Navagar & Anor v London Borough Of Hackney

On a renewed application for permission to appeal, permission may be refused where, even if liability is arguable, the claim has no realistic prospect of success on damages. An appellate court will not readily interfere with a trial judge’s credibility findings or order a retrial without a proper evidential basis. Delay in delivering judgment does not, without more, undermine findings on straightforward damages issues. Under section 92 of the Housing Act 1985, written consent is required for the relevant secure-tenancy assignment or exchange, but an arguable dispute about consent cannot overcome an evidential failure on loss.

Mr and Mrs Navagar claimed against the London Borough of Hackney after it refused consent to a three-way exchange of tenancies involving Mrs Murphy and Mrs Black. His Honour Judge Graham QC, sitting in Shoreditch County Court, rejected the claim. The Navagars renewed their application for permission to appeal, challenging the enforceability of clause 10 of the tenancy agreement, the effect of section 92 of the Housing Act 1985, the finding that the necessary written consents had not been proved, the assessment of damages, and the delay in delivering judgment. The central issue was whether any of those grounds had a realistic prospect of success.

Application for permission to appeal refused. Lord Justice Rix considered the application on the assumption that the Navagars had an arguable case on liability.

1. The court assumed, for present purposes, that clause 10 of the tenancy agreement was sufficiently certain and enforceable. It also assumed that the statutory term under section 92 of the Housing Act 1985 could be enforced by an award of damages.
2. The judge’s finding that the written consents of Mrs Murphy and Mrs Black had not been proved was treated as arguable. The documents might support an inference of consent, but that did not resolve the damages issue.
3. The claim for loss of the opportunity to buy the new premises had no realistic prospect of success. The judge had found that the Navagars had very limited financial resources, no income other than social security, and no credible basis for concluding that Mr Zina would have financed or guaranteed the purchase. The Court of Appeal saw no realistic basis for reversing that credibility finding or ordering a retrial.
4. The claim concerning the old premises was also untenable on the judge’s findings. A £5,000 settlement had addressed the repairing-covenant claim. The proposed new premises would also have lacked heating and had stairs unsuitable for the Navagars’ circumstances.
5. The delay between the hearing and judgment might have contributed to confusion between statutory conditions, liability and causation. However, there was no reason to doubt the judge’s recollection or conclusions on the simpler damages issues. Causation was not determined because the application had not focused on it.

The application was refused, with detailed assessment of the applicants’ costs.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal, permission was refused: [2001] EWCA Civ 644.
• Shoreditch County Court: His Honour Judge Graham QC rejected the Navagars’ claim.