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 WOOLWICH COUNTY COURT
(His Honour Judge Welchman)

		Royal Courts of Justice Strand London WC2 Friday, 20th July 2001

Friday, 20th July 2001

1. LORD JUSTICE PETER GIBSON: By our judgments this court decided that at least a purpose, objectively ascertained, of the loan was the repayment of the arrears on the prior Leeds mortgage (see paragraphs 54, 68 and 71 of the judgments) and that the case should not be remitted to the County Court for further evidence of the Paynes' subjective intention. Mr Hodgkinson, having seen the draft judgments which were made available to him, seeks to reopen this point. He says that there is a risk of injustice. He says that the issue as to what was the intention of the Paynes in obtaining the loan from Watchtower was not a matter that was satisfactorily canvassed in the court below. He says that Watchtower did not take the point that one looked at the application form to ascertain the intention. He says that he understood in the exchanges with this court in the course of the argument that this court was concerned only with the subjective intention of the Paynes and that the question of objective intention was therefore not of importance. He goes so far as to say that there would be a breach of natural justice if the Paynes are not allowed to put in further evidence. Further, he points out that the matter is going back to the county court, which has yet to deal with the question of whether the insurance premium is part of the total charge for credit. He says that there will be an application for further documents to be disclosed and that that may well reveal documents of materiality to the issue of intention.
2. To my mind there are several objections to the course which he proposes. First, the decision of Judge Welchman was given without hearing oral evidence. There was evidence for the Paynes in the form of witness statements from Mr Payne. There was no objection taken by the Paynes that the matter was being dealt with without oral evidence. The exchanges with counsel (which have been put before us by Mr Hodgkinson) of what took place in front of the judge below show that Mr Giles (for Watchtower) made clear that it was a purpose of the loan that the Leeds arrears should be repaid. I do not think that at this late stage it would be right that the matter should go back to square one, as it were, and that the case should restart with oral evidence as well as further documents to be considered by the county court judge.
3. Second, Clarke LJ and I both acknowledged in our judgments that at one time we were attracted to the idea of a remission on this point. But I believe that all the points which I take in explaining in paragraph 54 why there should be no remission were put to counsel by me in the course of argument. Counsel should therefore not have been taken by surprise by the conclusion which we reached that intention must be ascertained objectively.
4. Third, the procedure whereby the court makes available the draft judgments to counsel in advance of handing down the judgments was explained in the Practice Statement (Supreme Court Judgments) [1998] 1 WLR 825, paragraph 2. There it was said that the time at which copies of the judgment were being made available was being brought forward 24 hours in order to enable the parties' legal advisers to submit any written suggestions to the judge about typing errors, wrong references and other minor corrections of that kind in good time, so that, if the judge thinks fit, the judgment can be corrected before it is handed down formally in court. Further, in Prudential Assurance Company Ltd v McBains Cooper [2000] 1 WLR 2000 at page 2008 Brooke LJ, giving the judgment of this court, added that a further purpose was to enable the parties' lawyers to have time to consider and agree the terms of any consequential orders they might invite the court to make. In Royal Brompton Hospital NHS Trust v Hammond, a decision of this court on 23rd May 2001, it was said by Aldous LJ, giving the judgment of the court, that the parties must place before the court at the hearing of the appeal the submissions that they wish to rely on, and it would only be in an exceptional case, or for strong reasons, that they should be allowed to reopen arguments after the process of delivering judgment had been initiated. He said that it must be borne in mind that the practice of handing down judgments was not adopted to encourage or facilitate the reopening of issues that were argued. That, in my judgment, is in point in the present application.
5. For all these reasons, I do not think that this is a case where we should go back on what we provisionally stated in our judgments.
6. Accordingly, for my part I would refuse this application.
7. LORD JUSTICE CLARKE: I agree.
8. MR JUSTICE MAURICE KAY: I also agree.
Order: Application refused.