Rainer v Childs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice McFarlane,Dame Janet Smith |
| Judgment Date | 2011 |
| Neutral Citation | [2011] EWCA Civ 1267 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/1955,Case No: C1/2011/0182 |
| Year | 2011 |
| Date | 2011 |
[2011] EWCA Civ 1267
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(HIS HONOUR JUDGE MOLONEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Case No: C1/2011/0182
1. This is a renewed application by Mr Rainer against the dismissal by His Honour Judge Moloney sitting in the Norwich County Court of his claim against his landlord, Mr Childs, on the basis that he was a party to a burglary on 12 December 2007 which resulted in very substantial losses to him. The amount claimed was approximately £125,000, a not inconsiderable sum.
2. The property let was one of a number of commercial units. Mr Rainer used his unit for his business and had a lot of expensive equipment and spare parts in his unit. The burglary happened at night at a time when a tenant of another unit to which entry was also forced was sleeping on the premises. The burglary occurred without waking that tenant, a Mr Beatty. Mr Rainer has explained that there was some evidence that Mr Beatty was taking tranquilisers to help him sleep.
3. The essence of the judgment is that the judge found that Mr Childs was not at the premises on the night in question and that of course was a matter of primary fact. But the other question at the trial was why the CCTV cameras which would have partially covered the area where the burglars worked had been turned off that night. Various accounts were given but the judge did not decide which of the explanations was correct but he held that he was not satisfied that it had been shown, as it had to be by Mr Rainer, that on a balance of probabilities Mr Childs was a party to the burglary because Mr Beatty had not woken up, the burglary was of an opportunistic nature, valuable Aston Martins for instance had not been touched —
MR RAINER: Excuse me, I am sorry to interrupt you. That was another point at the hearing. Mr Childs presented several photographs of cars such as you just pointed out; there are no such cars on the premises. They were all taken from an entirely different workshop which is half a mile away —
Thank you.
MR RAINER: —and nothing at all to do with Mr Childs.
So what you are saying is the judge's reference to the Aston Martins –
MR RAINER: Yes, there were several photographs, none of which were taken inside any of the units (inaudible). I do not see the relevance of that, but…
I do. Can I just confirm? The judge says, paragraph 31:
"…I cannot help noting that there were at least two things that if Mr Childs had been an associate of the burglars he might have told them about, firstly, that building 2 was full of very valuable old Aston Martins…"
MR RAINER: No, it was not; never has been. And why would he get them to rob his own building when he –
Building 2 was his.
MR RAINER: Yes, he lived above Unit 2.
Thank you very much. I will continue. If you have any more points, could you just keep them until the end? But I will certainly hear what you have to say.
MR RAINER: All right.
4. The judge went on to say that Mr Beatty had been asleep and had not been woken up and that there was no motive for Mr Childs to act in this way.
5. There are a number of matters which give me some concern. Firstly, this is a very substantial claim. Secondly, Mr Rainer who has appeared on this application to make his submissions informs me that he made an application for an adjournment because he had been given a defence, a new defence, to the effect Mr Childs was not at the premises on the night before, only very shortly before the trial. He made an application to the judge to say he had two more witnesses he would wish to call in person to show that Mr Childs when he arrived on the scene gave the clear impression he had just been asleep at the premises. Indeed, he said something to that effect to one of the witnesses. That would have been relevant to the first of the two issues which the judge decided. The two issues, that is, presence on the premises on the night and the question of the operation of the CCTV cameras, are closely interlinked because if the judge disbelieved the evidence on one point he might take that into account on the next issue.
6. Thirdly, the judge did not refer to the evidence of Mr Bullent, an electrician, who said that, even if the CCTVs had created a problem, there could have been some alternative system installed to ensure the continuation of the electrical supply and continued running of the CCTV cameras. That may not be a complete answer but it is certainly a relevant point. It may not be a complete answer because it is said that the electrical supply was faulty but presumably one would have to investigate that to know whether it was something an electrician could not fix.
7. Fourthly, there was evidence that the equipment stolen was very heavy and would have required lorries and in any event there was gravel around the unit, so there must have been a certain amount of noise.
8. There is an additional point. The judge refers to the presence in Unit 2 "of very valuable old Aston Martins" which were not taken. Mr Rainer tells me there have never been those cars in that unit or on the premises. So the judge was in error there. How the error came about is not clear to me at this point.
9. I am satisfied that the case was put on the basis, not as pleaded in the claim form, but on the basis that Mr Childs was a party to this burglary and had some responsibility to it, the implication being that he gave access to the premises and obliged by ensuring the CCTV was not running.
10. In these circumstances I propose to adjourn this application to give Mr Rainer the opportunity to consider the matter in the light of this judgment and to obtain the transcript of the hearing. An appeal would be an expensive matter and indeed if Mr Rainer lost he would find himself liable in a considerable sum of costs. I do not consider that I should give permission unless I see a transcript of the hearing and also a copy of the defences that were served in the action so that I have a better view. I can deal with those matters on paper, but for the moment I simply intend to conclude this judgment by adjourning the matter to be dealt with on paper unless otherwise directed.
11. I will give Mr Rainer one month to produce these documents. If he needs more time he can write to the court and explain why he needs more time. It does not require an application in open court. But if he wishes to proceed, and that is something he clearly needs to think about, he must have a transcript.
Order: Application adjourned
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
HQ10X03192
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice McFarlane
and
Dame Janet Smith
Case No: A2/2011/1955
Mr Howard Palmer QC and Ms Marie Louise Kinsler (instructed by Cordner Lewis) for the appellant
Mr John Ross QC and Ms Laura Johnson (instructed by Reynolds Porter Chamberlain LLP) for the respondent
The only point of human interest in this appeal on a dry point of law is the background. James Williams was a very unhappy young man. At about 1 am on 12th December 2008 he drove his motor car at times at speeds of about 100 mph from the M32 down Newfoundland Street on the outskirts of Bristol and then deliberately swerved into a low wall which launched his car spinning into the air, bouncing off the roof of a car waiting at the junction with Bond Street South and smashing into the plate glass windows of the House of Fraser store causing over £200,000 of damage to that property. He was seriously injured and very nearly died. In time he was convicted of dangerous driving and of causing criminal damage. The Recorder who sentenced him to 21 months imprisonment said, "It is clear you suffered from serious depression at that time and the purpose of your driving was to kill yourself." Fortunately he seems to have recovered and although he did not participate in this appeal, he did attend court and took a keen interest in the proceedings.
The issue between the parties arises in this way. The House of Fraser store is one of the units within the Cabot Circus Centre owned by the claimant. The damage to the shop windows was covered by its policy of property insurance and a claim was brought against James by the property insurer by subrogation in the name of the claimant, the owner of the property. James had motor insurance but his policy did not cover damage arising out of his deliberate acts. It is common ground that this damage was caused by a deliberate act. It follows that James had no contractual right to indemnity against his motor insurer in respect of his liability to the property owners. This particular use of the vehicle was, therefore, uninsured and in the usual case this would not matter because damage to property caused by the uninsured use of a motor vehicle on a road would be paid by the motor insurer under the scheme set up by the Motor Insurers' Bureau (the MIB) for Compensation of Victims of...
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