Lysongo v Railtrack Plc

Where an appeal has been presented on an erroneous or materially narrower factual basis, the appellate court may adjourn the permission application so that the opposing party can be heard on a potentially arguable alternative case. That course may be appropriate where a litigant in person may not have presented the point properly below and where the omitted case could affect the validity of forfeiture proceedings.

The court should identify the precise use of premises alleged to have been authorised or acquiesced in. Retail use and warehousing with distribution to restaurants and shops may raise materially different questions. A landlord’s willingness to negotiate a variation does not, without more, amount to waiver of a breach notice.

The claimant occupied premises let by Railtrack for the storage of foodstuffs. Railtrack alleged that he had breached the user covenant by trading and selling dried fish from the premises, served a notice under section 146 of the Law of Property Act 1925, and subsequently repossessed the premises.

The claimant brought consolidated proceedings alleging, among other matters, wrongful termination and loss. His case below was conducted principally on the basis that he was using the premises for retail trade. The judge dismissed the claims and refused permission to appeal. Before the Court of Appeal, the claimant accepted that retail use was not permitted but argued that the landlord had known of and acquiesced in warehousing combined with distribution to restaurants and shops. The central issue was whether that differently formulated case warranted further consideration.

1. Application adjourned. The claimant’s application for permission to appeal was adjourned for a hearing on notice to Railtrack. If permission were granted, the appeal was to follow.
2. The case had been presented below on the basis of retail use. On that basis, the claim could not succeed because there was no sufficient evidence that Railtrack had known of and acquiesced in retail use. The judge had also found that the planning position did not assist the claimant and that there had been no waiver of the section 146 notice.
3. The claimant’s case before the Court of Appeal was materially different. He relied on evidence that the landlord may have known, when the tenancy was granted, of warehousing and distribution to restaurants and shops. That use was distinct from retail trading from the premises and could not be dismissed merely because the retail case failed.
4. The court was concerned that the claimant, who appeared in person, might not have presented the potentially arguable point properly below. His conduct of the litigation, including withdrawing before cross-examining the opposing witnesses, created difficulties, but those difficulties did not justify ignoring a point which might have succeeded if properly formulated.
5. The court gave no assurance that the claimant would ultimately succeed and warned him that further costs and financial difficulties might follow if he lost. Copies of the judgment were ordered to be sent to the parties at public expense.

• Court of Appeal (Civil Division): On 31 July 2001, the application for permission to appeal was adjourned for a hearing on notice, with the appeal to follow if permission was granted.
• Central London Civil Trial Centre: His Honour Judge Knight QC dismissed the claimant’s consolidated claims with costs on 14 May 2001 and refused permission to appeal.