London Borough Of Haringey v Moodie

A second-tier appeal should proceed only where it raises a point of principle or practice, or there is another compelling reason. Prolonged delay in seeking to reinstate a refused permission application may itself justify refusal. A proposed disrepair counterclaim or set-off will not ordinarily justify reopening a rent and possession judgment where the issue could have been raised earlier and the proposed appeal has no real prospect of success. Personal hardship does not displace these legal requirements.

The London Borough of Haringey obtained judgment in the Queen’s Bench Division for commercial rent arrears, further rent and insurance charges exceeding £23,000, and possession of premises leased by Mr Moodie. Master Ungley dismissed a subsequent application concerning the possession order. Mrs Justice Rafferty dismissed Mr Moodie’s appeal on 10 March 2000 and refused permission for a further appeal and a stay of execution. Permission was subsequently refused in the Court of Appeal.

Mr Moodie applied on 3 May 2001 to reinstate his permission application. He relied principally on an alleged failure to carry out repairs and a proposed counterclaim or set-off. The central question was whether the application should be reinstated despite the delay and the absence of a point of principle, practice, or other compelling reason.

1. Application refused. Lord Justice Mummery held that the application to reinstate the permission application should not be granted. Leave to appeal was refused with costs.
2. The proposed appeal was a second-tier appeal. Such an appeal is only appropriate where it raises a point of principle or practice, or where there is some other compelling reason. The case did not satisfy either requirement.
3. The delay of almost a year before seeking reinstatement was excessive. That delay alone justified refusal of the application.
4. There was in any event no real prospect of successfully setting aside the judgment. The rent arrears entitled the council to judgment and possession, and the council had obtained possession but remained unpaid.
5. The alleged disrepair did not provide a sufficient basis for reopening the matter. Mr Moodie had had ample opportunity to raise the issue during the hearings before Master Ungley. It had not been raised then and had not been successfully raised before Mrs Justice Rafferty. It was also the subject of separate proceedings. At that late stage, it was inappropriate to introduce the matter as a defence or counterclaim.
6. The applicant’s personal misfortunes, although acknowledged, could not alter the legal assessment. The council was entitled to enforce its judgment.

• Court of Appeal (Civil Division): An earlier application for permission to appeal was dismissed. On 11 May 2001 Lord Justice Mummery refused the application to reinstate it and ordered costs.
• High Court of Justice: Mrs Justice Rafferty dismissed Mr Moodie’s appeal against the order concerning possession on 10 March 2000 and refused permission for a further appeal and a stay of execution.
• Queen’s Bench Division: Judgment was entered for rent arrears, further rent and insurance charges, together with possession. Master Ungley later dismissed an application seeking to set aside or affect the possession order.