Singh v Singh

In a claim for recovery of payments based on alleged total failure of consideration, that failure does not necessarily conclude whether retention of the money is unjust. Subsequent events, including the claimant’s knowledge of the proposed tenant’s identity and payments made after seeing a draft lease naming that tenant, may make it arguable that retention was not unjust. Where such matters were not addressed below and could affect the result, permission to appeal should be granted.

This was a renewed application by the defendant for permission to appeal against a Derby County Court judgment given by His Honour Judge Orrell on 25 May 2001. The claimant had obtained judgment for approximately £27,600 plus interest and costs in a money-had-and-received claim. He alleged that payments made for a 20-year lease and the business had wholly failed in consideration because the lease was transferred to Inderjit Singh Basra. Permission had previously been refused on the papers by Keene LJ on 12 November 2001. The central issue was whether later events made it arguable that retaining the payments was not unjust.

Disposition. Laws LJ, with Morland J agreeing, granted permission to appeal. Execution of the county court judgment was stayed pending appeal on the defendant’s undertaking to prosecute the appeal expeditiously.

1. Permission-stage issue. The county court judge had rejected the defendant’s evidence and treated the alleged total failure of consideration as concluding the matter. He had apparently not considered events occurring after the parties’ meeting on 28 June 1997.
2. Material subsequent events. The evidence indicated that solicitors apparently acting for the claimant prepared a lease naming Inderjit Singh Basra as tenant. The claimant saw the draft, queried the proposed tenant, and was told that Inderjit was the intended tenant. Despite that knowledge, the claimant paid £12,500 on 8 September 1997 and £13,000 on 19 September 1997, before the lease was executed in Inderjit’s favour on 29 September 1997.
3. Arguable unjust enrichment issue. Those circumstances were capable of supporting an argument that it was not unjust for the defendant to retain the money. The Court of Appeal did not finally determine the restitution claim. It held only that the issue was sufficiently arguable to justify an appeal.
4. Further orders. Costs of the permission application were reserved to the appeal. The appeal was directed to be heard by two judges, one of whom could be a High Court judge.

1. Court of Appeal (Civil Division) — On the renewed application, permission to appeal was granted; execution of the judgment was stayed pending appeal. [2001] EWCA Civ 1996
2. Derby County Court — His Honour Judge Orrell entered judgment for the claimant for approximately £27,600 plus interest and costs on 25 May 2001.
3. Permission stage — Keene LJ refused the defendant’s application for permission to appeal on the papers on 12 November 2001.