NO: B1/2001/1035

Neutral Citation Number: [2001] EWCA Civ 1180
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)
                                   Royal Courts of Justice  
                                  Strand    
                                  London WC2
 
                             Tuesday, 10th July 2001
B e f o r e :

LORD JUSTICE MUMMERY

and

MR JUSTICE WILSON

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ROGER JOHN BURRELL

‑ v ‑

ZAHRA NORRIS (also known as Zabra Kojzadeh)

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
(Official Shorthand Writers to the Court)
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MR JOHN BRYANT (instructed by Edell Jones & Lessers, 1 Ron Leighton Way, East Ham, London E6 1JA) appeared on behalf of the Applicant

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J U D G M E N T
1.	LORD JUSTICE MUMMERY: There are three applications before the Court. They are made on behalf of Mr Roger John Norris who is represented today by Mr Bryant of counsel. The first application is for permission to appeal against an order made by His Honour Judge Cowell in the Central London County Court on 24th April 2001; the second is for an extension of time in which to appeal, the application having been made one day late; and the third application is for a stay of execution of an order for, sale which was included in the judge's order.
2.	The background to this dispute I shall briefly outline in order to explain the grounds on which I would grant permission. The first fact of note is that the dispute is concerned with a property at flat 14A, King Henry's Road, Primrose Hill, London NW3. It was owned by the local authority. Miss Norris was a tenant. The right to buy provisions of the Housing Act came into force and Miss Norris acquired the right to purchase the leasehold interest in the property. She exercised that right and the property was transferred into her name on 23rd January 1985.
3.	It is common ground that the purchase price for the property was paid not by her but by the proposed respondent to this appeal, Mr Roger Burrell. Mr Burrell had been in a relationship with Miss Norris between 1993 and 1997; thus spanning the period during the which the right to buy provisions were invoked and exercised. There was a child of that relationship, William, who was born on 6th October 1994.
4.	Mr Burrell's case is that the purchase price of the property, including associated costs, was £53,395.62 and of that he paid £53,126.33. He says that their common intention was that they should live in this property and hold it in equal shares. This was disputed by Miss Norris, who claims that she is solely entitled to the property. Her primary case on the evidence which she has so far submitted was she had a sister, Minara, who went through a form of marriage with Mr Roger Burrell on 23rd August 1993, and that that was followed in July 1994 by a divorce, and that the arrangement between her, her sister, and Mr Burrell was that Miss Norris would transfer to her sister a flat, which she owned in Tehran; that this represented a settlement which Mr Burrell was making on Miss Norris' sister as part of the divorce, and that, in consideration of Miss Norris making this transfer, Mr Burrell would in return provide the money for the purchase of the flat. So she says there was no intention on the part of Mr Burrell to acquire an interest in the property.
5.	The relationship ended in 1997. These proceedings were started by Mr Burrell on 22nd August 2000. In the proceedings he sought these orders: (a) A declaration that the property 14a King Henry's Road, Primrose Hill, London NW3 belongs to the claimant and the defendant in equal shares; (b) An order that the said property be sold forthwith and the equity after costs of sale divided equally between the claimant and the defendant; (c) Such consequential directions as may be necessary; and (d) an order for costs.
6.	The case was instituted in the Chancery Division, but was transferred from that division to the Central London County Court by an order made by Master Bowman on 23rd October 2000. I should also mention at this stage that these were not the only proceedings between these parties. There were Children Act proceedings in which an order had been made by Mr Recorder Elvidge. It was a shared residence order. That order was continued by Miss Eleanor Platt QC at a hearing on 23rd August 2000, the day after these proceedings in the Chancery Division were commenced. A further order was made in them after the order which it sought to appeal made by his His Honour Judge Cowell. That order was made by the President on 8th May 2001.
7.	When the matter came before His Honour Judge Cowell on 24th April, Miss Norris was represented by counsel, but only for the purposes of seeking an adjournment, which the judge refused. Having been refused, Miss Norris and her counsel left the court without asking for permission to appeal. The reason they left Court was that neither of them was in a position to conduct a hearing.
8.	The background to the adjournment application was that up to Friday, 20th of April, Miss Norris had been publicly funded. She had a conference on that day with new counsel instructed in place of her previous counsel who had become unavailable. He pointed out there was no evidence available from the sister in Tehran about the arrangement for the transfer of the Tehran flat to her. Miss Norris blamed her solicitors. She was told that the funding would be revoked. She dismissed the solicitors and counsel. The solicitors refused to release the papers to her and it was only on the day of the hearing the following week, 24th April, that she instructed new solicitors and counsel to obtain an adjournment.
9.	She complains that the effect of the refusal of the adjournment was that she was denied an opportunity to argue her case. She needed representation for that to be done and needed time to prepare, in particular time to obtain the evidence, which had still not been produced from her sister in Tehran about the transfer of her flat there. She says that lack of evidence in time was the fault of her solicitors. She says the refusal was unjust. To grant the adjournment would not have prejudiced Mr Burrell. Another point made by Mr Bryant today, which did not appear in the application for permission, concerns the relationship between these proceedings and the proceedings in the Family Division of which the judge was notified. Mr Bryant submits that, in the circumstances already outlined it was not right to refuse the adjournment. It should have been granted with a view to the Family Division proceedings and what I may call the property proceedings being dealt with by the same court at the same time. Therefore, it is submitted that there is a real prospect of success on the appeal against the order of the judge refusing an adjournment.
10.	It also appears, as pointed out by Wilson J in the course of argument, that no application has been made to date for a settlement of property on behalf of the child, William. If such an application were to be made, that would provide yet a further reason for these proceedings being disposed of in the Family Division, along with the existing residence proceedings.
11.	There are three further grounds on which permission to appeal is sought, in addition to the refusal of the adjournment. The first is that it is submitted that the judge was wrong to make an order in which he declared that the property was beneficially owned in equal shares. The judge made an order on the footing that Mr Burrell is and has at all material times since the purchase on 23rd January 1995 been beneficially entitled to one‑half of the property or in the proceeds of sale thereof, and it was on that footing that he proceeded to order a sale and a distribution of the net proceeds subject to certain retentions which I shall mention in a moment.
12.	Miss Norris submits she has credible evidence in support of her claim that the property is hers entirely, and that it was wrong of the judge simply to accept the evidence of Mr Burrell. There is a further point, which has emerged during the course of Mr Bryant's submissions this morning, which does not appear to have been considered by the judge, and that is if, contrary to her submissions, Miss Norris is not the sole owner, it is not clear that Mr Burrell is necessarily entitled to a 50 percent share. It appears from the papers that Miss Norris was the tenant of the flat for a number of years. There are a number of valuations of the property in the papers. One is £90,000, which was then subject to a discount under the Housing Act provisions, which led to the purchase price at over £50,000. In another part of the papers there is reference to a valuation of the property at about that time of about £150,000, and there is yet a further reference to a more recent valuation of the property as being in the region of £500,000. It may be that these valuations are relevant to the determination of what was the share of Mr Burrell in this property, if he had a share. These were matters which do not appear to have been considered by the judge. I would therefore grant permission to appeal on the question of in what shares these parties are entitled to in this property.
13.	The second point concerns the order for sale. The judge ordered that the property be sold before November 2001, giving directions that Mr Burrell's solicitors would have conduct of it and also giving directions for the appointment of a co‑trustee of Miss Norris for the purpose of selling the property. Although the submissions to the judge referred to the provisions of the 1996 Trusts of Land and Appointment of Trustees Act, section 15, which set out the considerations which the court could take into account in deciding whether or not to make an order for sale, it does not appear from the note of the judge's judgment that he did take account of items. I should mention that no full transcript was available. The factors which Miss Norris wishes to press in her appeal is that this property was a property of which she had been tenant; and it provided a home for her and for Mr Burrell and for their son, William, while their relationship was subsisting. It appears from her evidence that this is the main residence of her son, and for all we know the orders made for joint residence in the Children Act proceedings were made on the basis that this was William's main residence.
14.	Mr Bryant has submitted that, if this order for sale is carried out, then Miss Norris may be unable, with the funds remaining available to her on the judge's order, to re‑house herself, William, and two other children which she has by other fathers. I would grant permission on the ground, as it seems to me there is a real prospect of succeeding and persuading the court that it was not proper to order this sale and certainly not to do so in a context divorced from the proceedings in the Family Division.
15.	The third ground on which I would grant permission to appeal relates to the directions which the judge gave for the retention out of the one‑half share of Miss Norris in the proceeds. He directed there should be retained out of her half share an occupation rental at the rate of £250 a week from 1st April 1997 until sale. It appears that the judge made that order, having granted to Mr Burrell at some point during the proceedings on 24th of April, permission to amend his claim to include an occupation rent. As it will be appreciated from what I have already read out from the claim form, he did not ask for an occupation rent. Miss Norris complains that this late amendment, of which she had no prior notice was unjust. More seriously, in my view, there appears to have been no relevant evidence before the judge on which he could make his finding that the rental value was £500 a week. He simply says, according to the note of his judgment: 
“There was only one new matter I cannot refuse the claimant from making which is a claim for occupation rent from March of 1997. There is no expert evidence but I am told that £500 a week is the rental and I am inclined to think that that was right.”
16.	It was on the basis of £500 a week that he fixed the figure of £250 a week, the evidence being that Miss Norris had remained in occupation with William and possibly, which is a matter of dispute, other persons, including other children who were not hers.
17.	The important fact is that there was no expert valuation on either side about this. In my view, there is a real prospect of persuading the Court on the appeal that it was not right in the circumstances for the judge simply to act on what he was told and his inclination that what he was told was right. I would grant permission to appeal on that ground.
18.	For all those reasons I would grant permission. I would extend the time for appealing, Miss Norris having only been one day out of time. I would also grant a stay of execution of the order for sale on the basis that, if the sale were to go ahead before the appeal was heard, it would defeat one of the main purposes for which the appeal is being brought. I appreciate, however, that such orders for stays are normally made following an inter partes hearing, and I would therefore include in the order of granting the stay liberty to Mr Burrell to apply to the Court on 14 days' notice to the other side for a discharge or variation of the order for stay of execution.
19.	MR JUSTICE WILSON: I agree.
(Appeal allowed; costs of today to be costs in the appeal)