Lysongo v Railtrack Plc

A contractual user restriction must be construed according to its ordinary meaning. Planning permission for a wider use does not alter the tenant’s contractual obligations. Continued negotiations about varying a user clause do not, without more, waive or abandon a valid notice under section 146 of the Law of Property Act 1925. An appellate court will not reopen clear factual findings merely by recasting the case or presenting a second version of the evidence. A litigant who voluntarily withdraws from a trial cannot ordinarily complain that the ensuing hearing was unfair.

Railtrack let a railway arch to Mr Lysongo for the agreed use of storage of foodstuffs. He used it to sell dried fish. After service of a notice under section 146 of the Law of Property Act 1925, Railtrack forfeited the tenancy and removed his goods.

The Central London County Court dismissed his consolidated claims for wrongful forfeiture, seizure of goods, loss and inconvenience. Permission to appeal was refused below. The Court of Appeal considered whether there was any real prospect of showing that the trial had been unfair, that the contractual user clause permitted sales, or that Railtrack had waived the notice.

1. Application dismissed. The Court of Appeal refused to discharge the earlier order dismissing the application for permission to appeal. The appeal had no real prospect of success.
2. The contractual phrase “storage of foodstuffs” meant storage. The fact that the tenant sold dried fish to retailers rather than directly to customers did not alter the analysis. Planning legislation or a planning permission allowing a wider use did not change the contractual covenant or relieve the tenant of his responsibility to comply with it.
3. The trial judge’s findings were clear and supported by the evidence. There had been no agreement to extend the permitted use, and Railtrack had not knowingly acquiesced in the sales. Those findings could not be reopened on an application for permission to appeal merely by advancing a differently formulated case.
4. Continuation of negotiations concerning a possible variation of the user clause did not itself waive or abandon the section 146 notice. The Court applied the principle discussed in Re National Jazz Centre Ltd (1988) 3 EGLR 57.
5. The trial had been conducted fairly. Mr Lysongo had been given opportunities to present his case, but chose to take no further part after beginning the cross-examination of Railtrack’s first witness. He had to accept the consequences of that voluntary decision.
6. The findings concerning access and advertising disclosed no arguable basis for interference. Railtrack was not shown to have breached an express obligation or to have caused actionable obstruction. The order dismissing the claims was therefore upheld.

• Court of Appeal (Civil Division): On 21 January 2002, the Court of Appeal dismissed the application after the applicant failed to attend for medical reasons. The application was later re-listed.
• Central London County Court: His Honour Judge Brian Knight dismissed the consolidated claims and refused permission to appeal.
• Court of Appeal (Civil Division): The present court refused to discharge the earlier order and dismissed the renewed application.