Salekipour and Another v Parmar and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 23 June 2016 |
| Neutral Citation | [2016] EWHC 1466 (QB) |
| Docket Number | Case No: QB/2015/0422 |
| Court | Queen's Bench Division |
| Date | 23 June 2016 |
[2016] EWHC 1466 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: QB/2015/0422
Mr Adrian Davies (instructed by Lancasters) for the Claimant
Mr Paul Letman (instructed by Rice-Jones & Smiths) for the Defendant
Hearing dates: 8 th June 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This appeal raises a novel point as to the jurisdiction of the county court to rescind a judgment in earlier county court proceedings on the grounds of perjury and subornation of a witness.
On 10 May 2012, Her Honour Judge Marshall QC, sitting in the Central London County Court, gave judgment in proceedings brought by Mrs Shahan Salekipour against Mr and Mrs Parmar. She dismissed the claim and allowed the Defendant's counterclaim in the sum of a little more than £17,000, together with interest.
On 24 September 2014, Mrs Salekipour and her husband brought new proceedings in the county court against Mr and Mrs Parmar seeking rescission of the judgment in the original claim and an order for a new trial. On 16 January 2015, the Defendants issued an application seeking to strike out that claim under CPR Rule 3.4 as disclosing no reasonable grounds for bringing the claim, or as an abuse of process on the ground that the claim should have been advanced by way of an appeal rather than a new claim.
The Defendants' application was made without notice to the Claimants. In the absence of a response or attendance by the Claimant, District Judge Lightman struck out the claim as an abuse of process but granted any party affected by the order seven days to apply to set aside vary or revoke his order. On 22 January 2015, the Claimants made an application for an order revoking DJ Lightman's order, which application came on for hearing before Her Honour Judge Faber in the Central London County Court on 19 August 2015.
This is the Claimant's appeal against HHJ Faber's decision that the county court had no jurisdiction to grant the relief sought and in consequence it was appropriate to uphold DJ Lightman's order.
Sadly, since the commencement of these proceedings, Mr Parmar has died. CPR 19.8(2) provides that where a defendant has died and a grant of probate or administration has not been made, which is the case here, the claim must be brought against " the estate of" the deceased and the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim. Here, however, both parties agree that those steps are unnecessary. It is pointed out that Mrs Parmar is the Second Respondent, it is likely that Mrs Parmar will be Mr Parmar's executrix and Mrs Parmar was the principal protagonist in the original proceedings against the Appellants. Given that neither party takes any point on the absence of a representation order, I am content to determine this appeal on the issues raised.
The History
The Original Proceedings
The nature and history of the original claim is set out in the detailed and careful judgment of HHJ Marshall.
In short summary, the Claimant in those proceedings, Mrs Salekipour and Mr Amar Saleem were the tenants of a ground floor lock up shop and rear garage at 500 Greenford Road, Greenford, Middlesex. The landlords were Mr Mohinder Singh Parmar and Mrs Jashan Kaur Parmar. Mrs Salekipour commenced proceedings against the Defendants on 29 September 2010. She claimed first, the recovery of £25,000 which she said her husband paid on her behalf to Mrs Parmar. The claim was pleaded as being for misrepresentation, although it was subsequently put, in the alternative, as a claim to recover money paid under economic duress.
Second, Mrs Salekipour claimed £21,000 in respect of rent which she said she overpaid during her occupation of the premises. Third, she claimed under s1 of the Landlord and Tenant Act 1988 on the basis that Mrs Parmar unreasonably delayed or withheld her consent to a proposed assignment of the lease in mid-2008. The claim was for the loss of a premium of £38,000 which was to have been paid.
Fourth, the Claimant claimed damages under s3 of the Prevention of Harassment Act 1997 on the basis of a series of acts which she says were carried out or procured by Mrs Parmar. Those allegations relate to the removal of a sunblind, the erection of scaffolding outside the premises, dumping and burning rubbish behind the premises, an allegedly false accusation that Mrs Salekipour was dumping rubbish and repeatedly disturbing Mrs Parmar to complain about the same, threatening on one occasion to have Mrs Salekipour raped, causing the telephone wires to the hairdressing business she carried out at the premises to be cut, and causing the breakage of the plate glass window of the premises. That list of complaints was expanded during the course of the evidence. In respect of this harassment Mrs Salekipour claimed damages for distress and anxiety.
The defence to the claim was broadly one of complete denial. By her counterclaim, Mrs Parmar claimed three quarters' rent in the sum of £15,000, for unpaid insurance premiums in the sums of £907 and £994.82 and for the cost of floor plans and fees in the sums of £141 and £96.13, together with interest.
HHJ Marshall rejected each of the Claimant's claims and allowed each of the Defendants' counterclaims. For a proper appreciation of her analysis it is necessary to read the whole of the judgment. But the following paragraphs are particularly pertinent for my purposes:
" 17. … It will be seen that much depends on which of two conflicting accounts between the two sides I prefer. Indeed, Mr Richard Power, appearing for Mrs Salekipour… suggested the evidence on the opposite side of the dispute differs so profoundly that the only conclusion is that there is 'collective lying' on one side or the other.
18. I accept that this applies in particular to the first claim (the '£25,000' dispute), the second claim (the 'overpaid rent' dispute), and the fourth claim (the 'harassment' dispute), the third claim (the 'unreasonable withholding of consent' dispute) depends mainly on an analysis of correspondence passing between the solicitors who are acting. The counter claim is a mixture of facts and law.
19. Credibility is thus vital in this case and this has had the result of each side has sought to introduce evidence going to credit…
33. As the Defendant's witnesses, Mr Fiszer was a bluff Polish shopkeeper who gave evidence in good but careful English. He was the most independent of the supporting witnesses and I am quite satisfied that he was sincerely telling me the truth as he saw it. I feel able to rely on his evidence…
40. Mrs Parmar presented a marked contrast to the emotional Claimant, but I will still have to examine how far I can safely accept her evidence at face value. In this case, much of what I have to decide rests on whose account of the facts I believe or prefer. In deciding this, I shall have regard to the degree of support for either contention which can be derived from documents, other clear facts, or just from plain common sense…
46. The first issue then is whether or not the Claimants satisfied me… that any payment such as they allege did actually change hands. This is an issue of fact. In effect, I must decide whether I believe Mrs Parmar or Mr Salim. This also means that one of them is not telling me the truth, as there is hardly room for a finding of honest innocent mistake about such a stark and simple point…
53. Taking into account all the evidence therefore I do not believe Mrs Parmar's assertion that she let the Claimants into possession only at Easter 2006, and I do not believe her associated assertion that she took no money from them before rent became payable under the lease. Given both my assessment of her in evidence, and the circumstances disclosed in the documents, I find this implausible in the extreme and entirely out of character. Whilst I accept Mr Fiszer's evidence that she did let him into possession of the shop rent free for a period before he took over the unit in 2011, I note that this was after Mrs Parmar became aware of the allegations being made against her in these proceedings." (emphasis added)
At paragraph 136 HHJ Marshall turned to deal with the allegations of harassment. As to the dumping of rubbish she said at paragraph 153, " I prefer Mrs Parmar's evidence on this aspect and I find that Mrs Salekipour is simply in unjustified denial of this matter…". She went on at paragraph 154, " It follows that I am satisfied that these complaints by Mrs Parmar were, in all likelihood, not 'false' at all, but were justified".
As to the allegation of a threat to have Mrs Salekipour raped, HHJ Marshall said at paragraph 160, " Having reviewed all the evidence, and taking into account not only my caution about the reliability of the Claimant's evidence on anything but basic matters, and also Mr Letman's submission as to Mrs Salekipour's tendency to make highly incredible accusations and assertions about Mrs Parmar (who has obviously become her bete noire) I am simply not satisfied that this threat was ever made". In respect of the cutting of telephone lines and smashed windows, the Judge concluded " In short, the Claimant simply failed to prove to my satisfaction that insofar as these incidents of vandalism occurred, they were either committed or procured by the Defendant at all".
On the counter claim, the Judge found at paragraph 169:
" As regards the claim for unpaid rent, Mrs Salekipour's resistance to this...
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