Safeera Akram v Academy Doors and Windows Ltd

Hearing date: 30 June 2023

A. Introduction

This is a renewed application for permission to appeal the judgment of His Honour Judge Hellman QC handed down following the trial between 17 and 21 May 2021 and 1 July 2021 and the cost orders which were made thereafter. The claim relates to a contractual dispute over construction works to a residential property in Academy Road, Isleworth (‘the Property’). The Appellants/Defendants are Academy Doors & Windows Ltd (D1) and Chandler Shekhar Lal (D2). D2 owns and controls D1. The homeowner, Ms Sefeera Akram, is the Respondent/Claimant.

Judge Hellman QC awarded the Claimant £9,778.79 against D1 and £34,711.62 against D2. He dismissed the counterclaim against the Claimant. He also awarded her further sums under CPR Part 36 of £1,051 against D1 and £4,032 against D2. The Defendants were ordered to pay the costs of the proceedings, to be assessed on the standard basis until 10.11.20 and on the indemnity basis thereafter, plus interest on the costs. The Defendants were also ordered to make a payment on account of costs in the sum of £70,000. Judge Hellman QC's order was dated 9.9.21. It was subsequently amended twice, the final version being dated 29.9.21.

A stay of execution in relation to the judgment was initially granted by Knowles J on 15 December 2021, but was subsequently lifted nearly a year later by Ritchie J, on 2 December 2022. On 12 May 2023, permission to appeal the judgment of HHJ Hellman QC was refused by the Honourable Sir Stephen Stewart on the papers. An application to re-impose the stay was then refused by Bourne J on 24 May 2023. The procedural history of this appeal through 2022 to May 2023 is dealt with in the judgment of Bourne J, which I will not repeat.

The works contracted for comprised (1) the construction of a kitchen extension, (2) various works to the ground floor (3) the refurbishment of an upstairs bathroom (4) the supply and installation of replacement triple glazed windows for all the windows in the Property.

The Claimant contended that she contracted with D2 to carry out the main building works, i.e. the kitchen extension, ground floor works and bathroom refurbishment, for a contract price of £40,000. She says she contracted with D1 to manufacture, supply and fit six triple glazed windows, a skylight to the kitchen roof and a set of bifold doors for a contract price of £9,820.

By contrast, the Defendants contended that the Claimant contracted for all these works with D1 for a contract price of £47,000. The original price was £40,000 and that was later increased by £7,000 after the Claimant requested the additional supply of bifold doors and a skylight window. The identity of the contractor was relevant because D1 has ceased to trade and any award of damages made against it is likely to prove irrecoverable.

As to the substance of the contract, the Claimant contended that apart from the refurbishment of the bathroom, the contract price for all these works included both labour and materials. D2 argued that the cost of materials for the kitchen extension was not included. The Claimant also said that VAT was not payable on any of the work. D2 says that the VAT at 20% was payable on all the work. It was common ground that the work was defective and incomplete. At the date of trial, some remedial work had already been undertaken and other remediable work remained to be carried out. The Claimant contended that D2 was liable for the defects. The Defendants contended that the Claimant was responsible because she permitted her friend, Mr Anil Popat, to act as de facto project manager, a task for which he lacked the necessary experience, and failed to consult an architect or engineer when this was required.

The Defendants counterclaimed for breach of contract. They contended that the relevant defendant, whether D1 or D2, was entitled to treat the contract as at an end because the Claimant refused to pay for it. They claimed the outstanding monies said to be due under the contract in the sum of £26,145.32.

As summarised by Judge Hellman QC at paragraph 12 of his judgment, the issues for the Court below to resolve were the identity of the contracting parties, the material terms of the contract, the causation of any damage, whether there was a repudiatory breach of contract, and the amount of damages.

B. The Judgment Below

The Judge commenced his analysis by determining that it was, in circumstances where at all material times the Claimant dealt directly with D2, for D2 to prove that he was acting on behalf of D1. This starting point is not the subject of appeal. The Judge found, for reasons that will be explored in the context of this appeal, that D2 had failed to prove that when he agreed the contract for building works he was acting for D1; and, moreover, that he was satisfied that D1 was acting on his own behalf. The Judge therefore accepted the Claimant's analysis of the identity of the contracting parties and concluded that the building works contract was with D2 and the window supply contract was with D1.

In relation to VAT, the Judge concluded that as D2 was not VAT registered, no VAT was payable with respect to the contract for the building works. In relation to the issue over labour and materials, he concluded that the building works contract was, apart from the upstairs bathroom, for both labour and materials. In terms of the cause of defective work, the Judge rejected D2's case that they were caused by the Claimant and/or Mr Popat, and concluded that they were caused by D2's own shortcomings. He concluded that D2 failed to establish that there were any payments outstanding when he stopped work on the project and determined that, even if there had been, that would not necessarily have been a repudiatory breach. As D2 had failed to establish a repudiatory breach by the Claimant, the Judge concluded that he was not entitled to terminate either contract.

The Claimant's claim for breach of contract against DI and D2 was therefore allowed, and the counterclaim dismissed. The sums awarded have been set out in paragraph [2] above.

C. The Grounds of Appeal

There are 18 grounds of appeal. In her helpful written skeleton argument and oral submissions, Ms Bailey for the Appellants, contended that ‘adopting a broad approach’, there were in fact 7 issues before the Court, as follows:

i. Who were the contracting parties? (see Section E below)

ii. Was VAT payable on the building services contract or on the element of the contract relating to building services? (see Section E below)

iii. Given the number of builders who had visited the site since the parties parted company, can it be said that the Appellants or each of them are liable for the findings of the experts? (see Section G below)

iv. Was it reasonable for the court to make findings about the work in question given that the Respondent had taken years to appoint experts to survey the works after several builders had attended the Property and carried out their own works? (see Section G below)

v. Were the figures, as calculated by the Court, in keeping with realistic costings? (see Section F below)

vi. Was it necessary to remove the entire skylight given that the limited nature of the complaint made with regards thereto? (See Section G below)

vii. Was the costs order disproportionate to the claim? (see Section H below)

It is not necessarily easy to overlay each of these broad issues to the underlying grounds of appeal, which themselves are in certain respects unfocussed, repetitive and generalised.

Nevertheless, as fairly agreed by Ms Bailey in oral submissions, it seems appropriate to consider the appeal by reference to the way it is advanced in Ms Bailey's skeleton argument and oral submissions rather than to consider in turn each of the 18 grounds of appeal which, to the extent they are not the subject of submission within the skeleton argument, have not been pursued.

D. The Test

In accordance with CPR 52.6(1) permission to appeal may be given only where (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard. The present appeal is brought under 52.6(1)(a). The ‘ real prospect of success’ test is the same as that applied when the courts consider summary judgment. The court has to consider whether there is a realistic, rather than a fanciful, prospect of success.

Where the basis of a permission to appeal application is a challenge to a trial judge's findings of fact, there must be a real prospect of success that the appeal court will be satisfied that those findings were either unsupported by evidence before the judge or that the decision subject to challenge was one that no reasonable judge could have reached (see The Mayor and Burgesses of the Haringey LBC v Ahmed & Ahmed [2017] EWCA Civ 1861, CA at [29]–[31].

This is a difficult test to satisfy. See, for example, Cook v. Thomas [2010] E. W. C. A. Civ. 227:

“An appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility was in issue.”

See also Re: B [2013] 1 WLR 1911:

“ [The appellate court] can and sometimes does test the judge's factual findings against the contemporaneous documentation and inherent probabilities. But where findings depend on the...