Farrar v Leongreen Ltd, Court of Appeal - Civil Division, December 21, 2017, [2017] EWCA Civ 2211

Resolution Date:December 21, 2017
Issuing Organization:Civil Division
Actores:Farrar v Leongreen Ltd

Case No: B2/2016/1690

Neutral Citation Number: [2017] EWCA Civ 2211





Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017





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Stuart Armstrong (instructed by Candey Ltd) for the Appellant

Andy Creer (instructed by Swan Turton Solicitors) for the Respondent

Hearing date: 14 December 2017

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Lord Justice Sales:

  1. This is an appeal in respect of the judgment of HHJ Walden-Smith in the Central London County Court in relation to her determination of a dispute regarding a flat in Artillery Mansions in Victoria Street, London SW1. The proceedings which culminated in that judgment were commenced by the respondent and a company associated with it (``Galleondeal'') on 29 August 2014. In them, the respondent and Galleondeal claimed, amongst other things, mesne profits against the appellant for periods of occupation of the flat by him when the respondent and Galleondeal maintained that he was a trespasser. The judge awarded mesne profits, among other relief, in favour of Galleondeal (which had been the original owner of the flat) in relation to a period of occupation by the appellant as a trespasser and also in favour of the respondent in relation to a second period of occupation by the appellant, after the ownership of the flat (in the form of a long leasehold) was conveyed by Galleondeal to the respondent on 21 November 2012.

  2. Irwin LJ granted the appellant permission to appeal, limited to one ground of appeal. The material part of the judgment for the purposes of this appeal concerns the award of mesne profits to be paid by the appellant to the respondent in respect of the occupation of the flat by the appellant as a trespasser between 21 November 2012 and 26 March 2014.

  3. The appellant contends that it was not open to the judge to award mesne profits in favour of the respondent, because on 7 December 2012 the respondent had commenced an earlier action against the appellant seeking an order for possession of the flat (``the first action''). In the first action, the respondent simply sought a summary order for possession. It did not include a claim for mesne profits as well in relation to the period of unlawful occupation of the flat by the appellant, although as a matter of procedure it could have chosen to do so. The first action resulted in a hearing before HHJ Dight on 24 February 2014 at which he made the possession order as claimed by the respondent.

  4. The appellant submits that by virtue of principles relating to the doctrine of res judicata the respondent thereby lost the right to claim mesne profits in the present action which culminated in the award by HHJ Walden-Smith. The judge was therefore wrong to grant mesne profits in favour of the respondent.

    Factual background

  5. The factual background to the case is somewhat complicated, but a brief summary suffices for present purposes. The appellant occupied the flat for some time pursuant to an arrangement with Galleondeal and the owners of Galleondeal. As the courts below found, that arrangement was regularised by the grant of a year's lease by Galleondeal to the appellant commencing on 1 March 2008. The appellant maintained that this arrangement was a sham, concealing the fact that he was permitted to use the flat by Galleondeal without payment. His case in that regard was rejected by HHJ Dight at trial and HHJ Walden-Smith proceeded on the basis that the lease was genuine.

  6. When the lease expired, the appellant remained in occupation of the flat as a trespasser. On 21 November 2012, Galleondeal granted the respondent a long lease of the flat. The appellant remained in occupation as a trespasser.

  7. On 7 December 2012 the respondent commenced the first action against the appellant, claiming a summary order for possession of the flat. Galleondeal was not a party to that action. The respondent did not include a claim for mesne profits in its claim in that action. In correspondence, the respondent and Galleondeal intimated that they proposed claiming rent and mesne profits at a later stage.

  8. At the hearing on 24 February 2014, HHJ Dight determined the...

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