England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE PROFORMA

COURT OF APPEAL (CIVIL DIVISION )

(His Honour Judge Welchman )

Royal Courts of Justice

Strand

London WC2

Monday, 9th August 1999

B e f o r e :

LORD JUSTICE PETER GIBSON

LORD JUSTICE SEDLEY

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JULIE ANN COBBOLD

Claimant

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LONDON BOROUGH OF GREENWICH Defendants

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MR. R.K. SAHONTE (instructed by the Legal Department, London Borough of Greenwich) appeared on behalf of the Applicant/Defendant.

MR. J. MITCHELL (instructed by Messrs Edell Jones & Lessers, London, E6) appeared on behalf of the Respondent.

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J U D G M E N T

( As approved by the Court )

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Crown Copyright

LORD JUSTICE PETER GIBSON: This is an application by the defendant, the London Borough of Greenwich, for permission to appeal from the order of 5th August 1999 of His Honour Judge Welchman in the Woolwich County Court. Greenwich had applied to the judge for an adjournment of the hearing of the action which is brought against Greenwich by the claimant, Julie Ann Cobbold, and is listed for two days commencing tomorrow. The judge refused that application as well as Greenwich's further application for leave to amend their defence.

The claimant commenced her action in April 1997. She sought damages for disrepair of her home, of which she has been the tenant since 1991 and Greenwich has been the landlord. Her home is at 24, Dahlia Road, Abbey Wood, London SE2. She relied on breaches of repairing covenants by paragraph 3 of her particulars of claim. She referred to the express terms in her tenancy agreement for Greenwich to maintain the premises in good condition and repair except for repairs which were her responsibility, and to keep under constant review the changing needs of tenants and to take action to improve property to keep pace with such needs. She also relied on section 11 of the Landlord and Tenant Act 1985, as amended, that section containing terms which are implied into tenancies, and she also relied on section 4 of the Defective Premises Act 1972.

By their defence served on 12th May 1997, Greenwich traversed all the allegations made. The action was originally listed for hearing on 23rd November 1998 but that date was vacated on the application of the claimant, with the consent of Greenwich, pending the outcome of an appeal in another case, Welsh v London Borough of Greenwich . In that case judgment was given against Greenwich in the County Court in early January 1999.

One of the points in issue on the pleadings was whether the express terms of the tenancy agreement included an obligation on the part of Greenwich to deal with condensation dampness in the claimant's property. A similar point had been taken successfully by the tenant in the Welsh case. But Greenwich are appealing that case, and they would further wish to claim that the tenancy terms in the Welsh case differ from those in the claimant's case. That is because, Greenwich claim, there has been a variation made to the tenancy agreement.

On 18th November 1998 the claimant's solicitors were sent a copy of an unsigned witness statement by Elizabeth Sutton for Greenwich giving evidence of the variation. The claimant's solicitors were also sent a supplementary list of documents relating to proceedings brought by the claimant against Greenwich in Greenwich Magistrates' Court under the Environmental Protection Act 1990. Those proceedings had led to an award of damages against Greenwich in favour of the claimant on 4th April 1997. The documents were also sent to the claimant's solicitors. On 22nd March 1999, they, by letter to Greenwich's solicitors, noted that Greenwich would be pursuing their argument in relation to the variation of the tenancy. The claimant's solicitors, between March and June, were suggesting that the case should not be listed for hearing until the outcome of the appeal in the Welsh case was known. Greenwich, on the other hand, were pressing for listing the action, but they were doing so on the footing that there had been a variation of the tenancy in 1995. On 18th May 1999 the claimant's solicitors pointed out that the variation had not been pleaded. Greenwich's solicitors responded on 27th May, saying that the claimant's solicitors had been aware of the variation claimed by Greenwich because of correspondence between them. Greenwich's solicitors said that they were waiting to receive an amended defence from counsel. That document was sent to the claimant's solicitors under cover of a letter of 29th June.

By the draft amended defence Greenwich sought to plead a variation to the tenancy of the claimant from 17th July 1995 and a compromise of the claimant's claim for damages by reason of the award made in the Greenwich Magistrates' Court on 4th April 1997. On 13th July the claimant's solicitors refused to consent to the proposed amendment. They said that it was far too late. They said that the hearing of the trial had been fixed for the 10th and 11th August 1999. What appears to have happened is this. A Deputy District Judge, of his own motion, had on 25th May set down the action for hearing and fixed the hearing date of 10th and 11th August. But Greenwich did not receive notice of this. On 29th June Greenwich had written to the County Court to ask whether the case had been listed for hearing, but no reply was received. It was only when, on 14th July, Greenwich's solicitors received the letter from the claimant's solicitors of 13th July that Greenwich became aware of the hearing date. Greenwich found that Miss Sutton and another witness, Lee Kerry, whose evidence was to be to the effect that the problem of condensation was caused by the lifestyle of the claimant, were unavailable for the 10th and 11th August. On 18th July Greenwich's solicitors wrote to the claimant's solicitors, pointing out that their attitude to the hearing of the case had undergone a change. Greenwich's solicitors said that the claimant's solicitors were aware of the point sought to be raised in the amended defence. Greenwich therefore made the application refused by the judge on 5th August.

The judge pointed out that the matter to which Mr. Kerry's evidence would be relevant had not been pleaded and was not the subject of an amendment. The judge noted an argument advanced on behalf of the claimant that, if Greenwich were allowed to amend, that would require a complete review of the evidence; the case would have to be refocused and the hearing date would have to be changed. The judge had regard to the overriding objective in Part 1 of the Civil Procedure Rules and refused leave, saying:

"It would take far too long to get back on track. It would increase costs. It would disrupt the business of the court. Something has gone wrong and I cannot see that there will be any prejudice."

Greenwich now seek leave to appeal, and, if granted, they originally had been seeking an order adjourning the hearing as well as leave to amend the defence. However, Mr. Sahonte for Greenwich realistically accepted that what was important to Greenwich was the leave to amend the defence, and he told us that if that were granted, Greenwich would not object to the hearing proceeding tomorrow. He submits that the judge erred in refusing leave to amend. He stresses that the claimant had been aware of the two new issues sought to be introduced by the amendment to the defence since November 1998. He says that the judge was wrong in law and erred in the exercise of his discretion when he refused leave to amend and refused to adjourn the hearing.

This application is resisted by Mr. Mitchell who has had to appear before us at very short notice. We are grateful to him for his assistance. The judge was exercising his discretion in making the order which he did. This court is always reluctant to interfere with such an exercise by a judge, particularly in his role of managing cases before him. The judge rightly referred to the overriding objective in Part 1 of the Civil Procedure Rules, and he expressed himself as having had regard to what he called the Woolf criteria.

There can be no doubt but that Greenwich are late in seeking the amendment which, they should have realised at least as early as November of last year, needed to be made in order to take the two new points which they are wanting to argue. However, I own to being unhappy with the way the judge exercised his discretion, particularly in relation to the application to amend. It is, of course, important that trial dates, when they are fixed, should be adhered to, but I fear that he may have let that factor dictate his approach to the question of amendment. The overriding objective is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significantly harmed. I cannot agree with the judge when he said that there would be no prejudice to Greenwich in not being allowed to make the amendments which they are seeking. There is always prejudice when a party is not allowed to put forward his real case, provided that that is properly arguable.

Further, four relevant factors do not appear to me to have been given proper weight by the judge. The first is that, since last November, the claimant has had the statement of Elizabeth Sutton. It is clear from the correspondence that the claimant has been well aware for many months of the point which Greenwich wished to take, that is to say, that the terms of the tenancy agreement were varied in 1995, so that at least one of the matters relied on by the claimant may not properly be relied on. That Greenwich should have sought leave to amend to plead this point did not take the claimant by surprise.

The second is that, although Greenwich's solicitors did not spell out the point now sought to be taken in relation to the Greenwich Magistrates' Court proceedings, the claimant's solicitors were sent the documents on which Greenwich relied in November 1998 as being documents relevant to the current proceedings. The facts would not appear to be in dispute and therefore a pure point of point of law arises from them.

The third is that the claimant's attitude to having the proceedings brought on underwent a volte face in the first half of 1999, the claimant having been anxious to await the outcome of the appeal in the Welsh case, while noting, without objection, that Greenwich wished to argue that the tenancy agreement had been varied. It was only the direction of the Deputy District Judge of his own motion, causing the hearing to be listed for 10th and 11th August, that caused the alteration in attitude.

The fourth is that the court itself has some responsibility for the fact that Greenwich's application to the judge was made comparatively late. The Deputy District Judge's order of 25th May was not drawn up, it seems, for more than two weeks. It should have been communicated to Greenwich by the court. Greenwich never received any notice of the hearing, and it was only via the claimant's solicitors' letter of 13th July that Greenwich became aware of the hearing date. Further, Greenwich's letter of 29th June to the County Court should have been responded to promptly but received no reply.

These factors, together with the general justice of the case, including the prejudice to Greenwich caused by the refusal of the amendments, seem to me to indicate that the judge erred in law in the exercise of his discretion. I therefore feel that this court is able to interfere with that exercise.

What order should now be made? First, I think it only just that Greenwich should be allowed to amend their defence. The amendments are not happily pleaded, and we have discussed with Mr. Sahonte improvements to clarify what was a little obscure. For my part, I would be prepared to give leave to amend in that revised form. Second, I am anxious that the hearing date should not be lost at such short notice. That would be to waste valuable court time. For my part, I can see no reason why the case should not proceed, subject, of course, to the possibility of any application to the judge for an adjournment, should that be necessary. It is far from clear that it will be necessary to seek any further adjournment. Miss Sutton's evidence would not appear to me to raise matters which could be challenged by the claimant. Miss Sutton only deposes to the instructions which she gave to others who were to serve the relevant notices of the proposed changes to the tenancy conditions back in 1995. As it would seem to me, her evidence could really be admitted without further dispute.

As for Mr. Kerry's witness statement, that will no doubt be material which can be utilised in cross-examining the claimant and her experts or other witnesses. No application has been made to us to seek a further amendment to introduce evidence to the effect that the claimant is responsible for the condensation dampness of her property. Our attention has been drawn by Mr. Sahonte to the fact that Greenwich disputes the allegation made by the claimant that Greenwich caused the loss for which damages are claimed. Whether Greenwich should be making an application to amend to the trial judge is a matter for them. It may not be necessary for any adjournment to be sought in relation to Mr. Kerry whose evidence would appear not to be central to the dispute.

For my part, therefore, I would give leave to appeal. I would allow the defence to be amended in the manner indicated but I would allow the hearing to go ahead tomorrow. I should add that I was not satisfied by the submissions made by Mr. Mitchell that there was any real disadvantage to the claimant in the orders which I have proposed. Mr. Mitchell mentioned the fact that the claimant's solicitors are not sure that they have had full discovery. It appears from what Mr. Sahonte has told us that it may be that what the claimant's solicitors had in mind was whether Greenwich were acting ultra vires when they sent out notices for the proposed changes in tenancy conditions. That would appear to be a speculative point taken by the claimant's solicitors. However, we have had an assurance from Mr. Sahonte that that point will be looked into immediately and the claimant's solicitors notified as soon as possible whether there is any substance in the point. No doubt, if necessary, documents to support the vires of what was done can be produced. For these reasons I would allow the appeal to the limited extent indicated.

LORD JUSTICE SEDLEY: I agree with my Lord, both in respect of his reasons for allowing the appeal and in relation to the orders which he proposes.

Order: Application allowed; appeal allowed to extent as indicated in judgment with costs, those costs to be set off against any claim for damages and costs that may succeed; otherwise not to be enforced without leave of the court.

(Order not part of the judgment of the court)