B2/2000/3261

Neutral Citation Number: [2001] EWCA Civ 1104
IN THE SUPREME COURT OF JUDICATURE     
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Pillay)
								Royal Courts of Justice
								Strand
								London WC2

								Tuesday 10th July, 2001
B e f o r e:

LORD JUSTICE ALDOUS

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HERMAN TRIBELNIG
Claimant/Applicant

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(1) GRAHAM GOYMOUR
(2) MONIQUE VAN DEN HURK
Defendants/Respondents

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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THE APPLICANT appeared on his own behalf

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J U D G M E N T
1.	LORD JUSTICE ALDOUS: This is an application for permission to appeal against an order, dated 28th September 2000, of His Honour Judge Pillay sitting in the Central London County Court. There is also an application for an extension of time and an application to introduce fresh evidence to which I will have to come. 
2.	At the outset I make it clear that the delay in presenting the application is not one which should be held against this applicant. It was short in duration and although time limits are there to be kept, I would not consider the delay as relevant on the application. 
3.	The basic facts are complicated, as this case arises out of a dispute between neighbours. The claimant, Mr Herman Tribelnig, bought the freehold of a Victorian terrace house, 7 Edis Road, London NW1 in 1976. It was, as he told me today, in a poor state of repair. In particular a lot of work was needed in the cellar to ensure a stable base for the rest of the house. He said in his witness statement that the work was undertaken or supervised by himself, as he is an architect builder by trade having obtained his qualifications in Austria. 
4.	Having divided the property into flats and completed the work that was necessary to the cellar and the basement, he experienced financial difficulties which resulted in possession of the basement and upper floor flat being granted to the company that had advanced him money. He continued to live in the ground floor flat with his partner and their son. 
5.	The upper floor flat consisted of two floors. That had been let by the claimant to himself and his partner on a tenancy of 99 years, which was recorded in a lease of 6th February 1985 (page 53 of the bundle). Upon repossession by the mortgage company, the long lease was sold and it was purchased by the defendants, Mr Goymour and his partner. They are both, according to the papers, registered architects. The lease was assigned to them in 1993.
6.	According to the papers, the upper flat was still in a dilapidated state and the photographs which one can see at page 36 of the bundle (photographs 53 and 97 in particular) show that certain parts of the flat were open to the elements. The defendants bought it with a view to carrying out extensive renovation and making it their permanent residence.
7.	The claimant still holds the reversionary interest and, of course, the parties are subject to the terms of the lease. The claimant, as have said, still lives in the flat below. The parties share a front door, communal hall and the stairwell to the upper flat. 
8.	According to the claimant's statement the relationship between the parties was initially cordial, but deteriorated when the details of the work that they were proposing to carry out started to arise. He said that the defendants were attempting to compel him to mend the roof of the house. He was frank about his financial position and difficulties arose.
9.	The fall out between the parties has been the subject of extensive litigation. That has seen the parties attend the court on many occasions. In the papers it appears that it is 13 occasions, but the claimant told me that some of those were dealing with taxation. At one stage the claimant was committed to prison for 14 days for contempt of court, having failed to comply with an order made by the court which required him to comply with certain of the lessor's covenants. To put it in general terms, the complaint made against the claimant was that he had failed to carry out obligations of repair and insuring the building. He also complained against the defendants that they had not properly informed him of their proposed remedial work. 
10.	After the order which sent the claimant to prison for 14 days, the proceedings came back to the Central London County Court at the instance of the defendants. His Honour Judge Quentin Edwards QC, on 9th September, ordered that they should be at liberty to execute certain work and he ordered that it should be carried out by one or more building contractors that were named. He ordered that the defendant and any person acting on his behalf or his instructions should not hinder or restrain the work. But he gave the claimant liberty to instruct a surveyor to inspect the work at reasonable times, and ordered that the defendants should afford the surveyor proper facilities for such inspections. In essence, the defendants were given liberty to carry out essential repairs subject to an order to safeguard the claimant's rights. 
11.	That unfortunately did not resolve the dispute between the parties. In 1998 the claimant brought the proceedings with which I am concerned against the defendants and sought an ex parte injunction. The facts upon which that was based can be gathered from the judgment of His Honour Judge Ryland given on 21st December 1998. Essentially that injunction was to prevent the defendants using two fireplaces they had recently installed, and to prevent them treading on or moving furniture on their floor and to require them to replace pictures in the hall that they had removed. His application was supported by an affidavit stating that the fireplaces would be dangerous due to wooden joists the defendants had installed in the chimney breasts. The floor was said to be new and of a type not permitted, being a heavy wooden floor that created noise and rendered the ceiling in the flat below unsafe. It was also stated in the affidavit that no permission had been given to remove the pictures. 
12.	The injunction was granted on 6th November 1998 by Mr Recorder Nicol, although the order appears to have been unsigned. Upon it being served upon the defendants, they attended court with their solicitors to seek to have it discharged. The application was heard by the duty High Court judge sitting as judge of the Central London County Court. He discharged the injunction and ordered that Mr Tribelnig should not interfere with the defendants' access to the upper flat. 
13.	The claimant then applied to the court to reinstate the injunction. The matter came back before the court. The judge accepted undertakings by the defendants and gave the claimant access to the upper flat for a one‑hour inspection of the premises. Upon those undertakings, the judge ordered the claimant to serve his particulars of claim. 
14.	The matter came back on 21st December. The judge held that there was no evidence to suggest that the fireplaces would create a risk. He also held that there was insufficient evidence to show that the flooring that the defendants had fitted was without the claimant's agreement or would cause damage and inconvenience. He dealt with the pictures and came to the conclusion that there was no justification for an emergency injunction. At that stage the matter started to move towards a trial, with pleadings being served by both parties.
15.	The action came before His Honour Judge Pillay in the Central London County Court. He heard the case over five days, split three days and then two days. He gave judgment on 28th September 2000. He found substantially for the defendants. He did find for the claimant and ordered the defendants to clean and put right damage to the communal entrance which included reinstating the moulding, finishing plasterwork and cleaning off mortar splashes and all necessary consequential works. However, he dismissed the rest of the claims made by the claimant. I will come to the ones which the claimant specifically drew to my attention. 
16.	The judge said that he found the evidence of Mr Goymour and Mr Gregson, who was the expert called on behalf of the defendants, more reliable and more in keeping with the reality of the situation than that of the claimant and Mr Tarling who was the expert called on behalf of the claimant. He said that Mr Goymour was honest and genuine in his desire to execute the building works to a high and enviable standard, acting reasonably so as to enhance the quality and living conditions within the premises which included the common parts. 
17.	Having said that, the judge then went on to consider the particular matters in dispute. Firstly he came to the allegation of trespass to the roof. This is a matter which I shall have to come back to when considering the claimant's application to introduce fresh evidence. However the judge held, preferring the evidence of the expert called on behalf of the defendants, that: 
“... in my judgement the defendants were entitled as part of the works carried out, to do what they did namely raising the roofline in order to completely insulate the lintel and weatherproof it. In my view, the claimants have failed to establish that what was done by the defendants was unlawful or not in keeping with good building practice and therefore accordingly justified. It follows that the claimant's complaint fails.” 
18.	The second matter was the installation of the hardwood floor. As to that, the judge said that he accepted Mr Gregson's evidence: 
“... that the replacement flooring did not result in a different arrangement to that which was already there and any discussion about weight distribution was academic in this context.” 
19.	The judge went on to consider the complaint of nuisance and recorded that Mr Goymour had conceded that on one occasion in July 1996 he had deliberately caused a nuisance. He recorded that it was plain from the evidence that since the new floor had been put down there had only apparently been one complaint about noise compared with previously. Upon that basis he rejected the complaint. 
20.	Next I come to the timber joist cut into the chimney breast. As to that, the judge said complaint was made that the timber joists were cut into the brickwork of the chimneys located within the roof space, such as to constitute a fire hazard and contrary to the building regulations which required a 200 millimetre brickwork barrier between a flue and timber. That, it was said, constituted a trespass. 
21.	As to that, he recorded that the defendants had submitted that there was no evidence to indicate the true dimensions or size of the brickwork barrier as it existed. The judge said:
“The burden of proof being upon the claimant to establish the facts upon a balance of probability, and in the absence of any cogent evidence, I reject the claimant's contention, not least, because it is inconceivable having regard to the quality and extent of the refurbishment that competent builders would have compromised the joists as contended for by the claimant. It therefore follows that I likewise reject the claimant's complaints.” 
22.	Mr Tribelnig's notice of appeal states that he wishes to adduce extra evidence and to deal firstly with the character of both of the defendants and their expert witness. He also wished to adduce further evidence relating to the flue and also the roof repairs to which I have referred. This court is a court which reviews rather than rehears. Although the principles laid down in Ladd v Marshall [1954] 1 WLR 1489 are no longer a requirement, it is the law that the guidance given in that case still applies. In that case it was held that evidence would not be admitted in this court unless it could be established: firstly, that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that if given it would probably have an important influence on the result of the case; thirdly, the evidence must be such as is presumably to be believed. 
23.	All three types of evidence, to which Mr Tribelnig referred, fall outside the first category. He knew the names of the witnesses to be called and it was open to him to introduce evidence as to their character. He knew that the matter relating to the flue was going to be an issue in the case, as it was, but according to the judge he failed to call the correct evidence. He told me that he could produce evidence that would establish that the brickwork was not in accordance with the building regulations. That is evidence which should have been produced before the judge, and there would not be a chance of this court allowing it to be introduced. There was no justifiable excuse for the omission.
24.	As to the roof repair, that was dealt with by the judge. The claimant says he has climbed up a ladder and has evidence by way of photographs that the facts are not as stated by the judge. But again that is evidence which should have been put before the judge and there is no realistic chance of such evidence being admitted in this court. There must be finality in litigation.
25.	Having listened to the claimant, his appeal is really based upon his application to introduce fresh evidence. In my view there is no realistic chance of such evidence being accepted in this court. One therefore comes back to the findings of fact made by the judge. Those findings of fact were based upon the judge's acceptance of the evidence of the defendants and their expert witness. He saw the witnesses give their evidence. He had that advantage over the Court of Appeal which does not see the witnesses. 
26.	In those circumstances, I do not believe there is a realistic chance of this court reversing the findings of fact based, as they were, upon the evidence of the witness that he preferred over the expert witness called by the claimant. 
27.	In my view, this is a case which was decided on the facts by the judge. Without the fresh evidence there is no real chance of it succeeding on appeal. As I have said, the fresh evidence would not be admitted. This application must be refused. 
ORDER: Applications for an extension of time, permission to rely on fresh evidence and permission to appeal refused.
(Order not part of approved judgment)