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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Khan v London Borough Of Merton [2001] EWCA Civ 1599 (15 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1599.html Cite as: [2001] EWCA Civ 1599

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
(HIS HONOUR JUDGE ELLIS)

		Royal Courts of Justice Strand London WC2 Monday, 15th October 2001

Monday, 15th October 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Mohammed Khan, who appears in person, together with his litigation friend Mr Aslam, who has addressed me, for permission to appeal against an order made by Park J on 29 June 2001 dismissing his appeal from an order made by His Honour Judge Ellis on 20 November 2000. The primary ground upon which Mr Khan seeks permission to appeal is a procedural one; namely that since his case had been (as he asserts) allocated to the multi-track, an appeal from the decision of Judge Ellis lay not to the High Court but direct to the Court of Appeal, pursuant to Article 4 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000. Should he succeed on that ground, with the consequence that Park J had no jurisdiction to entertain an appeal from the decision of Judge Ellis in this case, then Mr Khan invites this court to treat his application as an application to appeal out of time from the order made by Judge Ellis.
2. The background to the application is in summary as follows. Mr Khan was tenant of premises in Mitcham comprising a shop with living accommodation over. His tenancy was a business tenancy to which Part II of the Landlord & Tenant Act 1954 applied. The landlord of the premises was the London Borough of Merton. When the term of the tenancy was about the expire Mr Khan applied for a new tenancy pursuant to section 26(6) of the Act. The Council in response gave notice opposing Mr Khan's application. The ground relied upon by the Council in opposing the renewal of the tenancy was that which is set out in section 30(1)(c) of the Act as follows:

"The tenant ought not to be granted a new tenancy in view of other substantial breaches by him of his obligations under the current tenancy or for any other reason connected with the tenant's use or management of the holding."

3. I note that the word "other" where it first appears in that provision is a reference to breaches other than those described in the preceding paragraphs of the subsection.
4. Mr Khan's application was heard by Judge Ellis in Croydon County Court, and was dismissed. The judge made an order for possession of the premises by 21 March 2001. The judge found that Mr Khan had sold cigarettes from his shop, contrary to a provision in the tenancy, although the judge did not find that to be a "substantial" breach for the purposes of the Act. More seriously, he found as a fact that Mr Khan had sublet the living accommodation over the shop for rent, contrary to an express prohibition against underletting in the tenancy agreement. In the exercise of his discretion the judge went on to conclude that in all the circumstances the tenancy should not be renewed.
5. It is to be noted that the only witnesses to give oral evidence at the hearing were Mr Khan himself and a Mr Tye from the Council. Both sides relied on witness statements, the authors of which were not in the event called to give oral evidence. For his part Mr Khan relied on witness statements made by the two alleged sublessees, a Mr Ammar Khan and a Mr Adnan, to the effect that they had occupied the living accommodation rent-free, and that they were employed to work in the shop. Had their employment as such been established, then there would, under the terms of the tenancy agreement, have been no breach of Mr Khan's obligation not to sublet.
6. The Council for its part relied on witness statements by, among others, two police officers who stated in their statements that, in the course of an interview, the two gentleman in question, Mr Ammar Khan and Mr Adnan, had admitted that they were sublessees of the living accommodation and were paying rent to Mr Khan.
7. Judge Ellis recognised that it was a matter for him what weight to attach to those witness statements, given that the authors of them had not been called to give oral evidence and to be cross-examined. In the event, the judge attached greater weight to the statements by the police officers than those by Mr Ammar Khan and Mr Adnan. Basing himself upon the police officers' statements, he concluded that the allegation of subletting had been made out. As he put it in the course of his judgment at page 13 of transcript:

"I am therefore driven to the conclusion, from the evidence to which I referred, that the claimant, notwithstanding his denial of this, has habitually let out the upstairs rooms and obtained the benefit of rent from those rooms."

8. The judge went on to consider how to exercise his discretion. Having weighed the relevant factors the judge concluded that he should exercise his discretion by dismissing Mr Khan's application; and he refused permission to appeal.
9. Mr Khan then applied to the High Court for permission to appeal and permission was granted by Laddie J on 5 April 2001. The substantive appeal was heard by Park J who, by his order dated 29 June 2001, dismissed it. Park J concluded that there was no basis upon which Judge Ellis' finding as to subletting could be challenged on appeal. As Park J put it (page 7D of his judgment):

"I cannot possibly say that the judge was wrong in the conclusion which he reached on this important issue."

10. Park J went on to conclude that Judge Ellis had not erred in any way in the exercise of his discretion, and accordingly there was no basis upon which an appellate court, exercising its jurisdiction to review a decision made below, could exercise that discretion afresh. He accordingly dismissed the appeal.
11. Before addressing the substantive issues with arise, I turn first to the jurisdictional point sought to be taken by Mr Khan.
12. In my judgment, Mr Khan's jurisdictional point is misconceived. Mr Khan's application was brought under the alternative procedure for claims contained in Part 8 of the Civil Procedure Rules. Rule 8.9(c) provides that where the Part 8 procedure is followed, "the claim shall be treated as allocated to the multi-track..." But that does not mean that the application was in fact allocated to the multi-track for the purposes of Article 4 of the Destination of Appeals Order to which I referred earlier this judgment. That indeed is made clear by the decision of this court in Tanfern Ltd v Cameron-MacDonald [2000] All ER 801. In paragraph 16 of Brooke LJ's judgment in that case, he dealt with this aspect of the matter as follows:

"The normal route of appeal will not be followed where a district judge or a circuit judge in the county court, or a master or a district judge of the high court gives the final decision in a multi-track claim allocated by a court to the multi-track... This exception does not apply to a decision made in a Part 8 claim (which is treated as allocated to the multi-track pursuant to CPR 8.9 (c))."

13. The court has received confirmation from Croydon County Court that the case was not (as it is put) "formally" allocated to the multi-track. This is indeed in accordance with the Civil Procedure Rules. It is accordingly clear, in my judgment, that Park J had jurisdiction to entertain Mr Khan's appeal.
14. It follows that there is, in my judgment, no substance in his procedural ground for seeking permission to appeal. It follows that so far as this court is concerned Mr Khan is seeking permission to appeal from a decision (that is, the decision of Park J) which was itself a decision given on appeal. Rule 52.13 of the Civil Procedure Rules accordingly applies. Under that rule, the Court of Appeal will not give permission for a second-tier appeal such as this unless it concludes (a) that the appeal would raise an important point of principle or practice, or (b) that there is some other compelling reason for the Court of Appeal to hear it.
15. I have considered with the help of Mr Aslam an affirmation made by Mr Khan on 11 October 2001 in which he sets out very clearly the various points which he seeks to make in support of his substantive application for permission to appeal. In my judgment, however, giving all the consideration I can to all the points raised in that affirmation, Mr Khan's application satisfies neither of the two requirements set out in Rule 52.13 of the Civil Procedure Rules. Park J went into the matter in very great detail, as one would expect, and with very great care, and indeed he showed much sympathy for Mr Khan in the unfortunate position in which he finds himself as a result of the dismissal of his application and with an order for possession over his head. He concluded, however, as I indicated earlier, that there was no basis upon which he could interfere with the judgment of Judge Ellis. Equally, and notwithstanding the serious consequences which follow from the order made so far as Mr Khan is concerned, I can for my part see no possible grounds for interfering with Park J's conclusions in that respect.
16. I accordingly conclude that the proposed appeal would be bound to fail, and upon that basis I dismiss the application.
(Application dismissed; no order for costs).