London Borough of Barnet v Kani

Fresh evidence that could have been placed before the lower court is not admissible on an appeal. Permission to appeal should be granted where a proposed ground is reasonably arguable. That threshold was met by issues concerning whether a conditional offer to return seized vehicles was effective, whether the statutory duty to return arose earlier because the authority already possessed ownership information, whether valuation evidence had been properly assessed, and whether damages should reflect a loss of a chance to sell rather than proof of an actual sale. The court decided only that those grounds were arguable. It did not determine their substantive merits. The relevant statutory issue arose under the London Local Authorities Act 1990.

The London Borough of Barnet had applied for an ASBO against Mr Kani, who brought a counterclaim. The council had seized several cars, including vehicles in respect of which it alleged that adequate proof of ownership was lacking. Mr Recorder Francis QC gave judgment in the Central London County Court on 10 July 2009.

Sir Richard Buxton granted limited permission to appeal on the papers and refused permission to adduce further evidence. Mr Kani renewed that request and sought permission on additional grounds concerning the statutory duty to return the vehicles, ownership information supplied by the DVLA, valuation evidence, and the proper measure of loss during alleged illegal detention. The central issue was whether those grounds were reasonably arguable.

Outcome. The application to adduce further evidence was refused. Renewal of the refusal of permission was allowed on some grounds, which were added to the points for which permission had already been granted.

1. Fresh evidence that could have been before the court below could not be introduced on the appeal. The application to adduce such evidence was therefore formally refused.
2. The suggested error concerning whether the duty to return arose on 3 September or about 5 September was too trivial to justify permission.
3. The principal statutory issues concerned section 38(b) of the London Local Authorities Act 1990. The letter of 3 September offered release only on the conditions that Mr Kani confirm ownership, provide documentary evidence, and collect the vehicles. The council itself held the relevant logbooks and had pleaded that fact in relation to ten vehicles. It was reasonably arguable that the conditional letter did not amount to a return of the vehicles.
4. It was also reasonably arguable, on documents already before the lower court, that the DVLA had supplied Barnet with the relevant ownership information on 11 August and that the duty to return therefore arose on or before 23 August.
5. The approach to valuation was fairly arguable. The lower court had preferred police valuations arising in criminal proceedings over figures from a trade publication, although the source of the police valuations was said to be unsubstantiated.
6. The assessment of loss was also arguable. Instead of requiring proof that a particular vehicle would have been sold during the period of detention, the relevant measure might be the value of the lost opportunity to attempt a sale, namely loss of a chance.

Lord Justice Jacob left all substantive issues for the appeal and made no final determination on the statutory construction, valuation evidence, or measure of loss.

1. Court of Appeal (Civil Division): On 4 February 2010, Lord Justice Jacob refused permission to adduce further evidence and granted permission on several additional grounds. The additional points were added to those for which Sir Richard Buxton had already granted permission on the papers. [2010] EWCA Civ 105
2. Central London County Court: Mr Recorder Francis QC gave judgment on 10 July 2009 in the authority’s ASBO application and Mr Kani’s counterclaim.