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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Gulf Agencies Ltd v Ahmed [2016] EWCA Civ 44 (03 February 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/44.html Cite as: [2016] EWCA Civ 44 |
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ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE MITCHELL
2CL01677
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE KING
and
LORD JUSTICE DAVID RICHARDS
____________________
THE GULF AGENCIES LIMITED |
Claimant/ Respondent |
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- and - |
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ABDUL SALAM SEID AHMED |
Defendant/ Appellant |
____________________
James Holmes-Milner (instructed by William Heath & Co) for the Respondent
Hearing date: 15 December 2015
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Crown Copyright ©
Lord Justice David Richards:
Introduction
Facts
The law
"The issue before the judge was whether ABP had established that intention. That was a question of fact for the judge which had to be answered by considering the two requisite elements making up the necessary intention: (a) did ABP have a fixed and settled desire to do that which it intended to do; and (b) did ABP have a reasonable prospect of being able to bring about its desired result … The first element of the test is a subjective one. The second is an objective one."
"genuine and not colourable; that it is a firm and settled intention, not likely to be changed."
The proceedings below
Grounds of appeal
Subjective element of intention
"The reasons for my resisting their application for a new tenancy is that I require the premises for my own use as I have currently two businesses and rent two commercial premises. For economic reasons it is my intention that these two businesses will occupy these premises."
"15. My practice has been affected to some extent due to the economic downturn and I have been experiencing financial difficulties in keeping up with my monthly rental payments under the Tenancy.
16. It is not financially prudent for me to rent somewhere else and incur costs in executing the new lease of Bell Street when I am the freeholder of the premises therefore it makes economic sense for me to occupy the premises without incurring unnecessary costs in rents and rates at two different places."
"I cannot afford to be without premises to run the Mayfair car service and I intend to move the business of both the car service and legal services to the premises at 210 Edgware Road. This is for purely economic reasons to benefit all parties financially, so that Mayfair need not have to pay exorbitant rent."
"Your Honour has to decide, does he want to go in to run a business or does he want to recover possession with a view either just to kick out this tenant who he does not like or to get a foot in the door with a view to a sale?"
"But, your Honour, at the end of the day you have to decide whether my client has a genuine intention or whether he is lying."
Mr Holland had earlier summarised his understanding of the tenant's case in these terms:
"But the point is this, my learned friend has to come up with some motivation as to why my client might lie. He says my client is a liar. Let's not beat about bush here: he is a liar who concocts documents or, if he does not do that, conspires with others to get them to concoct documents deliberately to paint a false picture to this court."
Mr Holland made the same point on a number of occasions in his closing speech, in each case without any correction or qualification from Mr Holmes-Milner.
"but even now, I am not sure that I have a full account. I am not blaming the defendant over what has happened but I am blaming him for not having the landlord come to court, make a statement, produce the documents so that he could be questioned and give answers to some perfectly proper question marks."
"It is usually done as a deliberate act of obfuscation to put a smoke screen up but it really is impossible to say how this arose. It may be that somebody else had reason to interfere with this documentation, the landlord for example. It cannot be automatically said that it is the defendant who did it, but the reality is he produced these contradictory documents and they are unsatisfactory in the sense that it is not clear when he can leave either of the sets of premises. I cannot go any further but it cannot help the defence case when the documents are totally unsatisfactory, as they are."
"34. So it seems to me that on that finding, I cannot find a firm and settled intention. Yes, the defendant asserts that he has that intention but it seems to me that the material is not there to support an intention to occupy the premises for the purposes of conducting a business therein.
35. I will also add I am very well aware that in one of the reported cases it is said that the threshold for the landlord under 30(1)(g) is not very high. I am aware of that but I think I have made it plain in giving my reasons that the evidence simply is not there upon which one can say that there is an intention as opposed to, perhaps, something less than an intention to occupy the premises."
Objective element
"In Gregson v Cyril Lord Ltd [1963] 1 WLR 41, Upjohn LJ, whose judgment was read and agreed to by Diplock LJ, said at p.47:
"It seems to me that the test under the second heading mentioned at the beginning of this judgment is not subjective, that is to say, purely a matter of the state of mind of the respondents, no doubt acting on the bona fide advice of their experts. In my judgment it is essentially an objective test, that is to say, would a reasonable man, on the evidence before him, believe that he had a reasonable prospect of being able to bring about his occupation by his own act of volition? This, of course, is a question of fact to be determined on all the evidence that is before the court."
Moreover, in a case where the landlord's aspiration can only lawfully be fulfilled if he obtains a planning permission, this objective approach is to be followed in a way described by Savile LJ, as he then was, in Cadogan v McCarthy & Stone Developments Ltd [1996] EGCS 94. We have been provided with a transcript. This passage appears at p4:
"A reasonable prospect in this context accordingly means a real chance, a prospect that is strong enough to be acted on by a reasonable landlord minded to go ahead with plans which require permission as opposed to a prospect that should be treated as merely fanciful or as one that should sensibly be ignored by a reasonable landlord. A reasonable prospect does not entail that it is more likely than not that permission will be obtained."
The question for the judge was said by Laws LJ at page 48 to be "whether there was a real, and not merely a fanciful, chance that the appellant would obtain a planning permission whose effect would be that he would be allowed to run the car park business himself". The hurdle to be surmounted by the landlord "is by no means a high one": Laws LJ at page 49.
"I accept that in dealing with that there does not have to be a time limit and so, for example, as the case postulates, somebody could go into a premises, could stay for six months and then, having kept the business going, divide it amongst their family and move out. The perceived wisdom is that that would not offend the subsection. But in this case I have no evidence at all from Mr Ahmed about what he would do in the event that change of use was not permitted after a period of 18 months or two years and what consideration he has given it. It seems to me to indicate that he has not and it is yet another issue that comes under (not under the putting things into effect) the question of his intention."
Apparent bias
"JUDGE MITCHELL: Well, I'm sorry to throw you a hot potato, Mr Holland, but the Law Society seem to be unaware that your client is a solicitor. They are aware of the Freeman Solicitors Ltd, but the search for Ahmed, Abdul Salem Seid returns nil results.
MR HOLLAND: Well …
JUDGE MITCHELL: I'll hand you the search.
MR HOLLAND: It is a curveball.
JUDGE MITCHELL: It may be that there is an explanation.
MR HOLLAND: Yes.
JUDGE MITCHELL: But, at the moment, it's not looking terribly good.
MR HOLLAND: Alright, can I take instructions?
JUDGE MITCHELL: Of course. You may want some time, actually.
MR HOLLAND: Alright.
JUDGE MITCHELL: But I did a search. I put the name in and, taking it from your client's statement, which is signed with a statement of truth, I put the name in. Yes, Freeman comes up at that address, but his name does not come up as either a solicitor or a solicitor connected with that business. Unless it can be shown that he is qualified, I'm not going to start trying this case. It's not something you normally expect, but it seems to me, if he is claiming to be going to carry on a business in these premises as a solicitor, he's got to prove he's qualified. He may well be. There may be some mistake.
MR HOLLAND: Well, the one thing I will say, your Honour, is that it hasn't at any time hitherto been questioned that he is, so that's perhaps why it's not dealt with specifically. Your Honour has, of course, perhaps understandably, raised it.
JUDGE MITCHELL: I prosecuted too many swindlers when I was the Bar, Mr Holland, so I'm naturally suspicious of everybody, particularly in this court.
MR HOLLAND: Well, your Honour, I …
JUDGE MITCHELL: Look, we …
MR HOLLAND: I'm sure there is an innocent explanation.
JUDGE MITCHELL: When you've done searches for doctors who don't exist, you do get rather cynical and questioning about what is going on.
MR HOLLAND: Alright.
JUDGE MITCHELL: And we have done that in this court. Right, well look, you must have some time because obviously it has taken you completely by surprise. The other thing is this.
MR HOLLAND: Yes.
JUDGE MITCHELL: I've got to make this plain. As far as I understand it, if it is the case that he is not a qualified solicitor, it is actually a criminal offence to claim that you are a solicitor when you are not."
"JUDGE MITCHELL: Right, okay. I take that.
MR HOLLAND: So he is a solicitor …
JUDGE MITCHELL: Well, you can see why, I mean, you've got to be scrupulously careful in this court.
MR HOLLAND: Yes, well, your Honour, I accept that. I would hope that, having confirmed that your Honour's worst suspicions weren't true …
JUDGE MITCHELL: Yes.
MR HOLLAND: … that, well, we'll start with a clean slate, as it were.
JUDGE MITCHELL: Oh yes, of course."
"JUDGE MITCHELL: Yes, I accept that. You see why I took the, you know, I was somewhat suspicious …
MR HOLLAND: I think you have to go and get, you have to put the exact name in.
JUDGE MITCHELL: I tell you, Mr Ahmed, the number of people who have come in here who aren't who they say they are is quite extraordinary.
WITNESS: I wouldn't do that for a million pounds, Sir. I am also a member of the highest and oldest legal profession. I am a notary public as well and I practise from the same address, so.
JUDGE MITCHELL: Yes, that's alright.
MR HOLLAND: I'm grateful.
JUDGE MITCHELL: No, I accept that. I mean, as I say, the problem is that we get people who aren't who they say they are.
WITNESS: I understand, yes.
JUDGE MITCHELL: Yes, even doctors. We've had two or three doctors that were not qualified. It's extraordinary."
"The judge made comments at the outset of the trial (to the effect that he did not believe the Appellant was, as he asserted, a solicitor) which indicated that he had a predisposition to disbelieve the Appellant before he had given evidence and showed apparent bias."
"It is also a similar matter with the witnesses. It happens all the time at this court; I have never known anywhere like it. Witness statements get included and it is quite clear that as far as Mr El Nidani is concerned he is, it would seem from the documentation we have seen, very ill in hospital even as I am delivering judgment and it may be that he has a history of illness in that way, certainly recently. But there are ways and means – and as a solicitor the defendant should know this – of evidence being given without the need of a witness to come to court. There are video links and the judge will go to a place to take the evidence. Many of us have been to hospitals or something of that nature so that evidence can be given."
These were odd observations for the judge to make, given that he had accepted written evidence from the Royal Free Hospital that Mr El Nidani had been admitted to hospital at 4.05am on Friday 8 November 2013, with a suspected heart attack, and was, as the judge himself said, "very ill".
"So far as Mr Hilli is concerned, he too may be an important witness but he is allegedly absent in Iran and he has had a motor accident. I am afraid, and I am entitled to be slightly questioning, I have heard that a witness or a claimant or a defendant is beyond the seas and has had a road accident so many times it is very difficult to take it at face value without more. But be that as it may, efforts can be made to have witnesses give evidence. At any rate, we try the case on the evidence that we have and that is what I propose to do. I really cannot give a great deal of weight to the statements of these witnesses because they have not been called to support their assertions."
Conclusion
Lady Justice King
Lady Justice Gloster