Brownfern Properties Limited v Al-Amood

An appeal cannot be used to circumvent an unchallenged unless order or debarring order. Where a party has been debarred from defending, the trial court is entitled to proceed on the basis that the order is valid and to determine the claim on the evidence available. An appellate court will not ordinarily entertain factual and evidential criticisms which could have been advanced at trial. Alleged negligence by solicitors is not properly examined in proceedings to which they are not parties. Permission to appeal requires a real prospect of success.

The claimant obtained judgment in the Central London County Court for rent arrears and the cost of decorations and dilapidations under a three-year lease. The defendant and his co-lessee had been debarred from defending after failure to comply with earlier unless orders. His Honour Judge Samuels QC accepted the claimant’s evidence and awarded £37,521.63.

The defendant applied to the Court of Appeal for permission to appeal, an extension of time and a stay of execution. He challenged his liability under the lease, the factual evidence and the effect of his solicitors’ alleged negligence. The central issues were whether the lease imposed liability for the works and whether the proposed appeal could properly reopen matters after the unchallenged debarring order.

Per Lord Justice Keene, the applications for permission to appeal, extension of time and stay of execution were dismissed.

1. Lease obligations. The lease contained both a repairing covenant and special proviso 3, requiring specified decorative works to be carried out within three months in a good and substantial manner to the reasonable satisfaction of the landlord. These provisions imposed a positive obligation on the tenant, and there was no real basis for challenging the finding that the tenant was liable in principle for the repairs and redecorations.
2. Evidence and the debarring order. The trial judge had evidence on which he could properly find that the works were required and that their cost, together with the rent arrears, had been established. The defendant’s criticisms were essentially matters of fact and evidence. Since the debarring order of 18 May 2000 had neither been appealed nor challenged in the county court before trial, the judge was entitled to treat it as valid. An appeal could not operate as a means of circumventing that order.
3. Solicitors’ alleged negligence. The alleged negligence of the defendant’s former solicitors could not properly be explored in these proceedings because they were not parties. Any remedy against them would have to be pursued separately if the allegation were founded.
4. There was no real prospect of success in the proposed appeal. Accordingly, there was no alternative but to dismiss all the applications.

• Court of Appeal (Civil Division): On 24 April 2001, Lord Justice Keene dismissed the applications for permission to appeal, extension of time and stay of execution: [2001] EWCA Civ 605.
• Central London County Court: His Honour Judge Samuels QC entered judgment for the claimant in the sum of £37,521.63 on 20 September 2000.