London and County (A. & D.) Ltd v Wilfred Sportsman Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 29 April 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0429-6 |
| Docket Number | 1965 L No. 3709 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 1970 |
[1970] EWCA Civ J0429-6
In The Court of Appeal
On Appeal From the High Court of Justice
Chancery Division
Revised
Lord Justice Russell and
Lord Justice Megaw
MR J.A.R. FINLAY (Instructed by Sharps, Pritchard& Co.,) appeared on behalf of the Defendants (Appellants).
MR. PETER OLIVER. Q.C. and MR. V.G WELLINGS (instructed by Ward, Bowie & Co., London, agents for Lee & Priestley, Bradford) appeared on behalf of the Third Party (Appellants).
MR. GEORGE AVGHERINOS (instructed by Brian H. Taub & Co) appeared on behalf of the Plaintiffs (Respondents).
We have been listening to argument on what really is an appendage to a ease which we have already decided in reserved judgments, on a point which was at no time ventilated in argument before us: And which apparently was only touched on after Mr. Justice Buckley's judgment in general discussion then. Mr. Avgherinos now says, and I note that there is no trace of it in any Respondents' Notice, that we have decided that the third party or the Defendants were trespassers from the time they entered the premises on the 15th May, 1965 until the date on the 31st August 1965, when, as we held, Miah's lease, over which the Plaintiffs had a charge by way of mortgage, was terminated by forfeiture, in particular he says, "Well, the situation was that I started proceedings against Miah" — I do not know the exact date, but some time before 2nd March, 1965 — "for possession under my mortgage and on 2nd March I obtained judgment against Miah for possession, to be delivered up within 28 days after service of the order upon Miah". I pause to remark that there is no evidence that the order was ever served upon Miah at all. "But", says Mr. Avgherinos, "I was entitled to possession as against Miah" (and it is common ground that in relation to somebody the Defendants were trespassers on the property in the period I have mentioned from 15th May, 1965 to 31st August 1965) "and having in that period had a right to possession as against Miah, I can now sue for mesne profits or damages for trespass".
As Mr. Finlay and Mr. Oliver have pointed out, this is really a point which is not open to the Respondents, who put in no Respondents' notice, although the...
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