Tickford Estates v Brione [2013] EWCA Civ 208

Case No B5/2012/0839[2013] EWCA Civ 208
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(MR RECORDER READ)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 5 th February 2013
Before
LORD JUSTICE MUMMERY
Between
TICKFORD ESTATESRespondentBRIONEAppellant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person. for in person for The Respondent did not appear and was not represented.
Judgment
[1]This is a renewed application for permission to appeal. It is made by Mr Edvin Brione, who acts in person, and the decision which he wishes to appeal is that made by Mrs Recorder Read on 22 March 2012 after a three-day hearing in the Willesden County Court. Judgment was given against him for the payment of arrears due under a licence to occupy agreement which he had entered into with the claimant, Tickford Estates Limited, on 1 January 2006. The papers were first placed before Lewison LJ, who gave a decision on 1 November 2012, stating his reasons for refusing permission. The application had been made on the basis of the contents of a skeleton argument prepared by Mr Brione and dated 15 April 2012.[2]The position today is that Mr Brione has not turned up to the hearing which was listed at 10 o’clock. A telephone call had been put through to him, and he said that he cannot attend today, and that he got his days mixed up. He was informed that he had been sent a letter notifying him of the hearing; that was dated 21 November 2012, and that letter was in the standard form telling him to contact the Civil Appeals Office or to obtain from the Internet the details of the timing and the court that would hear his renewed application. I did not speak to him on the telephone, but I was informed that he sounded as though he had just woken up. He was informed on my advice that the court would proceed today to deal with his application in his absence, on the basis of the points made in his skeleton argument.[3]I should say a little about the background to the application. As I mentioned earlier, the dispute arises from Mr Brione’s occupation of premises at 55 Strode Road, used by him as car wash premises and trading under the name Big Red Car Wash. He had entered into a licence to occupy the premises with Tickford Estates Limited at the beginning 2006. It was agreed that the occupation licence would commence and last for an initial period of six months, with a rent-free month, and that the rent or payments to be made were to be at the rate of £1,500 a month. He remained in occupation until early 2010. These proceedings were brought by Tickford Estates to recover arrears of the payments. They were awarded by the judge in the total sum of £6,000. The judge refused Mr Brione’s claim for the return of a deposit of some £3,000, which he alleged he had paid.[4]In his skeleton argument Mr Brione set out his account of the facts of the case and the course of the proceedings. He submitted that the decision reached by the judge against him did not accord with the rules of natural justice or with the standard of proof or the established custom of cash payments. He referred to the inefficient paperwork that he said was kept by either side. He said that the claimant should be penalised for poor business practice, and the claimant had reneged on the verbal agreement that had been made. He said that he was of good character, with good relationships with his neighbours. He is considerate regarding noise, working hours and so on, and he said that he had installed facilities on the site with considerable financial cost to himself on the understanding that he would have a substantial long lease, but the claimant had reneged on that. He makes various other detailed points in his skeleton argument about the evidence that was given at the trial on the matter of the disclosure of documents, and makes detailed criticisms of the claimant’s record-keeping. He says that he made cash payments to Mr Kara, who is the Director of the claimant, and a co-worker, a Mr Fernando. He takes a point, as I have indicated, about the burden of proof, that they have to prove that he has to pay the payment, rather than him having to prove that he did make the payment.[5]It will be apparent from that brief summary that there is no legal point on which Mr Brione is seeking to bring this appeal. He is making principally factual and procedural points. They were considered by Lewison LJ when he refused permission. In the three reasons given by him for refusing permission, Lewison LJ said:
“1. In considering the deposit issue the judge relied on one of the few contemporaneous documents. In circumstances in which she found that the witnesses were not wholly reliable she was entitled to come to her conclusion based on that document. There is no real prospect that this court would overturn that finding of fact. 2. In dealing with the question what rent had been paid the judge correctly directed herself on the burden of proof (Judgment § 23). 3. [The judge] then accepted the evidence on behalf of the claimant that the rent had not been paid (Judgment § 24).”
The judge considered the remainder of the evidence and came to a conclusion on the facts. There is no real prospect that this court would overturn her finding of fact that the rent had not been paid.[6]I have considered the judgment of the Recorder and the skeleton argument, and I have come to the same conclusions as Lewison LJ. I would add this as a general comment on this type of appeal. These are essentially appeals against findings of fact regarding the deposit and the non-payment of the sums under the licence to occupy. The trial judge, in this case the Recorder, is the tribunal that decides the facts, because that tribunal hears the evidence and sees all the documents. This is a Court of Appeal; it does not see any of the witnesses give their evidence and is not in a position to re-decide the facts. So the findings of fact are in general accepted by this court, and it is very difficult for an appellant to persuade this court to overturn the facts found by the trial judge on the basis of evidence heard at the trial. The only remotely legal point relates to the burden of proof and, as was said by Lewison LJ, the direction which the trial judge made was correct.[7]This appeal, therefore, has no real prospect of success. It would be wasteful of everybody’s time for it to be heard, and I would not be doing the applicant any favours by granting him permission for an appeal that would fail. In this court the costs normally follow the event, and the result of him losing the appeal would be that he would be worse off than if he had never brought it. He would have an additional bill for costs incurred by the respondent on an appeal.[8]I therefore refuse permission.

Order

Application refused.