England v Muhith Choudhury & Ors

An alleged agreement or promissory estoppel arising from written correspondence must be established by construing the correspondence and the parties’ conduct. Where the issue does not depend on oral credibility, cross-examination on an irrelevant document may properly be refused. A judge’s brisk or vigorous comments do not establish apparent bias or an unfair trial where the proceedings, viewed as a whole, were conducted fairly and within ordinary judicial bounds. A renewed application for permission to appeal should be refused where the trial judge made findings open to him, correctly applied the law, and the proposed grounds have no substance.

The claimant obtained judgment in the Birmingham Civil Justice Centre for arrears of rent following forfeiture of a lease of restaurant premises. The defendants contended that correspondence concerning post-dated rent cheques created an agreement, or gave rise to promissory estoppel, preventing recovery of the arrears and forfeiture.

The defendants also alleged that the trial judge had conducted an unfair trial, displayed bias, and wrongly prevented cross-examination about a dilapidations schedule. After the trial judge rejected the agreement and estoppel case, the defendants renewed their application to the Court of Appeal for permission to appeal and sought a stay of execution. The central questions were whether the proposed grounds disclosed any arguable error of law, procedural unfairness, or apparent bias.

Forbes J refused the renewed application for permission to appeal.

1. The trial judge’s findings that the correspondence and the banking of one cheque did not create the alleged agreement or promissory estoppel were findings he was entitled to make. The issue turned on the proper construction of the correspondence and the claimant’s conduct, rather than on disputed oral conversations. In those circumstances, the defence based on agreement or promissory estoppel had been properly rejected.
2. The refusal to permit cross-examination concerning the dilapidations schedule was justified. The document was irrelevant to the issues that remained, and credibility was not in issue. Although the judge dealt with the point peremptorily, he was right to prevent cross-examination directed to a matter that could not affect the decision.
3. The allegations of bias and unfair trial were unfounded. The judge’s comments about the variance between the pleaded case and the skeleton argument were brisk and vigorous, but remained within the limits of appropriate judicial comment. The conduct of the hearing as a whole was courteous and proper, and the judge made findings favourable to the defendants on other issues.
4. The court agreed with the earlier refusal of permission that the trial judge had applied the law correctly. The proposed grounds disclosed no substance. The order was: application refused.

• Court of Appeal (Civil Division): Forbes J refused the renewed application for permission to appeal from the order of HHJ McKenna.
• Birmingham Civil Justice Centre: On 14 August 2007, HHJ McKenna gave judgment for the claimant for rent arrears following forfeiture of the lease, though for less than the full amount originally claimed, and made consequential costs orders.