England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(His Honour Judge Nash)

		Royal Courts of Justice Strand London WC2 Friday, 1st December 2000

Friday, 1st December 2000

1. LADY JUSTICE ARDEN: This is an application by Mr Gooden for leave to appeal against the order of His Honour Judge Nash, dated 2nd March 1999, whereby the judge gave judgment for the defendants in the sum of £950 with costs. The principal matter dealt with by the judgment was an incident which occurred on 22nd April 1996, which appears to have been one episode in a long running dispute between two families. In addition, Mr Gooden, who has appeared in person to conduct this application, informs me there has been a campaign of racial abuse. He tells me also that various matters, including the episode of 22nd April 1996, have unfortunately led to the split up of his wife and his family from five of their six children.
2. I must, of course, focus in this application on his Honour's judgment. It would be helpful if I stated the names of the parties involved. Mr Gooden, the applicant, was previously married to Mrs Sharon Dowling, but is now married to Mrs Gooden; and of the second marriage there is a daughter, or it may be of the first marriage, Deborah Gooden. Mrs Sharon Gooden was---. I am sorry, could you clarify that for me? Is Deborah your daughter or Sharon's daughter?
3. THE APPLICANT: No, we have no children of our present marriage. We only got married after the defendant threatened to kill me. Deborah is my daughter from my previous marriage with Mrs Dowling which folded about 10 years ago. It might help to clarify, my partner is actually Sharon Rigden. That might help.
4. LADY JUSTICE ARDEN: Thank you.
5. Mr Gooden was previously married to Sharon Dowling, and Deborah Gooden is the daughter of that marriage. Mr Gooden now has a partner, Sharon Rigden, who was previously married to Peter Rigden. They have a daughter whose name appears in these matters, a Joanne Rigden. Peter Rigden has remarried and his second wife's name is Karen. On the occasion in question there were other persons involved, namely the defendant and his wife, that is Mr and Mrs Prior.
6. In the claim Mr Gooden said that the defendant, Mr Prior, had injured him on 22nd April 1996, and he claimed damages for personal injury. There must, I think, have been a counterclaim before his Lordship at the same time (although I have not myself seen it) by Mr Ian Prior, the defendant, for damages for personal injury as well.
7. In his judgment the judge said that there had been a family feud between the Dowlings and the Goodens and that the daughters of Mr Gooden, that is the daughters of Mr Gooden and Sharon Rigden, were staying with the Dowlings, that is Joanne and Deborah. The judge records that Mr Gooden and Sharon Rigden had previously removed Joanne from the Dowling's house because of concerns they had about her being in that house, but that Joanne had gone back. On 22nd April the judge found that Mr Gooden and Sharon Rigden had gone to get Joanne back again from the Dowlings, but that the Dowlings refused and the door was shut in the face of Sharon Rigden. There were further exchanges between the defendant and Mr Gooden outside the house. The Dowlings were inside the house and, of course, Mr Gooden and Sharon Rigden were outside the house. Mr Gooden forced his way into the house through the front door, breaking the lock.
8. There was another gentleman in the house, Mr Prior. Mr Prior saw Mr Gooden enter the house. The judge found that he bundled him out of the house and down the steps and across the pavement.
9. There was an issue at the trial as to whether either the claimant or the defendant had a steel instrument. The judge did not make a finding as to whether either, and if so which, of them had a steel spanner, as Mr Gooden had alleged. The judge was satisfied on the facts that the defendant, Mr Prior, had used reasonable force to evict Mr Gooden; and he was satisfied that Mr Gooden did not fall against the gate, that he did not sustain a head injury by falling on to the gate and that he did not fall over. He said that the defendant was a stronger man than Mr Gooden, and that it was a short fight.
10. Both the defendant and the claimant suffered cuts and bruises. Mr Gooden had to have stitches. The judge did not accept that there were four injuries to the claimant. He held there were just three. He did not accept that they were star-shaped, as Mr Gooden had alleged. He identified as an issue whether Mr Prior had gone too far and over-reacted once he had got Mr Gooden out of the house; but he found that there was not an excessive use of force. He held, in effect, that the claimant was the author of his own misfortune and he awarded the defendant £700. He also dealt with two further incidents in respect of which Mr Gooden has not made submissions today. The first was on 2nd January 1997 when there was an incident at court and the judge awarded the defendant £150 for threats made at the court. He found that the claimant had made the threats and then left the court building.
11. There was a further incident dealt with in his judgment which occurred in December 1997 in Westgate, where there was a confrontation in a chemist's shop. He held that the claimant was to blame and awarded the defendant £100 -- so the total amount awarded in favour of the defendant was £250 -- and he awarded the defendant his costs.
12. Mr Gooden has submitted a skeleton argument. Essentially, there are three grounds put forward for seeking leave to appeal. The first is that he wishes to adduce additional evidence. The second is that there was false and perjured evidence tendered at the trial. Third, he submits that there is a deliberate conspiracy against him and that the judgment should therefore be set aside.
13. This court is only dealing with cases which come on appeal; and in relation to questions of fact, for an appeal to succeed, it has to be shown that the judge came to a conclusion which was against the weight of the evidence. This is not a court, therefore, which rehears all the evidence again. In order to give leave to appeal the court would have to be satisfied at this stage that there was a real prospect that Mr Gooden would be able to show on a full hearing that that test was satisfied, that this is a case in which the judge's finding of fact should be set aside and that some appropriate order should be made, for instance perhaps a new trial. The fact of the matter is that the judge heard a number of witnesses and, of course, this is not an incident which turned on documents which were in existence before the event occurred. Obviously there were witness statements, but this is a case in which it was very important for the judge to hear evidence and to weigh up in his own mind which of the witness's evidence he accepted.
14. I will now turn to the three grounds put forward by Mr Gooden for seeking permission to appeal. The first is really an application to adduce additional evidence. The additional evidence is listed in paragraph 12 of the skeleton argument. First he wishes to adduce evidence that Peter Rigden, Karen Rigden's husband, is a plumber and that he had a history of forcing entry into the plaintiff's partner's home, that is Sharon Rigden's home, and assaulting her and her children and had in fact been reported for threatening to kill Mr Gooden on 15th March 1996, shortly before Mr Prior assaulted Mr Gooden with a plumbing tool.
15. The position is that Mr Peter Rigden was not actually at the house at the moment this incident occurred. He had been at the house. He was there, but there is nothing to suggest in the evidence that he gave some form of tool to his wife. The fact he was a plumber would not of itself be evidence which was likely to have a material effect on this trial; and, in addition, he was clearly known to Mr Gooden before the trial took place, and thus the evidence that is referred to must have been capable of being found before the trial was heard. In those circumstances, in my view, there is no prospect of success on that part of the application.
16. The further additional evidence which Mr Gooden seeks to adduce is that Karen Rigden and Peter Rigden had a history of violence and intimidation to Joanne Rigden before she came a witness -- and it will be noted from what I say hereon that her evidence at the trial was relied on. Mr Gooden also submits that Mr Peter Rigden was a long-standing client of Mr Keith Oliver, who had previously been the plaintiff's solicitor, and that Karen Rigden, Peter Rigden and Keith Oliver had been involved in a number of previous attempts to deprive Sharon Rigden of her home and her money and even her children, in particular, at a time when the plaintiff and his partner were contemplating moving home, which is when the plaintiff and his partner were assaulted on 22nd April 1996. Further, Mr Gooden submits that Karen Rigden had a motive for the claimant and his partner being harmed. That is another matter as to which Mr Gooden seeks to adduce evidence. He also seeks to show that that was the motivation for denying the plumbing tool existed. That evidence is sought to be adduced in support of the second main ground of seeking permission to appeal, and that is reliance on discrepancies in the evidence given to the police and to the court at this trial and, in addition, a further allegation that the defendant used Mr Gooden's children.
17. In the bundle before me is the defendant's statement to the police dated 7th July 1996, which Mr Gooden has invited me to compare with Mr Prior's witness statement in these proceedings. He drew my attention to a number of differences. The most serious difference is that Mr Prior told the police that, when he first saw Mr Gooden enter the Dowlings' house, he could see something metallic and tubular in Mr Gooden's hand. He said that Mr Gooden ran at him and hit him on the top of the head. He said he then took hold of his wrist and banged his hand against the wall; that he punched him once in the stomach. He said he took hold of the object, that he twisted it out of Mr Gooden's grip and with it in his right-hand he punched once again in the stomach. Mr Gooden invites my attention to the fact that in his witness statement for use at the trial Mr Prior made no reference to taking the metal object out of Mr Gooden's hand or having it in his right-hand while he punched Mr Gooden in the stomach.
18. There are other matters to which Mr Gooden has referred me. In particular there is an allegation in a witness statement to the police that Mr Gooden made a threat of violence towards Joanne, which Mr Gooden denies. In addition, when I look at the witness statement for use in the trial, Mr Prior says that he heard Mr Gooden threaten Deborah Gooden -- that is the daughter of his first marriage. Mr Gooden submits that that is false evidence which had been given by the defendant, and it was a false allegation against him which was obviously harmful to his relationship with his children. He also drew my attention to the fact that in his witness statement to the police Mr Prior had told the police that his partner had thrown Joanne out of the house and in his witness statement at the trial he makes that clear that that was something he had been told. It seems to me that nothing can turn on that last point because he simply is identifying how he knew what he said in his statement.
19. Mr Gooden submits that these are serious false allegations. He says that the evidence in the police statement was altered evidence.
20. As I see it, what happened is that by the time the matter got to trial before the judge the parties had submitted longer witness statements and they had corrected matters which they considered should be corrected. The way Mr Gooden puts it is that the defendant had admitted using a metal plumbing tool when he assaulted the plaintiff and that he must have disposed of that tool or weapon, and that Karen Rigden and his step-daughter Joanne had alleged that the plaintiff had threatened his own child and denied knowledge of the weapon and, thereafter, at the trial, Karen Rigden told the court that the plumbing tool or weapon did not exist and denied that there had been injuries to either the plaintiff or the defendant and that the defendant's witnesses, Karen Rigden and Joanne Rigden, whose false evidence Mr Gooden says contributed to the judgment, became witnesses for the defendant. He says that neither of those witnesses had mentioned that Mr Gooden had threatened his own child in their witness statements. From that Mr Gooden deduces that there is a conspiracy to pervert the evidence relied on. Mr Gooden, as I have said, is particularly concerned that the defendant has used the children in the evidence; but the children in question are 16 and 14. They, of course, were competent witnesses and it was open to either party to approach them about their evidence at the trial. When they were called as witnesses they would, of course, have given their evidence on oath.
21. Mr Gooden then says in his submissions that Joanne Rigden had previously admitted that she had not been kicked out of her home, that Mr Gooden had never threatened her and that Mr Prior was not in fact at the house when he alleged that he heard Mr Gooden threaten either child. With those matters Mr Gooden submits that the defendant is a "violent, malicious liar" -- a quotation from the skeleton argument -- and that he had resorted to using young children in false allegations.
22. Mr Gooden informs me he had no reason to threaten or abuse the defendant at any time. He submits, as I have said, that the court should set aside the judgment. But, as I have explained, on questions of fact a high standard has to be met on appeal, in effect, that the judge could not have reached the conclusion that he did. The judge heard the witnesses, and having heard them he decided that he preferred the evidence of the defendant. As I see it, there is nothing in the new evidence which Mr Gooden seeks permission to adduce on an appeal which would show that the judge was wrong in his conclusion or reached a conclusion he could not properly come to on the evidence and, in addition, as I have said, that there was evidence which was such that it could have been placed before the court if it was relevant before the trial took place.
23. That brings me to the final matter. Mr Gooden alleges that there is a deliberate conspiracy against him. He has mentioned the involvement of Mr Keith Oliver and Karen Rigden and Peter Rigden. It will be borne in mind that the families are closely interconnected. As far as that is concerned, there was no evidence, as I see it, referred to in the judge's judgment of that fact and it could not of itself afford a ground for setting aside the judgment which the judge has come to. The judge was simply dealing with the one incident before him. He came to certain conclusions on the facts and, as I see it, there is no real prospect of success on appeal. Therefore I decline to give permission on this question of fact.
Order: Application dismissed.