England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Wednesday, 20th June 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal from the judgment of His Honour Judge Poulton sitting in the Canterbury County Court given on 13th November 2000. His Honour Judge Poulton ordered that the claim be dismissed, the claimant's application for permission to appeal be refused and the claimant pay the defendants' costs. The appellant's notice was out of time. However, that would not have prevented me from granting permission if the appeal was otherwise meritorious, because it was only a relatively short period and he was in any event a litigant acting in person, who I am satisfied has done his best to put the matter before the court as speedily as he can. I deal with this matter on its merits as an application for permission to appeal.
2. The facts were set out fully in the judgment of His Honour Judge Poulton. The claimant sought damages for negligence against his former solicitors and their employee, Mr. Ludlow. The matter arose out of the construction and sale of two houses on unregistered land, Nos 110 and 110A Hythe Road, Dymchurch, which was jointly owned by the claimant and his sister, Mrs Audrey Ball. In 1987 the claimant and his sister made a written agreement that she would sell to him both her share in the property and the share she had agreed to buy from a Mrs Olive Webber. The claimant paid her £2,000 and agreed to pay £8,000 after selling the first property and £10,000 after selling the second. In order to raise the money needed to construct the houses, the claimant's wife mortgaged the matrimonial home to Barclays Bank in 1988. The claimant then instructed the defendant solicitors and stated that the £18,000 owed to his sister was to be paid from the proceeds of the first house to be built.
3. In March 1991 the claimant approached the National Westminster Bank for a mortgage to provide further finance for the building work. The claimant's case is that he intended only the property, No 110 Hythe Road, to be charged to the bank, and that No 110A, representing as it did his sister's share, should not be mortgaged. He states that the first defendant received clear instructions from him concerning this but that his instructions were disregarded and, through his solicitors' negligence, both properties were charged to the National Westminster. The mortgage between the National Westminster and both the claimant and Mrs Ball, concluded on 15th August 1991, described the property as No 110 Hythe Road but included both Nos 110 and 110A. The defendant solicitors additionally gave an undertaking to the National Westminster which prioritised them as against Barclays, whose security was against the separate matrimonial home owned by Mrs Arkell.
4. The house at No 110A was marketed during 1989 for £110,000. If it had been sold then, the subsequent problems would not have arisen. However, as a result of the property crash, the asking price had to be reduced again and again, until in March 1994 it was sold for £68,000. By this time the debts owed to the National Westminster and the other creditors exceeded this amount. On 27th April 1994 the claimant wrote to the first defendant, stating that the National Westminster had known that the charge should only cover No 110 and not No 110A, and that the National Westminster manager had assured him that there would not be a problem obtaining any appropriate relief, if it was necessary, when the time came to sell No 110A on completion. On 6th May 1994 the claimant wrote again to the first defendant, suggesting that they check with the National Westminster so they would effect the release of their charge of the land on which 110A had been built as was promised, if indeed it was necessary. On 9th May 1994 the first defendant replied, emphasizing that the National Westminster did indeed have a valid charge over the whole property. On 8th June 1994 the National Westminster, which by now was owed over £90,000, agreed to release the charge on No 110A and allow its sale for £68,000. However, the proceeds of the sale were to be divided up, with the National Westminster receiving £51,500, Mrs Ball's estate receiving £8,000, and two other creditors receiving £3,000 and £1,000 respectively.
5. The claimant's complaint is that, as the National Westminster had a charge over No 110A, they were able to insist on being repaid when he wished to use the money to repay Barclays, which debt he was anxious to discharge. If he had been able to discharge that debt he would have been able to raise further funding to complete No 110, and in due course everyone would have been paid and, notwithstanding the property slump, he would have suffered no loss.
6. The claimant complained to the banking ombudsman, stating that the National Westminster knew that he only intended them to be given a mortgage of No 110 and not No 110A. The ombudsman considered the matter and ruled against the claimant. In the court below the claimant began proceedings against the defendants on 29th May 1997 claiming damages for professional negligence. In his particulars of claim he stated that the first defendant gave an undertaking in 1989 that the debt to Barclays would be cleared as a first priority from the proceeds of sale of No 110A. He stated that he explained, both to the National Westminster and the first defendant, that the National Westminster's charge was not to include No 110A but that the first defendant negligently failed to warn him that the charge had been drawn in such a way as to cover both properties. The claimant further claimed that the result of this was that Mrs Arkell lost £42,000 in accumulated interest to Barclays and that the development project at No 110 was ruined, losing him potential profit. In their defence the defendants denied negligence, denied the claimant had suffered any loss and pleaded the Limitation Act.
7. Following the claimant's failure to ask for a trial date the matter was automatically struck out. That was confirmed on 8th March 2000 by District Judge Morling sitting in the Canterbury County Court. The claimant appealed. On 16th June 2000 His Honour Judge Poulton allowed the appeal and reinstated the case. Thus it was that it came to be heard over two days before the same judge on 12th and 13th November. In his judgment His Honour Judge Poulton dismissed the claim. He concluded, having looked at the correspondence in detail and the other material, that the letters did not show any negligence on the part of the defendants. Secondly, he found that, as the alleged negligence took place in 1989, the primary limitation period expired in 1995. The claimant relied upon the extended limitation of three years from his date of knowledge but admitted under cross-examination that he was aware from the letter of 9th May 1994 that the mortgage did cover No 110A as well as No 110. In fact, the letter of 27th April 1994 showed that he was aware of it from that date at the latest. Proceedings were not issued until the latter part of May 1997 and the judge concluded that the action was statute barred. Finally, the judge concluded that there was no material before him upon which he could have found that the claimant had suffered any relevant loss, even if the court had reached a different conclusion about negligence. Judge Poulton held that although the question was academic, he was not persuaded that simply because the claimant had to pay one bank rather than the other, that this had caused a loss for which the defendants could be liable. The claimant sought (from Judge Poulton) permission to appeal but he concluded that this was not a case for permission.
8. The grounds of appeal raised by the claimant in his appellant's notice and skeleton argument, to which he has added in addressing the court this afternoon, effectively cover three separate areas. First, procedural unfairness. It is said that the judge allowed defence counsel to make a prepared opening which was biased towards the defendants. The claimant had not himself prepared an opening and, perhaps most significantly, the judge refused to accept his prepared trial bundle of documents, saying that, as the matter was dealt with by witness statements, his case was covered by his witness statement. Further complaint is made that when counsel representing the defendants cross-examined the claimant, she ignored his evidence which was critical of the defendants and concentrated on the limitation issue. It is said, however, that when the claimant attempted to cross-examine the first defendant, the judge stopped him putting the essential elements of his case and restricted him to asking questions. As a result, he never did have a proper opportunity to put his case. He contends that, in those circumstances, he was deprived of his right to a fair trial under the Human Rights Act 1998 and the European Convention of Human Rights.
9. The second area of complaint is that the judge failed to appreciate exactly what the claimant's case was. It is said that the judge was misled by fabrication and falsehood by the defendants and misunderstood the true nature of the claimant's case. The judge accepted the defendants' scenario that the claimant was caught out by the property slump of 1989/1990 but that is not what the case was about at all. It was that the defendants had acted without his knowledge, authority or consent and in defiance of his instructions, failing to give him proper advice or warnings. The judge's finding that there was a good Limitation Act defence was based on an arguable date of knowledge on which the claimant had been given definitive advice by his previous solicitors and counsel. Judge Poulton had held that there was no loss suffered but failed to consider that the defendants' negligence prevented the claimant from putting alternative options into practice.
10. The third area is to complain about the unreliability of the defendants' evidence. It is said that the first defendant admitted telling Barclays that they would be paid as a first priority from the proceeds of sale but denied that this was an undertaking. However, in a letter dated 3rd November 1992 he himself had described it as an undertaking. By later agreeing to hold the sale proceeds for the National Westminster the defendants perverted the claimant's instructions. Other statements given by the first defendant, it is said, were equally unreliable and unsupported by documentation and should have been rejected by the judge. On the other hand, it is said that the claimant had documents saying that he had received no legal advice from the first defendant and had not been entitled to put those before the court.
11. Those then are the matters that are raised. I have to consider whether there is any prospect that the Court of Appeal would intervene in this matter.
12. It should be said at once, bearing in mind the litigant is in person, that what the Court of Appeal will not do is to try to re-decide the case itself, acting on the evidence that was put before the judge. In a case of this kind, where there was manifestly different evidence on both sides, it would be wholly unfair for a court that did not hear that evidence to think that it could do better than the judge who had heard it. It is necessary, therefore, for there to be demonstrated that there was some failing at the court below.
13. The matters of procedural unfairness about which complaint are made are, when one analyses them at the end of the day, the result of the normal and proper procedure being followed. The one that has caused me most concern is the suggestion that the applicant was prevented from putting documents before the court that he wanted to put before it. In one sense that may be a proper decision in that, if he was going to refer to documents and wished them to form a part of his case, he should have referred to them in his statement and they would then have become a part of his evidence. Equally, if he wanted to put them in, as seems to have been their principal purpose, to show that the evidence of the first defendant was wrong, then he could cross-examine about those matters. Neither of those steps did he take. I do not want to be thought to be critical of a person acting in person for getting that wrong. He clearly could and should have done that. The question is, ought the judge to have done more to assist him to present his case in that respect?
14. When I came to consider that question I asked the applicant to take me through the various documents so that I could assess for myself whether it was likely that, if those documents had been put before the judge, they would have had any impact upon his ultimate decision. Having considered them with care and been taken through them by the applicant, it does not seem to me that there was the remotest chance that any of those documents would in fact have altered the view of the judge. There was nothing that could be seen as being of critical importance amongst the documents. Insofar as, for example, an error on the part of the first defendant in a letter is referred to (and clearly acknowledged by him in a subsequent letter), it has to be borne in mind that the letter was being written six years after the events had taken place and, not surprisingly, not every detail would be immediately to the mind of any person who had been involved. Once he saw further documents and realised he was wrong, he readily acknowledged it, but that does not seem to me the sort of point that could possibly have caused a judge who reached the clear conclusion that this judge did to have come to a different view on the matter. I therefore consider that the matters relating to procedural unfairness cannot be sustained on an appeal. There is nothing which would give rise to a conclusion that there was an unfair trial or that the appellant was denied an opportunity to put forward matters. He may not have appreciated the need to deal with them in a particular way but at the end of the day a judge, with a litigant in person on one side and a represented litigant on the other side, has the difficult task of being fair to both sides. I do not think that it can be argued that he got that balance wrong.
15. As to the suggested failure to appreciate the claimant's case, having read the judgment I have no doubt at all that the judge did understand the claimant's case. The trouble, from the claimant's point of view, was that he was not accepted to have put forward a correct case. The defendants, insofar as they gave evidence, were believed in relation to matters. That is not because the judge did not understand that he had to choose between two but because he was left, as judges invariably are when evidence differs, having to decide who was right and who was wrong. He was entitled to reach the conclusion that he did. It did not come from any failure to understand the true nature of the claimant's case.
16. The matters of unreliability relied upon were matters that were put before the judge and were matters that the judge clearly had to and did take into account. The judge found that the written evidence did not support the claimant's allegations. I have come to the conclusion that nothing that has now been raised by the claimant would entitle a Court of Appeal to interfere with what was a simple and straightforward finding of fact.
17. I well understand that Mr. Arkell thinks that the judge got it wrong in his conclusions and failed to appreciate where the truth lay in this matter. Litigants who lose often feel that that is so. That does not entitle the Court of Appeal to interfere unless it can be shown in some way that the judge erred in the procedure and process by way he came to his conclusion. Nothing that has been put forward before me enables me to think it likely that the Court of Appeal could be persuaded that he did err in that sort of way. It follows from that that I have no option but to refuse the applicant permission to appeal. I make it clear that Mr. Arkell has put the matters before the court today very courteously and helpfully. He has endeavoured to raise the matters he wishes. I cannot be critical of his approach in doing so, but I regret that his mere courtesy and the way in which he puts it cannot be a basis for me to allow him to go further when there is no merit in the application.
Order: Application refused.