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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hoath v Vooght & Ors [2001] EWCA Civ 1136 (12 July 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1136.html
Cite as: [2001] EWCA Civ 1136
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR JUSTICE NEUBERGER)
Strand London WC2A 2LL Thursday 12 July 2001 |
||
B e f o r e :
____________________
| JOHN MARTIN EDWARD HOATH | ||
| Claimant/Applicant | ||
| - v - | ||
| 1. NIGEL JOHN VOOGHT | ||
| (The Trustee in Bankruptcy of John Martin Edward Hoath) | ||
| (A Bankrupt) | ||
| 2. JOHN CRAIG | ||
| 3. JOHN KAY | ||
| 4. MRS KRYSTYAN ANN HOATH | ||
| 5. CRIPPS HARRIES HALL (A FIRM) | ||
| Defendants/Respondents |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondent did not attend and was not represented
____________________
Crown Copyright ©
- LORD JUSTICE ROBERT WALKER: Last Monday, 9 July, there was listed before me an application for permission to appeal from an order of Neuberger J made on 8 June 2000. Mr Hoath, the applicant, has made many applications both to the Tunbridge Wells County Court and to this court since he was made bankrupt in 1991. He is still an undischarged bankrupt because of an order made under section 279(3) of the Insolvency Act 1986 due to his failure to attend for his public examination under section 290.
- On recent occasions Mr Hoath been represented by Mr Charity, a distinguished solicitor, who offers his services on a pro bono basis through the Romford Independent Legal Advice Centre, to which I will refer to by its acronym "RILAC". Mr Hoath did not attend court on 9 July. Counsel did attend (as directed by Jonathan Parker LJ when he adjourned the application) on behalf of the Official Receiver and on behalf of Mr Hoath's former wife. On that occasion counsel informed me that Mr Hoath had either gone to hospital or had been taken to hospital; I cannot recall which form of words they used. They had no further information about the reason for his admission to hospital or about his condition.
- As far as my own inquiries have ascertained, on Monday 9 July the Civil Appeals Office had not received any communication from Mr Hoath either direct or by RILAC, nor had they then received any medical certificate. As far as I know, they have still not received any medical certificate but I accept all that Mr Charity tells me about a medical certificate having been transmitted by fax last Friday. Mr Charity has explained to me that Mr Hoath saw his medical practitioner last Friday when he was suffering from internal bleeding, and that he was advised that he should be admitted to hospital as soon as possible. However, it was not possible to admit him until last Monday, 9 July.
- It is not possible, nor necessary, to go further into attempting to follow the unfortunate sequence of events. On 9 July, as a case management decision, I decided that the right course was to proceed with the hearing. My reasons for that decision, in roughly ascending order of importance, were (i) that counsel were instructed and present; (ii) that no application, however informal, for an adjournment had, so far as I knew, been made; (iii) that there was an order for possession of Mr Hoath's house and land at Crowborough in East Sussex due to be executed in the near future (that order for possession has already been the subject of a great deal of litigation); (iv) that the application before me was an application for a second tier appeal which, under section 55 of the Administration of Justice Act 1999, can be entertained by the Court of Appeal only in a case which raises an important point of principle or practice or for some other compelling reason; and (v) most importantly, that it appeared to me that the prospects for an appeal were, unhappily, quite hopeless.
- The whole matter had been very carefully and sympathetically covered in a long judgment of Neuberger J, who rightly referred to the whole matter as "a tragedy". I gave a judgment at some length on 9 July and there is no point in repeating it now. Mr Charity will be able to obtain the transcript in due course if he wishes to do so. The essential theme was that it was not correct to say that the points raised before Neuberger J, and in the application for permission for a second appeal, had not previously been considered by the court and had been ignored by the court. On the contrary, those points were considered by the Court of Appeal as long ago as 1995.
- The two points which I had in mind when considering the application on Monday were, first, the point taken by Mr Charity this afternoon that at least some of the bills on which default judgment was obtained against Mr Hoath were interim bills on which the solicitors could not sue by reason of section 69(2) of the Solicitors Act 1974. The second point was a point as to service of process, which was effected by leaving process on the doorstep of the house at a time when Mr Hoath, who was at that time an international lorry driver as well as a farmer, was abroad on business. Mr Charity adds to those two points that the default judgment was also obtained prematurely by some 11 days and on the basis of a certificate from the solicitors which he says was false.
- As I have already indicated, I have huge sympathy with the human tragedy in which Mr Hoath now finds himself. However, it appears to me that the Court of Appeal was right as long ago as 1995 in saying that these were points which, if they were to be taken, should have been taken in 1991 at the time when the default judgment was obtained and when not one but two statutory demands (the first of which was held to be defective) were served on him. It is simply not realistic to think that this court should in 2001 go against what the Court of Appeal said in 1995 in relation to action which should have been taken in 1991.
- I am asked on this application to reinstate the appeal in order that a re-hearing can take place with Mr Hoath as well as Mr Charity present. If I were to take that course, it would serve no useful purpose. It would only prolong the agony, and agony is not too strong a word to describe the imminent eviction of Mr Hoath from his family home and farm.
- For these reasons, I have come to the conclusion that I cannot reinstate this appeal and the application is dismissed.