appellant complains that the council knew he was the owner of the cars and already had the documentary evidence of ownership that they asked him to produce, having seized the relevant materials along with the cars, and should not have sought that sort of material from him. In so doing, they were imposing a condition upon the return of the vehicles which it was impossible for him to fulfil. This meant that the letter could not amount to a return of the cars.[13]For the respondents, Mr Cannon accepts that it was regrettable that the letter asked for the production of documentation which, in relation to some of the vehicles, the respondents already had in their possession. In oral submissions, he realistically conceded that in this respect the letter was “silly”. However, he submits that this was not sufficient to render the letter ineffective as a return of the vehicles. It was, he submits, an attempt made in good faith to return the vehicles to the appellant.[14]Mr Cannon also points out that the appellant’s present argument is not one that was advanced before the Recorder. At that stage, the respondents say, the appellant was concentrating on an argument that “return” of the vehicles meant actual physical return to him. The Recorder’s judgment is a very careful one and clearly the product of much painstaking work and it reflects what the respondents say in this respect, as can be seen from paragraphs 12.10 to 12.13.[15]In my view, the letter of 3 September should have been treated by the appellant as an attempt to return the vehicles and accepted as an invitation to present himself, or to open a dialogue, with a view to getting his vehicles back. He was not entitled simply to dismiss it as insufficient to amount to a return and then to claim damages for the wrongful detention of his cars during the period which followed.[16]A consequence of the appellant’s present argument not having been advanced before the Recorder is that the respondents had no chance to adduce and explore such evidence as may have been relevant to it, for example by way of cross-examination of the appellant with a view to arguing either that, by virtue of his inactivity he was the author of his own misfortune in relation to the continued detention of the vehicles or, alternatively, that he had failed to mitigate his loss by approaching the council promptly on the issue.[17]The appellant now tells us that there was a dialogue with the council in an attempt to arrange a return of the vehicles. He refers us to one document which was in the papers for the hearing before the Recorder. This is a letter from his solicitors to the respondents requesting the return of documents relating to seized vehicles but it dates from 22 October 2008, which is right at the end of the period during which the respondents had the vehicles in their custody. This letter at such a late stage in the period of detention does not really advance the appellant’s case and we were not taken to or provided with any records of earlier overtures. In this respect, we were in much the same position as the Recorder who says, at paragraph 12.7 of his judgment, that he had seen no explanation as to what may have occurred in relation to the return of the vehicles between September and the end of October. In the circumstances, the Recorder was entitled to proceed upon the basis that the letter itself constituted a return of the vehicles and their continuing detention from 3 September onwards resulted from the omissions of the appellant rather than any failure by the council and could not give rise to any valid claim for damages for wrongful detention.[18]As I understand it, the appellant also criticises the letter because he says that it made the return of the vehicles conditional upon payment of storage and other costs. That argument does not get off the ground. The letter is quite clear in saying that if those costs were not paid, the consequence would be that they would be added to the county court claim, not that the cars would be detained. That is exactly what happened; when the council’s demand for payment was not met, the cars were returned, and the monies were claimed by the council in these proceedings.[19]I turn to consider the appellant’s argument that the Recorder took the wrong date as the date by which the vehicles had to be returned and should have found that they were due to be returned before 3 September. This revolves around the request by the respondents for information from the DVLC.[20]S 38(4C) of the 1990 Act sets out the council’s general duties in relation to the handling of seized items. S 38(4C)(e) provides “If no proceedings are instituted before the expiration of a period of 28 days beginning with the date of seizure, or any proceedings instituted within that period are discontinued, at the expiration of that period or, as the case may be, on the discontinuance of the proceedings, the article or thing shall be returned to the person from whom it was seized unless it has not proved possible, after diligent enquiry to identify that person or ascertain his address.”[21]However, s 38(4C) begins with these words:
“Subject to section 38B (motor vehicles) of this Act, the following provisions of this subsection shall have effect ….” and s 38B reads: “(1) Subsection (4) below applies where the following conditions are met. (2) The first condition is that where, in ascertaining the identity of the person from whom a vehicle was seized under subsection (4) or (4A) of section 38 (unlicensed street trading) of this Act, a borough council has, before the expiry of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars. (3) The second condition is that those particulars have not been supplied to the council before the date after which that council would, but for this section, have to return the vehicle in accordance with subsection (4C)(e) of that section. (4) Where this subsection applies, the council must return the vehicle to its owner if— (a) no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or (b) any such proceedings instituted within that period are discontinued, at the expiry of that period or on the discontinuance of the proceedings, as the case may be. (5) [Not relevant] (6) In this section, "relevant particulars" are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994 (c 22). (7) The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept. (8) In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the Vehicle Excise and Registration Act 1994.”
[22]On 14 July 2008, well before the expiry of 14 days from the date of seizure of the vehicles, the respondents made a request to the Secretary of State (in the form of the DVLA) for particulars relating to the owner of the vehicles.[23]The appellant argues that they had no need to do this and should not have done so as they knew he owned the cars. Therefore, he says, s 38B has nothing to do with the case and the question of the timing of return was governed exclusively by s 38(4C) which obliged the respondents to return the vehicles in the first week of August 2008. This is not a ground of appeal for which permission was granted nor does it appear that it was explored in the county court before the Recorder either in argument or in evidence, for example with a view to the ground being laid in cross-examination of council witnesses. It is, furthermore, an argument without merit. S 38B does not prescribe the circumstances in which a borough council is entitled to make a request to the Secretary of State for the supply of relevant particulars, except that in so doing, they must be engaged in ascertaining the identity of the person from whom the vehicle was seized. It must be borne in mind that councils might very easily incur liability if they were to return seized vehicles to the wrong person in error. Consulting the DVLA is the time honoured way of confirming who owns a vehicle and it would be wrong to take a restrictive view of s 38B so as to deprive a council in circumstances such as those that arose in this case of the opportunity to safeguard its position in this way. Far from being irrelevant, therefore, s 38B is at the heart of the issue as to the date by which the cars should have been returned.[24]The first condition in s 38B (set out in s 38B(2)) was met by virtue of the respondents’ request to the DVLA on 14 July 2008.[25]The second condition, set out in s 38B(3), is that the particulars have not been supplied to the council before the date after which the council would, but for s38B, have had to return the vehicle. There is an issue about the precise date on which the particulars were supplied to the council, to which I will return, but they were certainly not supplied before 7 August 2008, that being the date on the documents generated by the DVLA in relation to the vehicles. Accordingly, the particulars could not have been supplied to the council by the date after which they were obliged otherwise to have returned the vehicles. It follows that the second condition was also satisfied.[26]The two s 38B conditions having been met, it follows that the time for the return of the vehicles was governed by s 38B(4) rather than the general duty in s 38(4C)(e).[27]s 38B(4) requires return before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied by the DVLA. The Recorder received evidence from Mr Davies of the council who said that the particulars were received on or around the 21 August 2008. He records in his judgment:
“The information print outs [from the DVLA] appear to be dated 7th August but Mr Davies was not challenged on the date the Council received the information and I accept his evidence as to the date.”
[28]The appellant drew our attention to material which he said demonstrated that the particulars were supplied no later than 11 August 2008. This was, firstly, a date stamp, to be found at the top corner of one of the DVLA enquiry forms filled in by the council to request details of ownership of vehicles there listed, which says “Received 11 Aug 2008” and secondly, the statement in the respondents’ Particulars of Claim at paragraph 7.13 that “[o]n or around 11 August 2008 the Claimant received a response from the DVLA…”. He argued that in the light of this material, it was not open to the Recorder to accept Mr Davies’ account.[29]The difficulty with this line of argument is that the time to explore this issue was during the oral evidence before the Recorder whereas, if the Recorder is correct, the evidence of Mr Davies as to the date for the receipt of the material from the DVLA was unchallenged. The appellant said that the Recorder was wrong about this and Mr Davies was challenged in evidence. In part he based this on the fact that he had joined issue on the question of the date of receipt in his own statement in the proceedings, taking us to a rather broadly drafted passage in that statement at p 365 in the trial bundle. However, even if this passage had been in rather more specific terms, it would not, without more, have amounted to an effective challenge to Mr Davies’ evidence. If Mr Davies’ evidence as to the date of receipt was disputed, the matters which pointed to earlier receipt had to be put to him in the witness box. The appellant told us that Mr Davies was cross examined on the subject and referred, in court, to a notebook in which he apparently had some notes of the evidence. No enquiries had been made of the trial court to see whether there was a recording of the proceedings which could be transcribed and no attempt had been made to agree notes of evidence with the respondents’ representatives or to have a note of evidence approved by the Recorder. Furthermore, the page references which the appellant read from his notebook as being the material in the bundle which was put to Mr Davies did not seem to amount to an exploration of the issue of the date of receipt of the particulars from the DVLA. In all the circumstances, there is therefore no proper basis upon which to doubt the Recorder’s statement that Mr Davies was unchallenged.[30]There is no basis, either, to disrupt the Recorder’s acceptance of Mr Davies’ evidence. The Recorder’s reference in his judgment to the print outs being dated 7 August shows that he was plainly alive to existence of material that might have suggested an earlier receipt than Mr Davies asserted and he clearly approached Mr Davies’ evidence with this in mind. Furthermore, the significance of the date stamp of 11 August 2008 is by no means self-evident.[31]The final topic upon which the appellant has permission to appeal is that of the assessment of damages for the unlawful seizure and detention of the three vehicles seized unlawfully under the 1978 Act.[32]The Recorder dealt with this issue in his paragraph 13. The appellant’s then counsel had indicated that the appellant’s “outrage at his treatment ha[d] not led him to under-estimate his losses” and counsel had prudently abandoned certain heads of loss as the Recorder sets out. The Recorder dealt with the remainder of the damages claim however. He said, in paragraph 13.9 that the measure of damages for unlawful interference with goods where the owner is permanently deprived of them is normally the market value of the goods, but that where, as here, goods are returned after a period of wrongful detention, there is no universally applicable rule for assessing damages. He rightly cites Brandeis Goldschmidt & Co v Western Transport [1981] QB 864 which is authority for the proposition that, in such circumstances, the claimant is entitled to recover damages only for losses which are proved, by the claimant, to have resulted from the detention of the goods in question.[33]The appellant’s claim for damages was based on a fall in the value of the cars between the time when they were seized and the time when he got them back. The Recorder did his best to examine the claim though he commented on the fact that the evidence in support of it was “sparse to say the least”. It was not covered in the appellant’s witness statement and took the form of schedules, verified in oral evidence, which the appellant said he had taken from Parker’s Guide. He was not cross-examined about this but the council made final submissions to the effect that the Parker’s Guide figures were not the same as those that had been produced by the appellant in the parallel Proceeds of Crime Act application which had been proceeding in the Crown Court. The figures used there apparently came from wisebuyer.com and gave lower values for the cars at the time of seizure than the Parker’s Guide figures. This led the Recorder to conclude that the appellant had not suffered any loss from the detention of the vehicles because their values had not dropped during the relevant period.[34]I confess to some disquiet about a procedure that involved submissions of this type being made by the council in closing when the ground had not been covered in cross examination of the appellant, during which he would no doubt have said, for example, that the figures produced in the Proceeds of Crime proceedings were not his figures and may also have sought to explain various accounting procedures.[35]However, the Recorder went on to make a very important further finding, namely that:
“In any event there is no evidence that Mr Kani would have been able to sell these vehicles during the period in which he was deprived of possession. ”
[36]The appellant accepts that any damages for detention of the vehicles needed to be based on the loss of the opportunity to sell them during the period when they were detained. The burden of establishing that there was a loss of opportunity fell upon him and, as the Recorder set out, he did not produce any evidence that he would have been able to sell the cars during the period for which he was deprived of possession. His case for damages in relation to the wrongful detention of the vehicles had not therefore even reached the starting blocks and the Recorder was correct in making no award under this head.[37]It follows that, with the exception of the first ground of appeal, none of the appellant’s grounds of appeal has been made out. The assessment of damages for the damage caused to the cars removed under the 1990 Act will be remitted to the county court. The balance of the appeal is dismissed.[38]I agree. Lord Justice Ward[39]I also agree.