[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Boothe-Chambers v Dymond [2001] EWCA Civ 75 (22 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/75.html Cite as: [2001] EWCA Civ 75

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNSTAPLE COUNTY COURT
(HIS HONOUR JUDGE ROACH)

		Royal Courts of Justice Strand London WC2 Monday, 22nd January 2001

1. LORD JUSTICE TUCKEY: I will ask Mr Justice Penry-Davey to give the first judgment in this case.
2. MR JUSTICE PENRY-DAVEY: This is an appeal from an order of His Honour Judge Roach on 17th May 1999 in the Barnstaple County Court allowing an appeal from an order made by District Judge Turner on 19th February 1999 and ordering that the claimant's case be struck out. The claimant is the appellant in this appeal.
3. The matter has an involved history. The appellant issued proceedings in the Barnstaple County Court against the respondent on 19th March 1998 seeking damages for the respondent's failure to refurbish premises let to the appellant following a fire on 30th April 1994. On 9th April 1998 the respondent by way of defence set-off and counterclaim denied any entitlement to damages, alleged that the tenancy had been surrendered, alternatively forfeited by reason of non-payment of rent, alternatively by reason of fundamental breach of covenant, and seeking by way of set-off and counterclaim arrears of rent and repayment of a £1,000 loan.
4. On 24th April 1998 judgment was entered against the defendant by the Court with damages to be assessed and costs. Subsequently when the respondent's solicitors became aware of that and reminded the Court that a defence and counterclaim had been filed and automatic directions given, on 29th April 1998 the Court of its own motion set aside that judgment.
5. On 16th June 1998 District Judge Turner entered summary judgment on the counterclaim for the £1,000 loan and ordered the appellant to file and serve further and better particulars within 21 days, setting out fully how he based his claim for damages, by then limited to £50,000.
6. On 9th July 1998 the appellant filed what he described as preliminary and further and better particulars, but disclosed no documents. On 31st July 1998 the respondent's solicitors wrote to the appellant's solicitors asking for specific disclosure of the business accounts, income tax returns and assessments for the three years prior to the fire. On 28th October 1998 the respondent applied for specific discovery of those documents. On 17th November District Judge Turner made an order in the following terms:

"... unless the plaintiff do provide to the defendant's solicitors copies of the plaintiff's business accounts, income tax returns and income tax assessments in respect of each of the three years prior to 13 April 1994 within 28 days from today the action be struck out and the plaintiff do pay the defendant's costs on Scale II."

7. On 11th December 1998 the appellant's solicitors wrote to the appellant in the following terms:

"I had not seen the Order of 17th November 1998 previously until you sent me a copy with your letter of 8th December.

I have already told you my Legal Aid Certificate on your behalf does not cover the cost of my making any application to the Court or representing you in Court.

If you wish me to carry out work of that nature privately I would ask that you please let me have £250 on account if I am to make any such application.

What I would recommend is that you make immediately application to the Court before 15th December to set aside that Order. I also recommend that you immediately send to Peter Peter & Wright what accounts, income tax returns and income tax assessment you do have for the period in question and you set out in your grounds of application to set aside the Order that you have sent all you have and that you have no other such returns."

8. On 14th December 1998 the appellant completed a form of application for an extension of time annexing the letter from which I have quoted. That form of application was not received by the Court until 18th December 1998, three days after the final date for compliance with the order of 17th November. It was given a return date of 12th January 1999. On that day the respondent's solicitors appeared but the appellant without explanation failed to do so. It is hardly surprising in those circumstances that Deputy District Judge Williams dismissed the application for an extension, ordered that the claim be struck out and gave the respondent his costs.
9. On the following day, 13th January 1999, the appellant wrote to the respondent's solicitors enclosing some documentation. That letter was received on 20th January 1999, the same day that the appellant completed an application for appeal against District Judge Williams' Order. It is to be noted that the grounds of appeal settled by the appellant himself did not include any suggestion that he had been unaware of the hearing date of 12th January. That notice of appeal was issued on 25th January and resulted in a hearing before District Judge Turner at which both parties were present despite the respondent's solicitors having written to the Court on 5th February 1999 stating that the Court should not have allowed the application as the order made on 12th January had directed that no further applications were to be made without the leave of the Court.
10. On 19th February District Judge Turner set aside the order of 12th January, extended time to that day to file further and better particulars (already filed) and ordered the appellant to pay the respondent's costs thrown away on 12th January in any event.
11. On 24th February 1999 the respondent gave notice of application to rescind District Judge Turner's order, followed three days later by the appellant's application seeking to strike out the respondent's appeal of 24th February. That notice likewise made no suggestion that the appellant had been unaware of the hearing date of 12th January 1999.
12. Thus it was the matter finally came before His Honour Judge Roach on 17th May 1999 when both parties were represented by counsel and the appellant was present in court. The judge allowed the appeal against District Judge Turner's order of 19th February, ordered that the appellant's case be struck out and gave the respondent his costs.
13. On 7th June 1999 the appellant gave notice of appeal in these terms:

"The Order of Circuit Judge Roach of 17th May 99 striking out the Lower Court's Order of 19th February 99 be struck out as an abuse of the overriding objective of CPR98 Rules in particular CPR 1.1(2)A in that Judge Turner knew my circumstances and Judge Roach did not. His views being: unreasonable behaviour."

14. It was against that background that the matter came before this Court over a year later when on 13th June 2000, Laws LJ granted permission to appeal and extended the appellant's time in which to serve notice of appeal to 20th June. It is clear from the transcript of Laws LJ judgment that he was under the impression that the appellant had judgment in his favour, with damages to be assessed. In the light of the document entitled Appellant's Further Skeleton it appears that counsel for the appellant had given him that impression. If so, it was wrong. It is clear from the chronology I have set out that that judgment had been set aside shortly after it was entered.
15. In his judgment His Honour Judge Roach set out some of the history, including the order for particulars and the provision of business accounts, income tax returns and assessment. He set out the respondent's contention that by the time of the District Judge's order of 19th February the action had already been struck out because on 17th November 1998 an unless order had been made and the Court had not received any application to extend time until after the period in the unless order had expired. He also set out the respondent's contention that it was wrong on 12th February to re-instate the case because the appellant's case had no merit and there was no reasonable explanation of why he had not appeared on 12th January. The judge sought to apply Civil Procedure Rules part 27.11, which is applicable to small claims when the appellant's claim was a multi-track claim. This was a transitional case in the sense that the appeal was in respect of an order made before 26th April 1999 but was being heard after that date.
16. This Court has indicated in Biguzzi v Rank Leisure [1999] 1 WLR 1926 the correct approach to such cases. It is not submitted on behalf of the appellant that the judge was wrong in seeking to apply the Civil Procedure Rules though it is accepted that CPR part 27.11 did not apply to this claim. The respondent however submits that the judge was right in applying the general approach of that rule to the appeal before him and correctly addressed himself to three issues, namely, first, whether there was good reason put forward for the appellant's non-attendance at the hearing on 12th January 1999; secondly, whether the appellant had demonstrated a reasonable prospect of success; and thirdly, whether it would have been right to extend time in any event. The respondent points out that by CPR Part 39.3(5), where an application is made for a retrial by a party who failed to attend a trial, a Court may grant the application only if the Applicant:

"(a) acted promptly when he found out that the Court had exercised its power to strike out or enter judgment or make an order against him;

(b) had a good reason for not attending

the trial; and

(c) has a reasonable prospect of success at the trial."

17. Neither part 39.3 nor Part 27.11 technically applies to an application for a rehearing of an interim application at which an Order has been made in the absence of a party, but, submits the respondent, in exercising its powers under CPR Part 23.11(2) (where a court has made an order in the absence of a party it may "on application or of its own initiative re-list the application") and Part 3.1(2)(a) ("extend or shorten the time for compliance with any court order (even if an application for extension is made after the time of compliance has expired)") the Court ought to apply similar principles in considering an application for a re-hearing of an interim application determined in the absence of one party.
18. Against a background of the Court being required to give effect to the overriding objective of dealing with cases justly (CPR Part 1.1) in my judgment the judge properly took into account the matters he set out in reaching his decision in this case. As to the first of the three matters, namely whether there was good reason put forward for the appellant's non-attendance at the hearing of 12th January 1999, the appellant submits that the judge failed to have sufficient regard for the explanation given for his non-attendance which it is submitted in any event was not deliberate. The judge concluded that no good reason had been put forward and pointed out that counsel had argued that the appellant had been on holiday at the material time and therefore could not attend. Then, during the course of the case, the appellant himself told his counsel that he had other cases with which to deal and therefore he could not attend. The judge concluded that non-attendance because of dealing with other cases when not communicated to the Court could not possibly be a good reason for non-attendance.
19. The appellant now suggests that the reason he did not attend on 12th January 1999 was because he was not notified of that hearing date despite the appearance in his core bundle of the application with the date on it. I have indicated that there was no suggestion of that being the reason for his non-attendance in two notices of appeal he gave shortly after 12th November 1999, and that was not the reason for non-attendance given to Judge Roach, though the appellant now suggests it was the reason given to District Judge Turner when he made the reinstatement Order on 19th February 1999. If so, it is inconceivable in my judgment that wholly different reasons would have been advanced to His Honour Judge Roach less than three months later.
20. It is also extremely unlikely in my judgment that if that had been the case, there would have been no mention of that reason in the notices of appeal that immediately followed the hearing at which the appellant was not present. It is to be noted that in a file of documents relating to other actions concerning this appellant (which he gave to the Court during the course of the hearing today), there is one document in the appellant's handwriting signed by him dated 20th January 1999. It concerns an action with which this Court is not concerned, but it is to be noted that it is an application for an appeal against a district judge's order to dismiss an application that the appellant had made in that matter. The first ground that he sets out in relation to that appeal is that he had not been notified of a particular hearing date. That, as I have indicated, is dated 20th January 1999 which is precisely the period with which we are concerned in this case.
21. In his judgment on 13th June 2000, granting permission to appeal, Laws LJ said this in paragraph 12:

" ... there is an issue as to what the applicant said by way of explanation for his failure to attend the hearing on 12 January. There was a suggestion that he had said that he had notified the Court in advance that he would be engaged on other cases on the day in question. Miss Start has taken his express instructions and tells me that he is now unclear precisely what he said to the judge, but it was either that he had asked for the January hearing to be adjourned or that he had not received notice of the January hearing. Those two explanations, being different from and inconsistent with each other, seem to me to be perhaps unlikely to have been confused by the applicant; but one has no better information than that."

22. Today, the appellant has handed to us a copy of a witness statement dated 2nd June 2000 that he indicated was before the Court when the application for permission was heard in which he says this:

"I have to say that I think there has been an ongoing confusion as to why I was not present in court on the 12th of January 1999."

23. He then goes on to refer to certain matters including correspondence, and he concludes in this way at the end of paragraph 6:

"I believe the correspondence suggests that neither my solicitor Mr Pope nor I were aware of the hearing on the 12th January 1999. As I said for sure I was away for part of the time and also for sure I had other court hearings to deal with around about the time of the hearing but I believe the essential issue and which was not understood by counsel on the 17th of May 1999, was that I simply did not know of the hearing on the 12th of January 1999."

24. It is to be noted that there has been a manuscript alteration to that last sentence, so that it reads:

"... that I simply did not know that the hearing on the 12th January 1999 would go ahead in my absence."

25. It is clear in my judgment that the appellant has given a number of different and inconsistent explanations at different times as to why he did not attend the hearing of 12th January 1999. It is further to be noted that following that witness statement of 2nd June 2000, Miss Start, in what is described as the appellant's further skeleton received by the Civil Appeals Office on 21st July 2000, says this in paragraph 6:

"The hearing of that application for an extension of time on 12th January 1999 went ahead without the Claimant present, the Claimant having believed that he had notified the Court that he would be unable to attend."

26. In the light of those different and inconsistent explanations and in the light of all the information now before the Court, I am driven to the conclusion that the appellant was well aware of the hearing date of 12th January 1999, had been made aware by his solicitors in December 1998 that he was not covered by legal aid for the cost of making an application to the Court or for representation at Court, and that no explanation for his absence had been given to the Court on 12th January 1999 either in advance or at the time of the hearing. It is true that the appellant has been for substantial periods a litigant in person, but it is equally clear that he has considerable experience of the Civil Courts. In my judgment the judge's conclusion that there was no good reason for the non-attendance on 12th January 1999 was amply justified.
27. The second matter considered by the judge was whether the appellant had a reasonable prospect of success. That issue in turn depended on the evidence produced by the appellant to prove economic loss. The judge concluded that he was, as he put it "very doubtful as to reasonable prospects of success". By the time the matter came before the judge, the appellant had provided the respondent with a series of assertions as to the amount of his annual loss and with limited documentation. In my judgment on the information before him the judge was right in expressing considerable doubt as to whether there was any reasonable prospect of success.
28. By the time the matter came before Laws LJ on the application for permission, there was a report from Mr Barnes dated 20th March 2000 which refers to the paucity of financial information relating to the appellant's business for the period before the fire. It concludes on the basis of what is described as limited and incomplete evidence, and from the writer's interview with the appellant, that it is likely that the business was profitable and unlikely that it was loss-making. It adds "nevertheless, the shortage of reliable and independent financial information is likely to be a continuing limitation in the action."
29. The appellant has provided the Court with further documents today relating to items bought or sold at auction in January and February 1994, but in my judgment matters have not advanced substantially beyond the position they were in before Judge Roach. There is still very real doubt as to the success of this claim based on the failure to refurbish after a fire that took place now nearly seven years ago.
30. On the final matter considered by the judge, namely whether it would have been proper to extend time in any event, the judge did not specifically consider Part 39(1) of the Civil Procedure Rules, directing the Court when considering relief from sanctions to consider all the circumstances including the interests of the administration of justice, the promptness of the application for relief, whether the failure to comply was intentional and whether there is good explanation for it, the extent of the compliance with other court orders, whether the failure to comply was caused by the appellant or his legal representative and the effect on each party. However, it is clear that the judge did consider the circumstances, including what he described as the appellant's dilatory approach to litigation, the fact that the appellant had sought to blame his solicitors who, having regard to the letter of 11th December 1998, were clearly not to blame, the fact that he had not told his solicitors promptly about the unless order of 17th November despite the solicitors making it clear, on a number of occasions, that they wished to see the appellant, the fact that he was in breach of an unless order and the consequences to the appellant of an extension not being granted.
31. Accordingly there is no basis in my judgment for saying that the exercise of the judge's discretion on his re-hearing this matter and his subsequent conclusions were demonstrably wrong. I would accordingly dismiss this appeal.
32. LORD JUSTICE TUCKEY: I agree. The appeal will be dismissed.
(Appeal dismissed; respondents to have their costs of the appeal from 30th October last year)