Samambwa v Countrywide Managing/ Residential Ltd & Ors

Where a vehicle is removed under a newly introduced parking scheme, the relevant question is whether the claimant received, or ought reasonably to have received, notice of the scheme before removal. A claim may sound in negligence where the failure to give effective notice is alleged to have caused the loss. An independent contractor does not ordinarily make a management company vicariously liable for the contractor’s acts. Where the trial failed to address the pleaded notice issue and that failure caused serious injustice, the Court of Appeal may remit the matter for a confined retrial.

The appellant, a residential tenant, claimed damages after his vehicle was removed from a communal car park by Baypark Management Ltd under a new parking scheme. The scheme had been introduced before he received notification of it. He alleged trespass and negligence against Baypark, the managing agents and the residents’ management company, including vicarious liability.

The Edmonton County Court accepted that the vehicle had been wrongly removed, but dismissed the claims against the first and third defendants because Baypark was an independent contractor. Judgment had already been entered against Baypark, but the judge assessed only loss of use. The appeal concerned the failure to determine the pleaded notice-based negligence issue and the assessment of damages.

Lord Justice Ward held that the appeal against Baypark should be allowed and the matter remitted for a retrial before another judge if appropriate.

1. Wrongful removal and damages. The trial judge had accepted that the appellant received the parking-scheme letter only after the vehicle had been removed, and that no permit or signs had been provided. The vehicle had therefore been wrongly removed. Since it had not been returned despite a court order, the judge should have treated the claim as one in conversion and assessed damages on that basis, including the vehicle’s value and relevant contents, rather than assessing only loss of use.
2. Negligence and notice. The pleaded case raised a distinct issue: whether the appellant had received, or ought to have received, notice of the changed parking arrangements before removal. The management company’s alleged duty, if any, and the steps reasonably required to discharge it had not been properly analysed or tried. Although the respondents argued that remittal would be unjust because the case had not been adequately presented below, the failure to determine the pleaded issue caused grave injustice.
3. Scope of rehearing. The rehearing was confined to Baypark’s negligence, namely whether notice had been received or ought to have been received. The vicarious-liability issues concerning the managing agents and the management company were not to be relitigated; the case on that issue was hopeless.

The appeal was consequently allowed against Baypark, although recovery from that liquidated company was likely to be academic. The matter was remitted to the lower court.

• Court of Appeal (Civil Division): allowed the appeal against the second defendant, Baypark Management Ltd, set aside the relevant order and remitted the matter for a confined retrial.
• Edmonton County Court: on 10 December 2010, HHJ Gillian Brasse dismissed the claims against the first and third defendants, found Baypark liable and assessed damages at £6,990.22 for loss of use of the vehicle.