Smith v Spaul

On a permission application, an appellate court may adjourn where material needed to test the proposed grounds is missing. This may include correspondence relevant to estoppel and court records needed to establish whether statutory leave was granted. A potentially arguable forfeiture issue may warrant further investigation where a building society served a counter-notice but the lessee did not, although the issue remains subject to any applicable estoppel. The court should not determine permission on an incomplete evidential record. No final ruling on permission or the merits was made.

Miss Smith sought permission to appeal against a costs order made by His Honour Judge Goldstein in the Central London County Court on 29 October 1999. The underlying claim for forfeiture had been struck out. The proposed appeal challenged findings that she was estopped by a settlement concerning breaches of lease covenants and that forfeiture could not proceed without leave under the Leasehold Property Repairs Act 1938. The Court of Appeal also considered a possible issue concerning a building society’s counter-notice under section 146. The central question was whether permission could fairly be determined when important correspondence and the county court record were unavailable.

Application adjourned. Lord Justice Ward did not determine permission to appeal or the merits of the forfeiture claim.

1. The estoppel ground could not fairly be assessed without letters dated 21 June and 12 July 1988. The latter was said to record payment in full and final settlement, while the material produced by Miss Smith suggested that settlement might have been conditional on remedial work satisfying the district surveyor and planning department. The complete correspondence was therefore required.
2. The second ground concerned section 1(3) of the Leasehold Property Repairs Act 1938, which required leave of the court before forfeiture could proceed. The court could not tell whether leave had been granted on the return date of the originating application. Miss Smith was directed to enquire of the county court.
3. Ward LJ considered Church Commissioners for England VE' v Best Manufacturing Company Limited [1957] 1 KB 238, particularly the passage at page 246 concerning the effect of a building society’s counter-notice where the lessee had served none. Since it was pleaded that the building society had served the counter-notice, this appeared to be a promising possible ground, although it might not assist unless the estoppel issue could also be overcome.
4. The allegation that the licence to assign was forged did not appear promising and required further factual enquiry. The application was adjourned. A copy of the judgment was to be provided at public expense, and the court encouraged attempts to obtain pro bono assistance.

• Court of Appeal (Civil Division): On 6 April 2001, Ward LJ adjourned the application for permission to appeal. See [2001] EWCA Civ 523.
• Central London County Court: On 29 October 1999, His Honour Judge Goldstein struck out the forfeiture claim and made an order for costs.