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 THE CENTRAL LONDON COUNTY COURT
(JUDGE LEVY Q.C.)

		Royal Courts of Justice Strand London WC2 Wednesday, 18th July 2001

Wednesday, 18th July 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal by Mrs. Levy Wiciejowska. The circumstances out of which this application arises were no doubt distressing for all the parties involved, and feelings do appear to have been highly engaged in the resulting litigation. It is a sad story of a failed business enterprise.
2. Mrs. Wiciejowska and her sister, back in the first half of 1999, had identified some empty and run-down premises in Golders Green which they thought would be suitable for a kosher restaurant. They set about negotiating with the landlords and obtained a lease without payment of any premium on a rent holiday for six months; but there was a rent deposit of £3,000, and also a payment in advance of the first rent of £6,000. Together with friends who assisted them (so far as the evidence appears to go, without payment) Mrs. Wiciejowska and her sister set about renovating the premises and also buying in the equipment that they would need for a restaurant.
3. By June 1999, however, Mrs. Wiciejowska was having doubts about her ability to carry through the project to completion. In particular, she doubted her experience and ability to run the restaurant without help. It may be that this change of mind led to or arose out of some disagreement with her sister, which is referred to in the evidence and which Mrs. Wiciejowska has mentioned to me this morning. But in any event Mrs. Wiciejowska and her sister decided to see if they could either sell the lease and recoup their investment or else find assistance in the form of a manager or something similar.
4. There followed an introduction to a Mr. Hart. The effect of that introduction, as was found by the judge below (his Honour Judge Dennis Levy Q.C.), was that Mrs. Wiciejowska entered into a partnership with Mrs. Hart, the wife of Mr. Hart. That is or was a point of dispute before the judge, Mrs. Wiciejowska denying that the relationship was one of partnership at all, let alone a partnership with Mrs. Hart as distinct from Mr. Hart. Mrs. Wiciejowska's attitude is that she merely employed Mr. Hart as a manager.
5. Be that as it may, together with Mr. and Mrs. Hart, in the autumn of 1999 Mrs. Wiciejowska set about the further renovation and equipping of the restaurant. The extent of Mrs. Wiciejowska's involvement in those further renovations and equipping of the restaurant was disputed at the trial below, but there was detailed evidence of it in the evidence given by Mr. and Mrs. Hart.
6. In due course, in about October 1999 the restaurant opened for business. But unfortunately, after six weeks, during which relations between Mrs. Wiciejowska and the Harts became increasingly strained, the restaurant was closed down in November 1999 and has never re-opened. The partnership was dissolved. There were proceedings in the Chancery Division relating to the dissolution of the partnership and the protection of the property, but ultimately the question of who owed what to whom as between Mrs. Hart and Mrs. Wiciejowska was sent off for trial at the Central London County Court. Thus it was that these proceedings came before Judge Levy.
7. In his judgment of 13th March 2001 Judge Levy, having heard the witnesses, and in particular Mrs. Wiciejowska for her side and on the other side Mr. and Mrs. Hart and their ex-solicitor Mr. Gordon (who had acted for both parties in the transaction), decided that he very much preferred the evidence of the Harts and in particular Mr. Gordon, whom he viewed as an independent witness, over that of Mrs. Wiciejowska. Indeed he was not prepared to accept the evidence of Mrs. Wiciejowska, save to the extent that it was on a point on which the parties were agreed or it was otherwise supported by evidence.
8. The essence of the case before Judge Levy was a claim by Mrs. Hart based upon a loan agreement of 4th October 1999 and/or an amendment to that loan agreement made a few weeks later. Judge Levy found the amended loan agreement to have been executed, even though a copy of it had not survived. Nevertheless, the original loan agreement of 4th October 1999 has survived, executed by both parties, and was before the court. Under that agreement, which was drawn up by Mr. Gordon for both parties, it was acknowledged that Mrs. Hart had paid into the business nearly £39,000 and that Mrs. Wiciejowska had agreed to repay to Mrs. Hart 50% of that sum over a period of a year beginning on 10th October 1999 by way of weekly payments of £373.91. That loan agreement was signed by both ladies. The amended loan agreement (of which drafts exist but not, as I say, the executed form) was for a slightly higher sum, some £41,000-odd in total, half of which, amounting to just over £20,590, led to an increased weekly payment of £395.97. That amended agreement reflected certain further payments in respect of the restaurant made by or on behalf of Mrs. Hart.
9. That loan agreement of 4th October 1999, executed by Mrs. Wiciejowska, together with one other document, were the crucial documents in the case. The other document was an assignment of the lease and good will of the restaurant at 119 Golders Green Road. It was executed by Mrs. Wiciejowska and under it, in consideration for a payment of £8,000 by Mrs. Hart to Mrs. Wiciejowska, Mrs. Wiciejowska assigned to Mrs. Hart and herself in equal shares the lease and good will of the business. That was another document which was drafted for the parties by Mr. Gordon.
10. There was evidence before the judge that the £8,000 consideration mentioned in the assignment represented half of a figure of £16,000 which the parties had agreed represented the value of what Mrs. Wiciejowska had put into the business before the arrival of the Harts on the scene. That £16,000 seems to have been reflected in part by the advance on rent of £6,000, by the deposit of £3,000 and for the balance of expenses incurred in renovating the premises.
11. The attitude of Mrs. Wiciejowska to those two documents, the loan agreement and the assignment, both of which bear her signature, has varied in the course of the case. In her pleaded defence, Mrs. Wiciejowska does not mention the assignment but admits that loan agreement. Her defence was to this effect, that there had been an oral agreement under which Mr. Hart had agreed to pay £20,000 as a 50% purchase into the venture in circumstances where Mrs. Wiciejowska was demanding £40,000 for an outright sale, and that the sums due under the loan agreement were to be set off against that £20,000. Subsequently, in the course of the proceedings it appears that Mrs. Wiciejowska denied signing the assignment and the loan agreement at all, claiming them to be forgeries. Her position about this seems to have varied. She has told me this morning again that she never signed anything at all apart from a bank mandate. However, the position in the document which she put before the court below, a document in the form of part witness statement, part submissions, was rather to the effect that she had signed the document – or rather, if she had signed the document, her signature had been obtained by fraud, undue influence and threats. That ultimately appears to have been the unpleaded case that she addressed to the court at trial and in respect of which she gave evidence on that occasion.
12. That unpleaded case the judge found to be "manifestly untrue and unbelievable". He heard all witnesses and in my judgment he was perfectly entitled to come to that conclusion. I have found nothing in the papers, or in the additional papers which Mrs. Wiciejowska has put before this court for the purposes of her application, which in any way causes me to doubt that judgment. On the contrary, the vouchers which Mrs. Wiciejowska has put before me (but which I think were not before the court below) in respect of her and her sister's original expenses come to no more than about £6,700, although Mrs. Wiciejowska says that there were three other vouchers totalling some £3,700 which she no longer has because they were given to Mr. Hart.
13. At the end of the day, even the £8,000 recorded in the assignment was not paid to Mrs. Wiciejowska because the evidence before the judge was that, as a result of the sale for her own benefit of various items of equipment which Mrs. Wiciejowska had bought before the Harts came on the scene, the valuation of £16,000 was reduced to £12,000 and a sum of only £6,000 was paid to Mrs. Wiciejowska. It is admitted that that £6,000 was paid to Mrs. Wiciejowska, but she says, and she said before the court below, that that was simply by way of loan to assist her in meeting the extra expenses which renovations and the equipping of the restaurant would entail.
14. As I say, that was the case on her part that was before the judge, but rejected by him, and I see nothing in the documents which could be said to fault his decision.
15. I have gone into the merits of this dispute in a little detail because Mrs. Wiciejowska was at trial and is today in the difficult and unfortunate position of being a litigant in person. Also, her difficulties at trial were increased by the fact that a month before trial her solicitors, Zeckler & Co, formally came off the record. She was therefore put in a position of having to apply to Judge Levy at a very late date to adjourn the trial. Indeed, she had to undertake the trial without having in her possession the papers which had only just been released by her former solicitors and which were with the Royal Courts of Justice Citizens' Advice Bureau only shortly before trial and which the advice bureau had not yet been able to copy on her behalf.
16. It is because of those difficulties that I have paid particular attention to the merits of this case, as I see them from the judgment and from the documents, and also in particular to the further documents which Mrs. Wiciejowska has put before me for the purposes of this application and which her notice of appeal claims to be conclusive in her favour, although unfortunately for her I find that they are in no way so.
17. In these circumstances, Mrs. Wiciejowska's first and primary ground of appeal for the purposes of this application was that her application to adjourn ought to have been granted and that, in the circumstances where it was not and where she was a litigant in person without representation and indeed without her own papers, she was in effect deprived of a fair trial. That is a submission which any court will consider carefully and anxiously. I can assure Mrs. Wiciejowska that I have done so. Nevertheless, the facts are these.
18. The trial started on 12th March and ended on 13th March 2001. The trial date had been fixed on 11th November 2000. Although there are matters of dispute between Mrs. Wiciejowska and her former solicitors, Zeckler & Co., it appears to be the case that from as early a date as May 2000 her solicitors were complaining of being unable to get instructions from her, and certainly by December 2000 they were threatening to come off the record. As I mentioned, on 13th February 2001 they formally did so. That was still one month before trial. There were difficulties over legal aid and apparently Mrs. Wiciejowska's legal aid certificate had been withdrawn or lapsed. But be that as it may, it was not before 5th March, just a week before trial, that Mrs. Wiciejowska first said that she was in need of an adjournment, saying that she needed to find new solicitors. It was not until 9th March, just a few days before trial and I think on the Friday before the trial began, that Mrs. Wiciejowska approached the Royal Courts of Justice advice bureau with the result which I have already described.
19. All these matters were before Judge Levy, to whom an application to adjourn was made on 12th March, just before the commencement of the trial. He considered these matters carefully but nevertheless concluded that Mrs. Wiciejowska had had ample notice of the difficulties that she was having with her solicitors, whosoever's fault they were, and the difficulties that she could expect as a litigant in person. He considered in the end that it would be an injustice to the claimant to adjourn the trial.
20. Mrs. Wiciejowska was assisted at the trial by her daughter, who perhaps speaks English even better than Mrs. Wiciejowska. But having heard Mrs. Wiciejowska this morning, I can say that, although English is not her native language, she is perfectly competent in it. I therefore have to ask myself in these circumstances whether there is a realistic prospect of success on appeal or some other compelling reason which should cause me to grant permission to appeal.
21. On the question of the adjournment, I can see no real prospect of success of overturning on appeal the judge's decision, which was one in his discretion, to continue with the trial. These decisions are always difficult, particularly in the case of a litigant in person. But in my judgment, I see no real prospect of success in faulting the judge's decision. If nevertheless I felt that on the merits of the case there was a real prospect of Mrs. Wiciejowska's success on appeal (for her second main ground of appeal is that the judge got the merits of the case completely wrong), then even so I would consider that the case for permission to appeal had been made out, that there was compelling reason to give such permission and that there was, on the grounds, a real prospect of success on the merits. However, for the reasons which I have already given, I can see no real prospect of success on the merits and thus no other compelling reason to give permission to appeal.
22. In my judgment, the documents which Mrs. Wiciejowska signed and the preference of the judge for the evidence given on behalf of Mrs. Hart at trial below, his rejection of Mrs. Wiciejowska's evidence and her credibility, and in general the detailed evidential support which I have read in the papers for the claimant's case as compared with the generally inconsistent and unparticularised case made by Mrs. Wiciejowska leads me to the firm conclusion that, however unfortunate this is for Mrs. Wiciejowska, this application must be rejected.
ORDER: Application refused. (ORDER NOT PART OF APPROVED JUDGMENT)