England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYORS & CITY OF LONDON COURT
(His Honour Judge Marr-Johnson)

		Royal Courts of Justice Strand London WC2 Thursday, 28th June 2001

1. LORD JUSTICE JUDGE: This is an application for permission to appeal against an order made by His Honour Judge Marr-Johnson on 28th March 2001 in the Mayors and City of London Court. The decision that he reached was reached in the absence of Mr. and Mrs Gopee, the first and second defendants. The papers (I say that deliberately) notwithstanding the fact that the transcript of judgment before me says that they both appeared in person. Mr. Gopee has told me on behalf of both of them that they did not. There is not a single reference of a communication between the judge and either the first or second defendant, which would have been inconceivable in the circumstances if they had been present. It is clear from the papers before me that they had produced evidence to support the fact they would be unable to attend. It seems therefore inconceivable, notwithstanding the text on the front page of the transcript of judgment, that they were there.
2. They launched an appeal against that decision. It was launched well within in time. It raised a number of issues. Since then it has been waiting, with many other cases in the list, for the attention of a judge, a Lord Justice of Appeal. It has come up for consideration today. There is a complication which is that part of the order made by His Honour Judge Marr-Johnson involved a mandatory requirement of the defendants to carry out various items of repair to the premises by 30th June, which is 4 o'clock this coming Saturday.
3. It is clear to me that this decision having been reached in the absence of the defendants, the first court to which their attention should be directed is not the Court of Appeal but the court at which the original order was made in their absence. That is the effect of the current rule 39.3.3. When I discussed with Mr. Gopee on behalf of himself and his wife why the case was before me, it is obvious that they always intended to have the order set aside and that they ran into difficulties with legal representation or, more particularly, with the absence of legal representation. Faced with a judgment and consequent orders with which they disagreed, they assumed, as litigants in person, that the right tribunal to consider the order they were criticizing was this court. I do not blame them for having made that mistake. The correct approach is the one I indicated this morning. They should approach the county court and ask for the order made by His Honour Judge Marr-Johnson to be reconsidered and they should apply to set it aside.
4. The Citizens Advice Bureau have kindly seen Mr and Mrs Gopee today. They are doing their best, in the limited time available, to apply for Mr and Mrs Gopee to lodge the appropriate proceedings with the county court as a matter of urgency, bearing in mind the deadline of 4 pm this coming Saturday.
5. It will be for the judge hearing the application to set the order aside, to make his own mind up about the merits and the issues which are canvassed before him. Nothing that I say in the course of this short judgment is intended to prejudge his decision or direct or indicate to him what decision he should reach. That is a matter for him on the evidence that he has, not for me on the evidence that I have. I would, however, like to record that it seems clear to me that the reason for the otherwise very long delay in the matter coming before the county court is that Mr. and Mrs Gopee made the error that they did in proceeding by way of an application for permission to appeal. I was satisfied, before asking them to go to the Citizens Advice Bureau, that they had taken the steps that they thought were appropriate in as rapid a way as they could and that they genuinely believed this was the right course to take. It will be for the judge to consider the delay, the reasons for it and the impact, if any, on everyone else involved in the case when making his decision. A copy of this transcript shall be provided at public expense as quickly as possible. It can be provided to the Citizens Advice Bureau without further reference to me for correction because of the urgency of the case, and may be submitted by Mr. and Mrs Gopee, or by whoever is acting on their behalf, to the judge at the county court, again without reference to me for correction. The application for permission to appeal will be dismissed.
Order: Application refused; judgment to be supplied to the judge at the county court and the Citizens Advice Bureau without correction by Lord Justice Judge at public expense.