Ball & Anor v Plymouth City Council

An appeal from a county court judgment is ordinarily a review, not a rehearing. A rehearing is available only where a practice direction permits it or where the appellate court considers it in the interests of justice. An appellate court should not substitute its own factual assessment merely because the evidence is incomplete or conflicting. It may do so where the material facts are agreed or the lower court clearly erred. A decision will be set aside for procedural irregularity only where the irregularity made it unjust. Irrelevant judicial comments may be undesirable, but they do not justify allowing an appeal unless they affected the decision or caused injustice.

The claimants, tenants of premises owned by the defendant local authority, claimed damages and specific performance for dampness and condensation. They relied on an implied term of the tenancy, section 11 of the Landlord and Tenant Act 1985 and section 4 of the Defective Premises Act 1972. Following a trial, the Plymouth County Court dismissed the claim, finding that the claimants had not proved that the dampness resulted from an actionable defect in the structure or exterior.

The claimants appealed. They argued that the Recorder had failed to give adequate reasons, had relied on irrelevant matters, and had conducted the hearing in a procedurally unfair manner. The central issues were whether the appeal should be treated as a rehearing, whether the Recorder’s decision was wrong, and whether the proceedings were unjust because of a serious procedural or other irregularity.

1. Nature of the appeal. Under CPR Pt 52.11(1), an appeal is limited to a review unless a practice direction provides otherwise or a rehearing is in the interests of justice. The permission order directed that the matter be listed for argument only and did not direct a rehearing. The circumstances were not sufficiently unusual to justify one, consistently with Asiansky Television plc v Bayer-Rosin [2002] 2 CPLR 111.
2. Scope of factual review. Although an appellate tribunal may draw any inference justified by the evidence, it may substitute its own decision only where the material facts are agreed or uncontested, or where the lower court clearly erred in finding a fact or drawing an inference. The conflicting expert reports had not been tested by cross-examination, and the evidence did not permit such a substitution.
3. Reasons and causation. The Recorder was entitled to conclude that the claimants had failed to prove causation. The claimant’s expert had made a general assertion that damp penetration through the external walls caused the condensation, without particulars or an explanation of how water could penetrate the cavity walls. The defendant’s expert found no supporting cause. The claimant’s evidence established symptoms but did not establish the technical cause of the dampness.
4. Procedural irregularity and irrelevant matters. The Recorder’s discussions about funding arrangements, solicitors and possible cold canvassing were plainly irrelevant to liability and were undesirable. However, the appellate court was not satisfied that those discussions influenced the reasoning or made the proceedings unjust within CPR Pt 52.11(3). A judge may inquire into solicitors’ conduct provided no unfair conclusion is reached.
5. Disposition. The Recorder’s decision was neither wrong nor unjust. The appeal was dismissed.

1. High Court (Queen’s Bench Division): On 4 February 2004, Eady J dismissed the appeal from the Plymouth County Court judgment dated 14 August 2003.
2. Plymouth County Court: The claimants’ claim concerning dampness and condensation was dismissed after trial. Permission to appeal was granted by Coleridge J on 26 November 2003.