On 27 February 2025, the Court of Appeal refused permission to appeal in the case of Scalora v Clarion Housing Association Limited [2024] EWHC 1414, a nine day trial which generated wide media interest:
The Appellant sought to appeal the dismissal of his £1.1m claim for damages for unlawful eviction on multiple grounds, each designed to challenge the judge’s conclusion that he had expressly or impliedly terminated his tenancy. The judgment below can be found [here]. The grounds of appeal included a novel argument that the judge had erroneously elevated lay witness evidence to the status of expert evidence, and asserted that the criteria in Griffiths v TUI (UK) Ltd [2023] UKSC 48 had not been met where a joint cyber expert had not been cross-examined on his report. The Appellant also argued that the judge had failed to correctly apply Artworld Financial Corp v Safaryan [2009] EWCA Civ 303 when deciding, in the alternative, that the tenancy had been surrendered by operation of law.
The Court of Appeal determined that none of the grounds of appeal enjoyed a real prospect of success. In essence, the Appellant was seeking to go behind the judge’s findings of fact. The authorities stress the high hurdle which an appellant must surmount to interfere with findings of fact made by a trial judge who had the benefit of considering the whole tapestry of evidence. An appellate court should not interfere with the trial judge’s conclusions on primary facts unless satisfied that they were plainly wrong in that: (a) the challenged findings were unsupported by the evidence; or (b) the judge reached a decision that no reasonable judge could have reached. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them (see Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817 per Lewisham LJ at [29], reiterating what he said in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114]).
None of the matters raised satisfied the high threshold for challenging such findings. The lay evidence had not been treated as expert evidence and there was no need for the expert to be cross-examined when he was unable to opine on the system in question. Ultimately, the judge was entitled to reach the findings and come to the conclusions he did based on the totality of the evidence before him. Crucially, the judge was entitled to conclude that the Appellant has been “thoroughly dishonest” when he denied sending the emails that showed that he had terminated his tenancy. The Appellant therefore knew all along that he had sent the emails in dispute and was wrong to accuse the Respondent of forgery.
It followed that his tenancy had ended and there had been no unlawful eviction. As well as dismissing the claim, the court below marked its disapproval for the Appellant’s conduct with an indemnity costs order under CPR r. 44.3(b). The conduct of the Appellant was found to take the case far outside the norm. As Waller LJ emphasised in Esure Services Ltd v Quarcoo [2009] EWCA Civ 595 at [25]:
“To bring a dishonest claim and to support a claim by dishonesty cannot be said to be the ordinary and reasonable conduct of proceedings.”
Michelle Caney acted for the successful Respondent in the High Court and the Court of Appeal.
Michelle was instructed in the Court of Appeal by Alexandra Loxton and Lindsay Felstead of Clarke Willmott.
