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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Carey v Wellum and Wellum [2021] JRC 211 (16 August 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_211.html Cite as: [2021] JRC 211 |
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Magistrate's Court Appeal - reasons for dismissing the appeal
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Before : |
Sir Michael Birt, Commissioner, and Jurats Crill and Christensen |
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Between |
Christopher Carey |
Appellant |
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And |
(1) Steve Wellum |
Respondents |
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(2) Jackie Wellum |
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The Appellant appeared in person.
The Respondents appeared in person.
judgment
the COMMISSIONER:
1. This is an appeal by the Appellant (to whom we shall for convenience refer as "the Plaintiff") against a decision of the Magistrate, Mr P Harris, sitting in the Petty Debts Court, dated 24th February 2021 whereby he dismissed the Plaintiff's claim in the sum of £12,226.70 in respect of work carried out in relation to refurbishment of a flat owned by the Respondents (to whom we shall refer as "'the Defendants").
2. The Magistrate gave a short oral judgment on 24th February 2021 and subsequently produced a written judgment. Somewhat confusingly, this is, dated 21st February 2021 ("the Judgment"), but we were informed that it was in fact issued well after the decision was given on 24th February.
3. We announced our decision to dismiss the appeal on 4th August and now give our reasons.
4. The essential background to the Plaintiff's claim is as follows. The Plaintiff and the Defendants were well known to each other and, indeed, were friends. The Defendants are the owners of a property known as 13, The Parade, St Helier, in which there is a first floor flat known as Flat 1 ("the Flat"). The ground floor consists of commercial premises where previously Mr Wellum had carried on his photography business. In 2018, the Defendants decided to refurbish the Flat. It was agreed that the Plaintiff, who is a decorator, not a builder, by trade, would undertake the work. He produced a handwritten quotation dated 1st March 2018 which was typed up by Mrs Wellum. It was a very brief document described as 'Quotation for interior refurbishment works at Flat 1....' and quoted a sum of £24,175.
5. During the course of the work, the electrician employed by the Plaintiff advised that the ceilings needed to be taken down in order to allow the rewiring to be done. At this stage, the Plaintiff suggested to the Defendants that the job 'was a bit too big for me and was out of my remit', but he was encouraged to carry on. He said that he had never done such work before and so was unable to put a costing on it. The original quotation had not included the extra works required because of the removal of the ceilings.
6. During the course of the work, the Plaintiff suffered an accident on another site which required him to be in hospital for a week and then in a wheelchair for two weeks, before wearing a cast for several months. He continued to monitor the work being undertaken at the Flat by tradesmen on his behalf. He accepted that this led to some delay in the project. The Defendants had always intended to let the Flat and the tenants, who were vacating another flat in the property, moved in on 28th June 2018.
7. During the course of the project, the Defendants made various interim payments. On 26th July 2018, the Plaintiff submitted a final invoice. This was for a total of £50,176.70 comprising the original quotation of £24,175 and additional work in the sum of £26,001.70. At that stage, the Plaintiff estimated that the Defendants had made interim payments in the total of £32,950, leaving a total outstanding of £17,226.70.
8. The Defendants responded shortly thereafter with an email (undated but apparently sent in early August 2018) which protested that the job was unfinished and that much of the work was substandard, with the result that they were incurring charges in completing and rectifying the work. They further alleged that the three to four week estimate had turned into four months and accordingly they had lost anticipated rental in respect of the Flat. They declined to pay any further sums.
9. On 9th January 2020, the Plaintiff issued a summons claiming £17,226.70 and judgment in default of appearance was obtained on 22nd January 2020.
10. An application to set aside that judgment was granted on 11th March 2020 on the basis that the Defendants had not in fact received notice of the proceedings and the matter came back before the Magistrate for hearing on 22nd February 2021. By then, it had been agreed that in his original invoice, the Plaintiff had forgotten to include a further interim payment by the Defendants of £4,900 with the consequence that the amount actually being claimed was £12,326.70.
11. We have had the opportunity of reading the transcript of the hearing. The parties and witnesses had produced affidavits and these were taken as their evidence in chief. They were then cross-examined. There was no counterclaim but the Defendants claimed a set off in respect of monies which they had to spend or losses which they had suffered as a result of delay and/or unsatisfactory work. They also queried certain of the charges for additional work included in the invoice of 26th July 2018. As there was no counterclaim, they could not recover any sum from the Plaintiff even if, as they alleged, they had paid, or would have to pay out, sums to rectify the position which exceeded the amount claimed by the Plaintiff.
12. As well as the parties, the Magistrate heard from a Mr Paul Cowieson, who was a builder and a friend of the Plaintiff. He visited the Flat on 21st January 2021. He considered that the work had been carried out in a satisfactory manner but agreed that there were some works which needed attention, which he would describe as a snagging list. When giving evidence, he provisionally estimated an allowance of £1,200 in respect of snagging.
13. The Magistrate also heard evidence from Mr Stuart Green, a quantity surveyor. He visited the Flat on 20th October 2020 and again on 21st January 2021. He prepared a preliminary report after the first visit and a final report after the second visit. His report estimated a figure of £69,508.84 (excluding GST) for the renovation works and he also expressed the view in his report that the workmanship appeared to be of an acceptable level, although there were a few areas where further work would be needed to be carried out. Mr Green accepted that his estimate of the value of the work was based on commercial rates and the relevant floor areas. The Plaintiff said that his quotation was on the basis of 'mates rates', i.e. a lesser rate than would otherwise have been charged because he was friends with the Defendants.
14. The Magistrate also had a written report from Mr A Cummins of Bamboo Construction, who had inspected the Flat on 12th October 2020. He considered that the work was not undertaken to the expected professional finish and estimated the cost of the necessary remedial work at £18,365 (excluding GST). However, as the Magistrate pointed out, Mr Cummins was not called to give oral evidence and the Magistrate concluded that the Plaintiff could not be adjudged responsible to the extent suggested by Mr Cummins.
15. In the Judgment, the Magistrate considered first the issue to which much of the evidence had been directed, namely whether it was necessary to remove the ceilings. He concluded that it was reasonable to carry out this work and the consequent insulation and fireproofing.
16. In the light of this decision, he turned to consider the extras claimed by the Plaintiff. It is to be recalled that the original quotation was for £24,175, whereas the final bill was for a total of £50,176.70, i.e. the extras charged came to £26,001.70. The Defendants had paid a total of £37,850 prior to the proceedings; they had thus already paid £13,675 towards the extras.
17. Before the Magistrate, the Defendants disputed five areas of the claimed extras. These totalled £3,541. Of these, the Magistrate only upheld the Plaintiff's claim to the extent of £500 in respect of the removal of skirting boards and disallowed the rest. This reduced the Plaintiff's claim by £3,041 from £12,326.70 to £9,285.70.
18. The Magistrate upheld the contention of the Defendants that in certain respects the work carried out was in breach of the warranty contained in Article 28 of the Supply of Goods and Services (Jersey) Law 2009 ("the Law") in that it had not been performed with reasonable skill and care. He accepted the evidence of the Defendants that they had been, and would be, put to expense in respect of putting right such works. He accepted the evidence of Mr Cowieson who provisionally estimated the cost of putting right what he called 'snagging' at £1,200. He also allowed £1,550 for one month's lost rental because of the delay, £510.67 for electricity work, £303.50 in respect of waste emptied into a drain by the Plaintiff's tiler and power washing of the area, £100 for damage to the lock of the front door, £90 for damage to photographs prints in the hallway, £570 for cleaning and for rubbish removal, together with £2,200 as a deduction from the estimate for carpeting, which had not been undertaken as the Defendants had elected for floorboards instead, which had been charged for as part of the extras. This came to a total of £6,524.17 which was to be set off against the Plaintiff's claim, thus further reducing the claim from £9,285.70 to £2,761.53.
19. As already stated, the Magistrate upheld the contention of the Defendants that, in certain respects, the work had not been carried out with reasonable skill and care. In particular, he found, on the basis of photographs taken by the Defendants many months after the Plaintiff had left the site, that this was so in respect of the flooring, in that there were unacceptable gaps at door thresholds and in front of a fireplace and poorly fitted beading and skirting boards.
20. He noted the evidence of Mr Green who had allowed £4,000 for the flooring and edge trims, plus extra for the skirting. In the light of this evidence, he found that the cost of remedial work to the flooring would be in excess of £2,761.53 with the result that the Plaintiff had failed to prove that any balance was properly payable to him. He therefore dismissed the claim.
21. The Plaintiff filed grounds of appeal in narrative form, but we extract the following four grounds as follows:
(i) The Magistrate should have recused himself because of a conflict of interest in that he appeared to know the Defendants and remained in court with the Defendants on one occasion for approximately fifteen minutes after the Plaintiff had left the court. The Plaintiff did not know what conversation took place during this period.
(ii) The Magistrate should not have found that work was not carried out with the requisite degree of skill and care. In particular, his finding did not place sufficient weight on the evidence of Mr Cowieson and Mr Green.
(iii) The Magistrate was wrong to disallow the extras which he did and was also wrong to find that the Defendants could set off the amounts which he determined they could.
(iv) The Magistrate should have awarded the Plaintiff his costs.
22. We shall consider each of these grounds in turn shortly but, before doing so, we need to summarise the correct approach for the Royal Court hearing an appeal against findings of fact by a judge of the Petty Debts Court.
23. In Applicant Parent v Birth Mother [2020] (2) JLR 194, the Court of Appeal summarised the correct approach for an appellate court when considering appeals against findings of fact by a first instance court. We would quote the following two paragraphs from the judgment of McNeill JA:
24. A concise summary of the approach is to be found in the observation of Marshall, Lt Bailiff in the Royal Court of Guernsey in the case of Cyma Petroleum (CI) Limited v States of Guernsey which was specifically approved and adopted by the Guernsey Court of Appeal in Simon v The Committee for Health and Social Care, States of Guernsey (8 June 2020) at paragraph 119. The relevant quotation from the judgment of Marshall LB is to be found at paragraph 44 of her judgment:
25. Although we were not referred to and are not aware of any decision of this Court which has considered the applicability of this approach to an appeal from the Petty Debts Court, we have no doubt that the approach must be the same. In other words, an appeal against a finding of fact by a judge of the Petty Debts Court will not be allowed simply because the members of the Royal Court consider that they would have reached a different conclusion. It is only if the decision under appeal is one that no reasonable judge could have reached that an appeal against a finding of fact will succeed.
26. As stated above, although he did not raise any objection to the Magistrate sitting at the time, the Plaintiff submits that the Magistrate should have recused himself on the grounds of a perceived conflict of interest (more properly characterised as a suggestion of apparent bias). The test for apparent bias is well established. It is whether the fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal is biased; see Bisson v Minister for Infrastructure [2019] JCA 181 per Lord Anderson JA sitting as a single judge of the Court of Appeal.
27. The Plaintiff says first that the Magistrate appeared to know Mr and Mrs Wellum because, at the initial hearing on 22nd January 2020 when judgment in default was given, the Magistrate stated that he knew that Mr Wellum no longer had his business at The Parade. This remark was made in the context of the fact that the Plaintiff had sent notice of the proceedings to the Defendants at 13 The Parade. In our judgment, nothing untoward can be inferred from this remark. The business premises in question lie some two hundred yards or so from the Magistrate's Court and anyone who regularly walks or drives past the address would be aware that the business premises are no longer occupied by Mr Wellum pursuant to his photography business, but are now occupied by another business. Before us, Mr Wellum confirmed that he did not know the Magistrate. We find it impossible to infer from this remark that the Magistrate knew Mr and Mrs Wellum to the extent that he was not in a position to be perceived as trying the matter fairly and should have recused himself.
28. The Plaintiff relies secondly on the fact that, at an interim appearance on 28th October 2020, at a time when there were severe Covid restrictions in place, the Plaintiff was ushered out of court after a hearing, leaving the Defendants in the court with the Magistrate still there. In his notice of appeal, he asserts that they remained in the court for an additional fifteen minutes and he does not know what conversation took place between Mr and Mrs Wellum and the Magistrate during this period.
29. During the course of the appeal, it transpired that, after leaving the court, the Plaintiff went immediately to his car in the car park and the fifteen minutes referred to the period before he saw the Defendants emerge from the Magistrate's Court building. He could not say therefore where they were after he left the court.
30. Mr Wellum stated during the appeal that he and his wife were escorted out of the court immediately after the Plaintiff had left and the Magistrate exited through a different door, which we take to be the judge's entrance. No conversation took place with the Magistrate. The hearing had ended and it was simply a question of people leaving in accordance with the Covid requirements. Mr Wellum said that, having left the court a matter of moments after the Plaintiff, Mrs Wellum went to the toilet and that was why it was some fifteen minutes before they left the building, at which time they were seen by the Plaintiff.
31. In our judgment, there are no grounds for the Court to find that there was any private conversation between the Magistrate and the Defendants. The Plaintiff's suspicion is built entirely on the fact that he left the court before the Defendants and did not see them again until some fifteen minutes later when they emerged from the building. He has simply drawn an inference that during that time they remained in court and may have spoken privately to the Magistrate. There is simply no evidence to suggest that this was the case and Mr Wellum was clear in his assertion that he and his wife left the court very shortly after the Plaintiff. Accordingly we find that there is no evidence that anything untoward occurred and no grounds upon which the Magistrate should properly have recused himself.
32. Although he did not raise it in his grounds of appeal, the Plaintiff, in oral submissions, complained that when he was in the witness box the Magistrate had asked virtually all the questions, whereas he had not asked as many questions of Mr and Mrs Wellum. In the light of that submission, we have carefully reviewed the transcript. It is certainly the case that the Magistrate asked many questions of both parties but, where there were two litigants in person, we do not find that surprising. It is often the case that, when litigants represent themselves, a judge has to ask many more questions, not only to clarify what is being said, but also to ask of a witness some of the questions which might have been put to that witness by an advocate if the opposing party had been legally represented. Having reviewed the transcript, we see nothing improper with the extent or nature of the Magistrate's questions to any of the parties or witnesses.
33. In the circumstances, we reject Ground 1. There are no grounds for concluding that this was a case where the Magistrate should have recused himself or where the fair-minded and informed observer would conclude that there was a real possibility that the Magistrate was biased.
34. The Plaintiff's second ground of appeal is that the Magistrate should have placed greater weight on the evidence of Mr Green and Mr Cowieson to which we have referred above. They both expressed the opinion that the quality of work was satisfactory.
35. The difficulty is that, as the Magistrate pointed out in the Judgment, neither Mr Green nor Mr Cowieson was asked about the flooring when they gave evidence. They were not referred to the photographs which were relied upon by the Magistrate and had been put to the Plaintiff when he gave evidence. These showed significant gaps at the edges of the flooring. There were gaps between the flooring and the fireplace, between the flooring and door thresholds, and between the flooring and skirting boards.
36. In his evidence, the Plaintiff accepted that these gaps were not acceptable but asserted that they were not present when the job was finished. Whilst he had not done the work himself and had employed others to do it on his behalf, he had seen the final work before he left the site. He said that in relation to some of the gaps, these might have been caused by movement or where mastic had either come out or been taken out. He speculated that the people living in the Flat might have done that. In relation to the gap at the edge of the flooring where it abutted the fireplace, the Plaintiff said in evidence that he did not really have an answer for that but there was no way that he would have left it in that condition.
37. The Magistrate was faced with conflicting evidence. There was the evidence from Mr Cowieson and Mr Green that the work was generally carried out to a satisfactory standard, but they were never asked about the gaps at the edge of the flooring. There was the evidence of the photographs and of the Defendants, together with the evidence of the Plaintiff where he accepted that the gaps existed as shown in the photographs but denied that he (or the workmen he employed) were responsible for them on the basis that all was well when he left the site. The Magistrate was aware that the relevant photographs were taken in October 2020, i.e. more than two years later.
38. In these circumstances, it cannot, in our judgment, possibly be said that the Magistrate reached a conclusion which no reasonable judge could have reached. The photographic evidence was powerful, Mr Green and Mr Cowieson were not asked about the photographs or the gaps in the flooring, and the Plaintiff's explanation for the gaps shown in the photographs could well be regarded by a reasonable judge as unconvincing.
39. The Plaintiff also relied upon Mr Green's evidence that he would consider the work undertaken to justify a charge of £69,508, which was of course more than the total amount charged by the Plaintiff, namely £50,176. However, as the Magistrate said, the Plaintiff had quoted at 'mates rates' and the question for him was whether the extras were properly chargeable. The amount which some other contractor might have charged overall for the project was not material to that issue.
40. During the hearing of the appeal, the Court went through with the Plaintiff the various items which the Magistrate had either disallowed as extras or had allowed to the Defendants by way of set off. In response to a question from the Court, the Plaintiff accepted that certain deductions from the sum originally claimed were not disputed. These were £1,200 in respect of snagging in view of Mr Cowieson's evidence, £2,200 in respect of the amount allowed in the original quotation for carpeting (which was not in fact proceeded with), £1,550 in respect of one month's lost rental for the Defendants because of the delay, and £510.67 in respect of electrical works which were still to be finished when the Plaintiff left the site. These sums came to £5,460.67 with the consequence that the claim was reduced from £12,326.70 to £6,866.03.
41. We turn therefore to consider the items where the Plaintiff contends that the Magistrate reached a wrong conclusion.
42. The Plaintiff claimed £1,984 as additional work for 'Clean and Unibond all walls in preparation for plastering throughout; remove all existing skirting boards'. However, a further extra item in the sum of £6,606 under the heading 'Plastering' was 'bond all large areas where necessary in preparation for plastering, skim all ceilings and walls'. The Defendants submitted that this was a duplication and that the bonding in preparation for plastering was charged twice.
43. As the Magistrate pointed out in his Judgment, the Plaintiff did not address this issue when giving evidence. There was, therefore, simply no response to the contention on the part of the Defendants that there had been duplication in respect of the bonding in preparation for plastering. It was therefore a reasonable decision for the Magistrate to disallow this sum. However, he accepted that included in a figure of £1,984 was work to 'remove all existing skirting boards'. He noted that Mr Green, in his report, had allowed £661 for this item. Given that throughout the Plaintiff had charged less than Mr Green allowed, the Magistrate considered that £500 was a sufficient allowance for this work. In the light of the evidence, we cannot find that that was an unreasonable decision.
44. The second item of extras disputed by the Defendants is the sum of £108 charged for 'supply and fit new handrail in hallway'. The Defendants asserted that the existing handrail had been removed by the Plaintiff's workmen. As the Magistrate stated at paragraph 22 of his Judgment, the Plaintiff did not produce any evidence in support of this item. Before us, he merely asserted that he did not agree with the Magistrate's conclusion. In our judgment, on the evidence before him, the Magistrate reached a reasonable conclusion. He was entitled to accept the Defendants' evidence.
45. The third item of disputed extras is the sum of £800 under the heading 'Decorating - changed from original Redecoration Quote to Newbuild'. The narrative under this heading was as follows:
"Mist coat and apply two coats to ceilings and all walls throughout.
Prime woodwork where necessary.
Fill, rub down and mastic skirting boards and frames
Apply 2 undercoats and 1 coat of satin to all windows, doors, frames and skirtings."
46. The Defendants submitted that all of this work was included in the original quotation which included the sum of £2,000 in respect of 'To decorate all ceilings, walls, windows and woodwork. Choice of white or colour paints'.
47. As the Magistrate again pointed out, the Plaintiff produced no evidence in support of this extra item. He did not explain why this work did not fall within the original quotation. We therefore uphold the Magistrate's determination as being a reasonable conclusion in the light of the evidence before him.
48. The fourth item of disputed extras was the sum of £463 for which the narrative was 'mastic bathrooms and kitchen and doorframes and treads'. Again, as the Magistrate pointed out, the Plaintiff did not produce any evidence in support of these costs. The natural inference, as the Defendants contended, was that all materials would be included in the original quotation. Before us, the Plaintiff submitted that one did not need mastic if the floors were to be carpeted and this had been the intention at the time of the original quotation. That was why the mastic was charged as an extra. However, it is too late to raise this point on appeal. It should have been raised by the Plaintiff before the Magistrate, at which time it could have been explored in evidence as to whether it was correct and, in particular, whether, if correct, it applied to all the areas mentioned in the invoice for extras. On the basis of the evidence produced to the Magistrate, his conclusion was reasonable.
49. The fifth item of disputed extras is the sum of £186 under the heading 'Cleaning' of which the narrative is 'General builders clean'. As the Magistrate again said, the Plaintiff did not produce any evidence in support of this item of extra costs. In our judgment, it is implicit in a quotation by a builder or decorator that the site will be left in a clean and tidy condition at the end of the work and that the cost of cleaning and tidying is included in the quotation. No client would be happy to be left with an unclean or untidy site which the client then had to pay to sort out. Before us, the Plaintiff accepted that in his initial report dated 27th October 2020, Mr Green had said that the cost of the builders' clean should have been included in the original quotation. The Plaintiff accepted that he should have included this, but said that he did not and that was why it was now being claimed as an extra.
50. In our judgment, this argument does not assist the Plaintiff. If he omitted to include provision for the builders' clean in the original estimate when he should have done, the cost of carrying out the cleaning cannot now fall upon the Defendants. The cost of the Plaintiff's error must be borne by him, not by the Defendants.
51. In summary, we uphold the Magistrate's determination in respect of all the disputed items of extra expenditure as being decisions reasonably open to him on the basis of the evidence before him.
52. At paragraphs 24 - 30 of the Judgment, the Magistrate considered the claims by the Defendants in respect of expenditure which they said they had incurred as a result of failures on the part of the Plaintiff. The issue for the Magistrate was whether he accepted these claims, so the amounts could be set off against anything found to be due to the Plaintiff.
53. As already stated, the Plaintiff does not dispute the Magistrate's conclusions in respect of one month's loss of rent (£1,550), the cost of completing the electrical works (£510.62) and the allowance for the fact that carpeting was not in fact proceeded with in view of the decision to use wooden flooring (£2,200). He also accepted an allowance of £1,200 for snagging.
54. We shall therefore only consider those items of set off which the Magistrate allowed but which the Plaintiff continues to dispute.
55. The first item is the sum of £530.35 which was claimed by the Defendants in respect of two visits by drain cleaners in order to clear the drain serving the flat. There were two visits by drain cleaners, one in October 2018 (£199.50) and one in October 2019 (£330.75). The Defendants also claimed £238.50 for power washing the yard. It does not appear to have been disputed before the Magistrate - and the Plaintiff did not dispute before us - that the tiler employed by the Plaintiff had poured water with cement in it down the drain. The Magistrate refused to allow the costs of the second visit by drain cleaners in October 2019 on the basis that it was too remote from any damage caused by the tiler's actions. As to the first visit costing £199.50, he accepted the Plaintiff's point that the drain also served another flat and the shop at the property. He therefore only allowed the sum of £65 by way of set off, being approximately one-third of the first invoice. However, he allowed in full the power washing invoice paid by the Defendants in the sum of £238.50, with the result that he allowed £303.50 in respect of this head of set off.
56. Before us, the Plaintiff accepted that some of the first drain invoice could be attributed to the actions of the tiler but disputed the power washing invoice. In our judgment, there was evidence before the Magistrate in the form of photographs to support the Defendant's evidence that the area was left in a dirty condition as a result of the tiler pouring cement filled water down the drain and we cannot categorise his decision to allow the power washing invoice in full and £65 in respect of the second drain invoice as being unreasonable.
57. The second disputed item of set off was the sum of £100 in respect of a lock on the front door which the Defendants asserted had been damaged during the course of the work. According to the Judgment, the Plaintiff made no objection to this item but before us, he said that he did not accept that his workmen had damaged the lock.
58. The Defendants had referred to the damage to the lock not only in their affidavit and in Mrs Wellum's oral evidence, but they had also mentioned it in their initial email of complaint in August 2018 following receipt of the invoice for the extras. We were not referred to any passage in the transcript where the Plaintiff contradicted the Defendants in relation to the damage to the lock and our own inspection has not revealed any such passage. In the circumstances, it was clearly open to the Magistrate to accept the evidence of the Defendants about the damage to the lock and the cost of replacing it and there are no grounds for this Court to interfere with that conclusion.
59. The third disputed item of set off was £180 in respect of damage said to be caused by the Plaintiff's workmen to the handrail in the hallway and two canvas photograph prints hanging in the hallway. The Magistrate noted that there were photographs of the damage to the photograph prints but none in relation to the handrail. He therefore allowed one half of the sum claimed, namely £90. Again, the Defendants had given evidence about the damage to the photograph prints in their affidavit and in Mrs Wellum's oral evidence. They had also raised the matter in the email of complaint in August 2018. The Plaintiff did not address this in his evidence before the Magistrate and accordingly it was entirely reasonable for the Magistrate to find on the balance of probabilities that there had been damage to the two photograph prints and, taking a broad brush approach, to allow one half of the sums claimed to cover the damage to the photograph prints.
60. The final item of set off was in the total of £570 in respect of cleaning the Flat (£140), cleaning the hall carpet (£130) and removal of rubbish (£300). The Defendants had addressed this issue in their affidavit and Mrs Wellum also gave oral evidence to the effect that the place was an absolute mess and there was rubbish left everywhere. The Magistrate said that he accepted their evidence as to the condition of the Flat and allowed the above sums. However, the Defendants had also claimed for a new hallway carpet and he rejected this claim on the basis that he was not persuaded that a replacement hall carpet was necessary.
61. Before this Court, the Plaintiff said that he disputed the need for cleaning. As listed in the extras which he claimed, he had already arranged for cleaning. He asked rhetorically, if it was as bad as the Defendants said, how could the tenants have moved in?
62. In our judgment, it was open to the Magistrate, who saw and heard the Defendants give evidence, to accept what they said as to the condition of the Flat and the need for cleaning and removal of rubbish and we are not persuaded that such a conclusion was unreasonable.
63. In summary, none of the conclusions of the Magistrate in relation to the items of set off can be considered as being outside the band of decisions reasonably open to him and accordingly the Plaintiff's appeal against those findings is unsuccessful.
64. As described above, after reducing the Plaintiff's claim for those extra items which were disallowed, and after further allowance for the items which the Magistrate permitted by way of set off, the Plaintiff's claim was reduced to £2,761.53.
65. That left outstanding the question of rectifying the defects to the flooring referred to earlier. Although there was no detailed estimate before the Magistrate in this respect, he concluded by reference to the report of Mr Green that the likely cost of remedial work to the flooring would be in excess of the figure of £2,761.53. In our judgment, that was a conclusion which was reasonably open to him and accordingly which he was entitled to reach. The Plaintiff had therefore failed to prove on the balance of probabilities that he was entitled to any further sum from the Defendants.
66. For the reasons we have given, we are satisfied that none of the Magistrate's conclusions can be categorised as being a conclusion to which no reasonable judge could arrive. It was for him to assess the oral and written evidence before him and his overall conclusion was well within the discretionary area allowed to a first instance judge. It follows that the Plaintiff's appeal is dismissed.
