London Borough of Southwark v Holmes

An implied warranty that a mooring is safe is ordinarily co-extensive with the contractual period for which the mooring is provided. Where the agreement is a short, rolling licence, the warranty need not continue after its expiry. A counterclaim struck out under an “unless” order cannot simply be reinstated on appeal; the proper routes are an appeal against the strike-out or an application for relief from sanction. Appellate courts are slow to interfere with case-management decisions and trial judges’ credibility findings.

The Council claimed outstanding mooring fees and electricity charges arising from the respondent’s mooring of a pier at Greenland Pier. The trial judge found that the parties had created an informal, temporary licence operating on a rolling monthly basis and terminable on three months’ notice. She held that the licence had been validly terminated, rejected an estoppel argument, awarded the sums claimed and dismissed the respondent’s counterclaim, while allowing safety complaints to be relied upon insofar as they might constitute a defence.

The respondent made a renewed application for permission to appeal. Her grounds concerned the safety of the mooring, set-off, an adjournment to obtain legal aid, judicial allocation, alleged unfairness, an undertaking, settlement, witness credibility, the time allowed for payment on account of costs and reinstatement of the struck-out counterclaim.

The judgment concluded that permission to appeal should be refused because none of the proposed grounds had any prospect of success.

1. The trial judge’s findings supported the conclusion that the arrangement was a temporary, informal licence which could be terminated on reasonable notice. Three months’ notice was reasonable, and the notice served by the Council was effective. There was no later agreement extending the licence and no estoppel preventing reliance on the notice.
2. The implied warranty of safety did not continue beyond the limited contractual period found by the trial judge. The Council was therefore not liable for the condition of the mooring when the piles later failed.
3. There was no basis for setting off against liability for mooring fees money collected from third parties. That issue also arose from a struck-out counterclaim and could not be advanced as a pure defence.
4. The court was reluctant to interfere with case-management decisions, including refusal of an adjournment to obtain legal aid. Any challenge had to be made promptly.
5. Litigants cannot choose their judge. It was good listing practice for a judge who had dealt with procedural applications to conduct the trial. No evidence supported the allegation of an unfair trial.
6. The trial judge was better placed to assess witness credibility after hearing the evidence. No appellate ground had been shown for interfering with those findings.
7. The time allowed for payment on account of costs was consistent with usual practice. No practical prejudice justified an appeal on that issue.
8. The Court of Appeal had no power simply to reinstate a statement of case struck out pursuant to an “unless” order. The available remedies were an appeal against the strike-out or an application for relief from sanction to the court that made the order.

The reasoning states that permission to appeal must be refused. The supplied transcript nevertheless ends with the inconsistent entry “Order: Application granted”.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal from the Central London County Court decision of HHJ Hazel Marshall QC, the court concluded that the proposed appeal had no prospect of success and stated that permission must be refused: [2009] EWCA Civ 601.