Owugah v Workspace Management Ltd & Anor

On a second appeal, permission should be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. Pure questions of fact ordinarily do not satisfy that threshold.

Exemplary damages require tortious conduct calculated to produce a profit beyond the compensation payable. Brief reasons will suffice where the lower court states its conclusions and provides enough explanation to show the legal basis of its decision, although fuller reasoning is desirable after a substantial hearing.

The claimant was a tenant of trade premises. After rent arrears arose, the respondents changed the locks, and the claimant later regained possession before the lease was terminated. He claimed relief against forfeiture, damages, aggravated damages and exemplary damages.

The District Judge dismissed the damages claims and entered judgment on the counterclaim. His Honour Judge Behar allowed the appeal on forfeiture, reduced the counterclaim, but dismissed the appeals concerning damages and exemplary damages. The claimant applied to the Court of Appeal for permission to appeal, relying on alleged inadequate reasoning, factual errors, and failure to consider loss of profits as a loss of chance. He referred to Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373. The central issue was whether the proposed appeal met the second-appeal permission threshold.

The application for permission to appeal was refused.

1. Second appeal threshold. Under Part 52.13, the Court would not grant permission unless the appeal raised an important point of principle or practice, or there was another compelling reason for the Court to hear it. The grounds advanced did not meet that demanding threshold.
2. Counterclaim. The challenges to the respondents’ title to sue and to the calculation of the deduction for loss of use were questions of pure fact. Both lower courts had found that the respondents had proper title and that the relevant loss of use ended on 28 September. Nothing in their judgments clearly justified appellate interference.
3. Exemplary damages. The relevant category identified in Rookes v Barnard [1964] AC 1129 concerned tortious conduct calculated to produce a profit beyond the compensation payable. The respondents’ conduct was not shown to have been calculated to make a profit. The arrears and the sum payable for the period of unlawful forfeiture did not support that conclusion, and there was no evidence that the premises were locked in order to re-let them at a higher rent. The Circuit Judge should have addressed the omitted claim more fully, but his conclusion was correct.
4. Reasons and loss of profits. The District Judge’s judgment was short, but it stated that the claimant’s evidence was not accepted and was contradicted by another witness. That was sufficient to explain the decision in accordance with law. The criticism that the District Judge had failed to consider loss of chance had no merit when the judgments were read together. Fuller reasons would have been preferable, but the brevity of the judgment did not provide a compelling reason for a second appeal.

• Court of Appeal (Civil Division) — On 9 June 2004, Lord Justice Thomas refused permission to appeal.
• Wandsworth County Court — On 21 November 2003, His Honour Judge Behar allowed in part the claimant’s appeal from the District Judge’s judgment on forfeiture, reduced the counterclaim, and dismissed the appeals concerning damages and exemplary damages.
• Wandsworth County Court — District Judge Habershon dismissed the damages claim and entered judgment on the counterclaim for £15,490.66.