Molyneux v Liverpool City Council

An appellate court will ordinarily respect a trial judge’s findings of fact where the judge considered the evidence, heard the witnesses and reached findings available on the evidence. Permission to appeal should be refused where the proposed grounds concern matters that were neither pleaded nor canvassed at trial. An appellant cannot expand the case on appeal into a general complaint about inadequate security or wider treatment of tenants when those matters were not issues decided below.

The claimant was a tenant of council-owned accommodation. After a fire, the council provided alternative accommodation but permitted him to leave property in his former flat. The property was later stolen. He claimed damages, arguing that council employees must have committed the theft and, alternatively, that the council was liable as bailee.

The Liverpool County Court dismissed the claim. The trial judge rejected the inference of employee involvement and found that the council had taken reasonable care of the property. The claimant applied to the Court of Appeal for permission to appeal, also raising wider complaints about vandalism and the security of the flats.

Lord Justice Judge refused permission to appeal.

1. The trial judge had considered the evidence and heard the witnesses. He was entitled to find that the theft by council employees had not been proved on the balance of probabilities. The Court of Appeal would not interfere with those findings under ordinary appellate principles.
2. The alternative claim proceeded on the basis that the council owed the claimant, as bailee, a duty to take reasonable care of his property. The trial judge found that the council had established that it was not negligent in managing the premises while the property remained there. That factual conclusion was also one which he was entitled to reach.
3. The claimant’s wider concerns that the council had failed to protect tenants from vandalism or provide adequate security were not issues before the trial judge. They had not formed part of the pleaded case and had not been canvassed at the hearing. They therefore could not provide a basis for an appeal.
4. The court was sympathetic to the claimant’s position, but there was no proper ground on which permission could be granted.

Order: Application for permission to appeal refused.

1. Court of Appeal (Civil Division): Lord Justice Judge refused permission to appeal.
2. Liverpool County Court: His Honour Judge Marshall Evans QC dismissed the claimant’s claim for damages on 11 January 2002.