England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO RELY ON FURTHER EVIDENCE
APPLICATION FOR PERMISSION TO APPEAL AND AN
EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Wednesday, 6th June 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal by Miss G P Colchester from a judgment of His Honour Judge Rudd given in the Southampton County Court on 7th October 1999. Miss Colchester had brought claims against her son and daughter-in-law in respect of various sums and items which she claimed to have lent them in the years 1989 to 1999. In the case of one claim it was a motor car rather than a sum of money. Another claim involved the provision of numerous items of furniture, where the allegation was that they were provided at Miss Colchester's cost on the basis that 50 per cent of their price would be paid by the defendants on demand. Those were the claims - one in respect of a lent motor vehicle, one in respect of the furniture I have just described, and others in respect of various sums of money.
2. The judgment was given by Judge Rudd on 7th October 1999. The judgment was given against Miss Colchester on the ground that the claim was essentially one to recover the proceeds of crime but the judge also went on to say that the central question otherwise which arose on the claim was whether these matters were a matter of loan, as Miss Colchester alleged, or a matter of gift as the defendants alleged.
3. Both Miss Colchester and the defendants gave evidence. The judge said in a passage of his judgment which dealt with their credibility that although he was satisfied - and indeed it was admitted - that the various transactions (I use that expression loosely) had taken place, and that was not in dispute, nevertheless on the critical question of whether they were loans or gifts he felt that the credibility of all three witnesses before him was very suspect and that "they all end relatively equally". In effect, therefore, although he did not put the matter formally in this way, if he had had to make a decision on the facts alleged he would presumably have found that the claims failed on the burden of proof. So there are those very real difficulties for Miss Colchester on the merits of the matter.
4. Miss Colchester's real difficulty or additional difficulty however in seeking permission to appeal is that after that judgment she did nothing to pursue any rights of appeal for over a year until 26th October 2000. She then filed a notice of appeal incorrectly, at Winchester as I understand it. She only properly filed her notice of appeal here in London at the Royal Courts of Justice in February 2001. Nevertheless, I am prepared for the purposes of this application to work on the basis of the earlier date, 26th October 2000. However, even that date was over one year after the judgment of Judge Rudd. Although Miss Colchester is a litigant in person today and was a litigant in person also before Judge Rudd, and I make full allowances for that, as she has candidly admitted to me this morning she was perfectly aware of her right of appeal or her right to seek permission to appeal and thus of necessity of seeking to appeal. She had on an earlier occasion in this litigation done exactly that, when her claim had originally been struck out and she pursued her appeal to the Court of Appeal, which court reinstated her claim. That success lead on to the trial before Judge Rudd.
5. Why did Miss Colchester leave more than a year to pass before seeking a remedy by way of appeal? There is no really very satisfactory answer to that question. Miss Colchester has told me - and I think I accept - that she went through a period of severe depression following the judgment against her. She told me that the original remedy which she sought was - strange as it may sound - following up on some remarks of the judge in his judgment that of seeking the Hampshire Constabulary to institute proceedings against either her or the defendants in respect of certain matters, although what matters is not particularly clear to me. She relies upon that alternative way of proceeding as an explanation for delay, saying that it took time for her to pin down the police to a final answer on the matter. Even so, she had the final answer of the police - which was that they saw no evidence on which criminal charges would be brought against any person - by 8th March 2000; I have the letter before me. Therefore, there is no explanation of the further delay of over 6 months from March to October.
6. THE APPLICANT: As soon as the letter arrived from police then I issued a small claims court order, and it was not until that got to the court then he said you have to try and appeal. I said I am out of time and he said you may get permission for that.
7. LORD JUSTICE RIX: I am obliged, I was coming to that. Following her disappointment, if that is the right way to put it, involved in her correspondence with the police, Miss Colchester's next move was to institute a claim in the small claims court - - where was that?
8. THE APPLICANT: Portsmouth.
9. LORD JUSTICE RIX: - - in Portsmouth in respect of different claims from those raised in the proceedings before Judge Rudd. She told me this morning that she deliberately instituted her claim in the small claims court so as to avoid the difficulty which she experienced before Judge Rudd of being faced by the opposition of counsel instructed on behalf of her daughter-in-law. Be that as it may, on instituting that claim she ran into this difficulty, that the district judge in Portsmouth told her that he was unable to proceed with that claim while the judgment of Judge Rudd was outstanding on the basis that it was a bar to further proceedings. Whether that is in fact so or not and it would not be so if Miss Colchester is right in telling me that her small claim in Portsmouth is for a different matter not covered by her claim before Judge Rudd - but whatever the position, Miss Colchester tells me it was only upon learning that information that she resorted to the remedy of seeking to appeal Judge Rudd's judgment. It was done, in effect, not so much for its own sake as to escape the bar that she was experiencing in a small claims court in Portsmouth. She tells me that that claim was made on 22nd September, so it was within something like a month after that that she instituted her application for permission to appeal in Winchester.
10. I am afraid to say, despite Miss Colchester's helpful and polite submissions to me this morning, I am not satisfied that there is any good reason for the very serious delay that has taken place since Judge Rudd's judgment in seeking permission to appeal and that there is no ground upon which I could properly extend time in her favour.
11. Having said that, I briefly comment upon the grounds of appeal raised by Miss Colchester in her notice of appeal. Her first ground was on the basis of the letter dated 8th March 2000 from Chief Superintendent Basson of the Hampshire Constabulary which she sought to put forward as new evidence of any lack of taint with illegality. The difficulty with that is that the letter itself is really dealing with the question of complaints against the police, as the last paragraph of that letter makes clear, and in any event, as Miss Colchester candidly admitted before me this morning and before Judge Rudd, she had been convicted in 1992 of charges arising out of mortgage frauds and the obtaining of credit cards by deception, the sums involved amounting to well over £200,000. It was those matters which the judge principally, although not entirely perhaps, had in mind in his judgment. It seems to me that in any event Miss Colchester's first ground of appeal has no merit.
12. Secondly, Miss Colchester complains that the judge was misled by false allegations made by her daughter-in-law's counsel. It seems to me however that what Miss Colchester is talking about there is simply a matter of counsel putting the defendants' case and making submissions in the light of their evidence. I can well appreciate the difficulties of litigants in person when faced by the professional expertise of counsel. Of course, I have sympathy for that difficulty. But I have no reason to think that counsel acted in any way unprofessionally in this case or misled the judge.
13. Thirdly, Miss Colchester complains of the injustice which would befall friends of hers who lent her money whom she will be unable to repay unless she recovers in the claim she brought against the defendants. I appreciate her goodwill if that part is sincerely made, and I have no reason to think it is not, but it seems to me that that is a matter between her and other parties which does not affect the justice of the matters between her and the defendants in these proceedings.
14. Her fourth ground of appeal was that the judge was biased for reasons which are obvious in his judgment. I have read and re-read his judgment carefully and I can find no signs of bias in it. On the contrary, in reviewing the credibility of the parties he found serious defaults in the case of all three parties to the litigation.
15. Fifthly, she complains that she is prevented from taking further action against the defendants without succeeding in an appeal. That is not an injustice if her further claims are covered by the judgment against her. It is only fair and just that a judgment once given settles the matters which were before the court on that occasion, and without independently providing good grounds for an appeal and, as I explained, showing good reasons why time should be extended in her favour, it is impossible to find any injustice on that ground.
16. I have therefore, out of consideration to Miss Colchester's application and her helpful submissions, touched briefly upon the merits of her five grounds of appeal. Ultimately, I come back to her primary difficulty which is that in effect she is only seeking this application for permission to appeal so very much out of time in order to assist her in bringing yet further litigation against her son and daughter-in-law which, if covered by the judgment already given against her, is something she is not entitled to do, and if not covered by the judgment already given against her is something she is able to do in any event.
17. For those reasons I refuse to extend time and refuse to grant this application for permission to appeal.
18. There we are, Miss Colchester, you have been very helpful to me this morning. I am sorry to disappoint you.
Order: Application refused