Shahan Salekipour and Another v Jashan Kaur Parmar (in her own right and as executrix of Mohinder Singh Parmar, deceased)
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lord Justice Flaux,Lord Justice Moylan |
| Judgment Date | 15 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2141 |
| Docket Number | Case No: A2/2016/2848 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 December 2017 |
[2017] EWCA Civ 2141
THE MASTER OF THE ROLLS
Lord Justice Flaux
and
Lord Justice Moylan
Case No: A2/2016/2848
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Garnham J
Royal Courts of Justice
Strand, London, WC2A 2LL
Adrian Davies (instructed by Messrs Lancasters) for the Appellants
Paul Letman (instructed by Rice-Jones and Smiths) for the Respondent
Hearing date: 5 December 2017
Judgment Approved
The principal issue on this appeal is whether the County Court has jurisdiction to set aside a final order made in other County Court proceedings and to order a new trial in those proceedings on the ground that an important witness gave perjured evidence under pressure from the successful party.
The claim in the present proceedings to "rescind the judgment" in Salekipour v Parmar Claim No. OCL 10544 in the Central London County Court ("the original proceedings") for that reason and to order a new trial was struck out by District Judge Lightman as an abuse of process. An application to set aside his order was dismissed by Her Honour Judge Faber for the reason that the County Court has no jurisdiction to set aside one of its own judgments "on the ground that it was obtained by subornation of perjury". By his order dated 23 June 2016 Mr Justice Garnham dismissed the appeal from her order. This is the appeal from his order.
The relevant provisions of the County Court Act 1984 ("the 1984 Act") are sections 23(g), 38 and 70, which are as follows:
" 23. Equity jurisdiction.
The county court shall have all the jurisdiction of the High Court to hear and determine—
…
(g) proceedings for relief against fraud or mistake, where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the county court limit.
…"
" 38. Remedies available in county courts.
(1) Subject to what follows, in any proceedings in the county court the court may make any order which could be made by the High Court if the proceedings were in the High Court.
…"
" 70. Finality of judgments and orders
Every judgment and order of the county court shall, except as provided by this or any other Act or as may be prescribed, be final and conclusive between the parties."
The original proceedings
I gratefully take the majority of the following summary of the original proceedings from the judgment of Garnham J.
The appellants on this appeal, Mrs Shahan Salekipour and her husband Mr Amir Saleem, were the tenants of a ground floor lock-up shop and rear garage at 500 Greenford Road, Greenford, Middlesex ("the shop"). The landlords were Mrs Jashan Kaur Parmar and her late husband Mr Mohinder Singh Parmar. Mrs Parmar is the defendant to the present proceedings and the respondent to this appeal. She is sued both in her personal capacity and as the executrix of Mr Parmar.
Mrs Salekipour commenced the original proceedings in the Central London County Court against Mr and Mrs Parmar 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 expressed as being for misrepresentation, although it was subsequently put, in the alternative, as a claim to recover money paid under economic duress.
Second, she claimed £21,000 in respect of rent which she said she overpaid during her occupation of the shop.
Third, she claimed under section 1 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, she claimed damages under section 3 of the Protection from 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 shop, dumping and burning rubbish behind the shop, 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 on at the shop to be cut, and causing the breakage of the plate glass window of the shop. 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. Mrs Parmar counterclaimed three quarters' rent in the sum of £15,000, unpaid insurance premiums in the sums of £907 and £994.82, and the cost of floor plans and fees in the sums of £141 and £96.13, together with interest.
The original proceedings were tried by Her Honour Judge Marshall QC. She heard oral evidence over five days. She handed down her detailed and extensive judgment (running to 175 paragraphs) on 10 May 2012. She rejected each of Mrs Salekipour's claims and allowed each of Mrs Parmar's counterclaims.
The following paragraphs of Judge Marshall's judgment are particularly pertinent to this appeal.
"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 sides 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 counterclaim is a mixture of fact and law.
19. Credibility is thus vital in this case and this has had the result that each side has sought to introduce evidence going to credit …"
"33. As to 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 claimants, 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 satisfy 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."
At paragraph [136] Judge Marshall turned to 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 continued 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, Judge Marshall said at paragraph [160]:
"Having reviewed all the evidence, and taking into account not only my caution about the reliability of the claimants' 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 bête noire) I am simply not satisfied that this threat was ever made."
In respect of the cutting of telephone lines and smashed windows, Judge Marshall concluded (at paragraph [163]):
"In short, the claimants simply fail to prove to my satisfaction that in so far as these incidents of vandalism occurred, they were either committed or procured by the defendant at all."
On the counterclaim, Judge Marshall said, among other things, as follows.
"169. As regards the claim for unpaid rent, Mrs Salekipour's resistance to this rests on the contention that Mrs Parmar's harassing conduct amounted to a repudiation of the lease, justifying her leaving the premises in February 2010 and refusing to pay any further rent. I have found that there was no such harassing conduct. It follows that the lease, with its liability for rent, continued until such point as Mrs Parmar, in...
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