Everett and Another v Comojo (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lady Justice Smith,Lord Justice Richards,Lord Justice Rix |
| Judgment Date | 18 January 2011 |
| Neutral Citation | [2011] EWCA Civ 13,[2010] EWCA Civ 973 |
| Docket Number | Case No: C1/2009/1241,Case No: B3/2010/0552 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 January 2011 |
[2010] EWCA Civ 973
(Mr Keith Lindblom QC Sitting as a Deputy of the High Court)
Before: Lord Justice Carnwath
Case No: C1/2009/1241
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Miss Saira Kabir Sheikh appeared on behalf of the Applicant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
(As Approved)
Lord Justice Carnwath
This is a renewed application for permission to appeal against a judgment of Keith Lindblom QC sitting in the High Court. It raises a very short point of construction of a condition on a permission for some blocks of flats in Wandsworth. The lot included some garages and covered parking for 12 cars. There was a condition (3) which states:
“The garages and car parking accommodation shall not be used for any purposes other than those incidental to the enjoyment of a dwelling house or flat and no trade or business shall be carried on therefrom.”
The reason was:
“(b) any other use of the garages would be prejudicial to the amenities of the residential building or of the area generally.”
On its face the condition does not confine use of that parking place to residents of this particular block. Looking at the plan, one can see that there are a number of other residential blocks in the immediate area. Indeed the reference to a dwelling house is difficult to understand in relation to this block, which was purely of flats. Ms Shiekh, who appears for the applicants, says simply that the condition means what it says so her clients are entitled to do what they do, which is letting the garages for people living in the surrounding area, not confined to this block.
The local authority and the inspector who upheld the enforcement notice took a different view and said that it was confined to the residents of this particular block. That view was upheld by the judge and Sir Richard Buxton refused permission to appeal on the papers.
That combination of views gives one pause but it does seem to me that this point is sufficiently arguable to justify granting permission to appeal and I so do.
It will not take more than half a day and it is suitable for two Lord Justices and a single judge if appropriate.
Order: Application granted
[2011] EWCA Civ 13
His Honour Judge Wakefield
Before: Lord Justice Rix
Lady Justice Smith
and
Lord Justice Richards
Case No: B3/2010/0552
5SM03135
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Simon Butler & Johnathan Payne (instructed by Stone Rowe Brewer LLP) for the Appellant
Lord Faulks QC & Quintin Tudor-Evans (instructed by Barlow Lyde & Gilbert LLP) for the Respondent
Hearing dates: 22 November 2010
Lady Justice Smith:
Introduction
This is an appeal by Robert Charles Everett and Carl Derek Harrison against the order of HH Judge Wakefield dated 17 February 2010 dismissing their claims for damages for personal injury arising from an incident on 9 October 2002 at a nightclub owned and managed by Comojo (UK) Ltd, the respondent to this appeal.
The appellants, who were guests at the nightclub, were injured in a knife attack perpetrated by another guest, a man named Cecil Croasdaile. He was convicted of wounding with intent to cause grievous bodily harm and was sentenced to life imprisonment; he has now been released. He was not sued. Instead, the appellants sued the company which manages the night club, alleging that it had failed to take appropriate steps to protect its guests. The appeal raises issues relating to the scope of the duty of the management of a night club in respect of the actions of third parties.
Factual background
The Metropolitan Bar, known as the Met Bar, is part of the Metropolitan Hotel, 19, Old Park Lane, London W1. Use of the bar is restricted to members and their guests save that residents of the hotel are also permitted to use it. It is possible to enter the bar either from the hotel lobby or directly from the street. The bar is managed by Mr Stuart Rosenblatt. Security staff (door supervisors) are provided by Darkstorm Trading Ltd (trading as Panther Security). The premises are fitted with CCTV cameras.
The appellants arrived at the bar at about 11pm on 8 November 2002; they were the guests of a member. A while later, one of the waitresses, Ms Tania Kotze, was kicked or tapped on the bottom by one of the group in which the appellants were standing. She suspected that it was Mr Harrison who did this although he has always denied it. She did not wish to make any complaint or fuss about this incident. However, the incident was witnessed by a club member named Sami Balubaid and it appears that he was aggrieved on Ms Kotze's behalf. He told her, more than once, that those responsible would apologise to her before the end of the evening. Mr Balubaid was a regular guest at the bar, and was known to spend freely; he was a valued customer. He was usually accompanied by a bodyguard named Abu. At some stage, Ms Kotze spoke to Ms Ezelle Alblas (who was described as 'the hostess' and was senior to Ms Kotze) about this incident and Mr Balubaid's response to it.
Some time later, Mr Balubaid asked Ms Kotze to put the name of Cecil Croasdaile (whom he described as his driver) on the guest list. This was the procedure by which the door supervisor on duty would know that a person was to be admitted. Ms Kotze consulted Ms Alblas and Croasdaile's name was put on the list. In due course he arrived. It appears that he entered the bar briefly, then left and re-entered shortly before 2am with Mr Balubaid. The two men sat at Mr Balubaid's table with a blonde woman. Croasdaile ordered a shot of tequila, which Ms Kotze thought was surprising for a driver. Croasdaile was of unusual appearance. He was not particularly tall but had an enormous physique, like a bodybuilder. He was wearing a tight-fitting top and 'combat' trousers. Ms Alblas was later to describe his demeanour as assertive, bold and aggressive. However, another member of the bar staff said that Croasdaile appeared to be in a good humour and shared a joke with another guest while standing at the bar. Ms Kotze was concerned about Croasdaile as she regarded his appearance as 'scary'. It crossed her mind to hope that Mr Balubaid was not going to send this man over to extract an apology for what had happened earlier. She feared that if that happened, there might be a confrontation. She was sufficiently concerned to go to speak to the bar manager, Mr Rosenblatt, who was in his office, adjacent to the bar itself. Ms Alblas was also in the office. Ms Kotze explained her concerns to Mr Rosenblatt and Ms Alblas. She estimated that she was in the office for only a few minutes. She was just returning to the bar with Ms Alblas when she heard the sounds of breaking glass and other disruption.
Meanwhile, in the bar, events had taken a very nasty turn. The two appellants decided to leave and Mr Harrison went to collect their coats. Mr Everett was beckoned to Mr Balubaid's table at which he and Croasdaile were standing. Mr Balubaid asked for an apology at which Mr Everett told him to 'piss off'. Mr Everett then tried to walk away but was punched in the face by Croasdaile. There was a scuffle as Mr Everett tried to defend himself. Croasdaile then produced a knife and stabbed Mr Everett in the neck. He then pursued Mr Harrison, who had run down the stairs leading to the toilets and fire exit, and attacked him. Mr Everett followed down the stairs and Croasdaile stabbed him three times in the abdomen. Mr Harrison escaped through a fire exit; he had been stabbed a total of five times. Both men had received serious injuries from which, it appears, they have made satisfactory recoveries.
The action for damages
The action for damages was begun on 4 November 2005. It named as defendants the respondent (Comojo), Mr Balubaid and Darkstorm Trading Ltd, the security company. In due course, Darkstorm obtained summary judgment and were dismissed from the claim. Judgment in default of defence was obtained against Mr Balubaid but he has not been seen or heard of since these events and any judgment is unlikely to be satisfied. Accordingly, the action went on against Comojo alone.
In the action, the issue arose as to whether Comojo owed any duty of care towards the appellants in respect of the actions of another guest. Comojo contended that it owed no such duty. The appellants contended that Comojo owed its guests a duty at common law to take reasonable steps to protect them from dangers from third parties which it foresaw or ought reasonably to have foreseen. The judge accepted the claimants' submissions on this point for reasons which I will examine in more detail later in this judgment.
Although the particulars of claim ranged widely, by the end of the hearing, only two allegations of negligence or breach of duty were being pursued. These were, first, that Comojo had been negligent in failing to instruct the doormen to search guests. The judge rejected that allegation and there is no appeal from that holding. I say no more about it. The second...
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