Glah v Mayor and Commonalty and Citizens of the City of London

On an application for permission to appeal, the Court of Appeal will rarely interfere with a trial judge’s findings based on witness credibility. The applicant must show very exceptional circumstances capable of displacing those findings. Minor errors on dates do not suffice where the conclusion remained open on the evidence. Once regular sleeping in leased office premises was established, the breach of the user covenant supported a valid notice under section 146 of the Law of Property Act and lawful re-entry. Contractual swipe-card rules permitted withdrawal of access where misuse affected building management or security. Relief against forfeiture is discretionary and requires remedy, or a genuine attempt to remedy, the breach together with compensation. The human-rights objections disclosed no real prospect of success.

Dr Glah, a barrister and tenant of two rooms in Temple Chambers, challenged the withdrawal of his swipe card, the forfeiture of his tenancy and the defendants’ re-entry. The trial judge, His Honour Judge Roger Cox, found that Dr Glah had regularly slept in the offices contrary to the lease, upheld the section 146 notice, refused relief against forfeiture and rejected his human-rights arguments.

Earlier, His Honour Judge Marr-Johnson had refused an interim order requiring the return of the swipe card, and Pumfrey J had refused permission to appeal that decision. Dr Glah sought permission to appeal the trial judgment, a stay of execution and permission to appeal Pumfrey J’s decision. The central issues were whether the trial findings based on witness credibility could be displaced and whether the legal challenges had any real prospect of success.

Lord Justice Aldous delivered a single judgment and refused the applications.

1. Factual findings. An appeal founded on a trial judge’s assessment of witness credibility faces substantial difficulty. The trial judge had seen and heard the witnesses. The Court of Appeal would interfere only in very exceptional circumstances. Although some errors concerning dates could be identified, it was clearly open to the trial judge to accept the defendants’ evidence that Dr Glah regularly slept in the office and reject his contrary evidence.
2. Forfeiture and re-entry. The established use of the premises for sleeping breached the lease covenant restricting their use to professional and mercantile offices. Once that finding was accepted, the conclusion that the notice under section 146 of the Law of Property Act was valid and that the defendants had lawfully re-entered followed.
3. Swipe-card access. The card regulations permitted withdrawal of the swipe card where access was misused in a way affecting the management or security of the building. On the established facts, the defendants were entitled to withdraw it. The contractual interpretation was not disputed.
4. Human rights. The restrictions on use and access did not infringe the asserted rights to family life, freedom of expression or property. The property right did not extend beyond the rights granted by the lease. The additional arguments under Articles 3 and 6 were also plainly incapable of establishing infringement on the findings.
5. Relief and jurisdiction. Relief against forfeiture is discretionary and requires the breach to have been remedied, or steps to remedy it, together with an offer of compensation. Dr Glah had done neither. The Court of Appeal also could not grant permission to appeal Pumfrey J’s refusal of permission, having regard to its statutory jurisdiction. There was no real prospect of success, and the application for permission to appeal was refused.

1. Court of Appeal (Civil Division). On 7 February 2002, Lord Justice Aldous refused permission to appeal the trial judgment and refused the related application concerning permission to appeal the interim injunction decision.
2. Mayor’s and City of London Court. His Honour Judge Roger Cox, after trial on 31 October 2001, found that Dr Glah had regularly slept in the premises, upheld the section 146 notice, accepted the lawfulness of re-entry, refused relief against forfeiture and rejected the human-rights arguments.
3. Mayor’s and City of London Court. His Honour Judge Marr-Johnson refused an interim order requiring return of the swipe card on 6 April 2001. Pumfrey J subsequently refused permission to appeal that decision.