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 APPEAL
AN EXTENSION OF TIME AND A STAY OF EXECUTION
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Thursday, 19th July 2001

1. LORD JUSTICE MUMMERY: I will now give judgment in the case of Mrs Oakes v Mr Simms. Originally there were two applications before the court on 21st May when this matter was adjourned on the application of Mr Ashton, who acts on behalf of Mrs Oakes, for an adjournment in order to read the papers and to give advice. The same procedure was followed as in the case of MrOakes. Mr Ashton gave Advice (No. 3) signed by Mrs Oakes, waiving privilege in it. That advice has been used for the basis of submissions to the court in support of the only surviving application.
2. The only application which survives is for permission to appeal, if permission is required, and for an extension of time, if an extension is required, from an order made by Mr Justice Rattee on 25th July 1997. Mrs Oakes' position on that is that the notice of appeal was entered on 8th August 1997, so that it is unnecessary to make either of these applications. If, however, the court found that the order was not entered on that date or was otherwise out of time an application is made for an extension of time.
3. The position taken by Mr Barnard, counsel for Mr Simms, is that no appeal was ever properly constituted. I can summarise his position by quoting from a clear and concise statement from paragraph 5 of his skeleton argument where he says under the heading Appeal against the order of Rattee J dated 25.07.97:

"Mr and Mrs Oakes claim that the Court of Appeal has lost her Notice of Appeal. However, having made enquiries with the civil appeals office, so far as the Trustee's solicitor is aware, Mrs Oakes' appeal was never properly constituted and this is why the appeal never proceeded. 3½ years have elapsed since the order of Rattee J and a new appeal would be significantly out of time."

4. He goes on to deal with the relevant considerations which would affect the discretion of the court in relation to any application for permission or for an extension of time.
5. During the course of the hearing Mr Barnard also produced further documents relating to his submission. This afternoon he produced, first, an affidavit made by Mr Darby on 15th September 1999. I refer to paragraph 3 of the affidavit where Mr Darby says this (Mr Darby is the solicitor acting for Mr Simms):

"It was understood that Mr and Mrs Oakes had lodged an appeal against that order [of Mr Justice Rattee of 25th July setting aside a transaction to which I shall refer in a moment] with the Court of Appeal Civil Appeals Office. I have recently established with the Court of Appeal that that is not the case, even though Mr Oakes did supply to me a copy of the Notice of Appeal (see the letter from the Court of Appeal of 10th August 1999 ..... )."

6. I next refer to that letter which was exhibited. It is a letter from a lawyer in the Civil Appeals Office, Mrs P C Linsey, dated 10th August 1999, headed Arthur Oakes (in Bankruptcy). The letter deals with a number of cases which are not Mrs Oakes' case, and goes on to deal with the appeal by Mrs Oakes against the decision of Mr Justice Rattee in the final sentence saying,

"I can confirm that there is no record of any appeal against the decision given by Mr Justice Rattee on 25th July 1997 ..... "

7. Mr Barnard finally produced an application notice dated 24th January 2000. That relates to an application for a stay of execution in relation to the property that was the subject of Mr Justice Rattee's order. Mr Barnard points to the fact that Mr Justice Rattee had made an order on 4th January 2000 on Mrs Oakes' application for a stay until the Court of Appeal had heard the appeal from his order of 25th July 1997. Mr Justice Rattee made an order on 4th January 2000 standing over that application until 1st February, directing that Mrs Oakes should give a full account of the history, status and the progress of any appeal from his order of 25th July 1997 and exhibit any correspondence between herself and/or her solicitors and the Court of Appeal. The document dated 24th January 2000 is headed Application Notice and contains a statement of evidence in Part C, on which it is said that Mrs Oakes would wish to rely. Mr Barnard points out that there is no mention in any part of that section of the application notice of the matters which Mr Justice Rattee had directed should be dealt with concerning the progress of the appeal.
8. What happened then was that the matter came before Mr Justice Pumfrey on 1st February 2000. An application for a stay of Mr Justice Rattee's order of 25th July 1997 was refused. Indemnity costs were ordered against Mrs Oakes. Initially there was an application for permission to appeal against that order, but that has not been pursued. As explained in Mr Ashton's Advice (No. 3), the more appropriate course is for an application to be made to Mr Justice Pumfrey for an amendment to be made to the form of the order for costs, as to which I make no comment.
9. In my judgment, it is unnecessary to examine in detail the proceedings which gave rise to the judgment of Mr Justice Rattee, against which Mrs Oakes is either appealing or seeks to appeal. All it is necessary to say is that it concerned an application by the trustee, Mr Simms, to set aside the transfer of a property at St. Wilfred's Road in Doncaster. That transfer was made by Mr Oakes into the name of Mrs Oakes. The trustee contended, and the judge found, that it was a transaction at an undervalue. He set it aside under the Insolvency Act 1986, holding that, contrary to her contentions, she had no beneficial interest in the property.
10. For reasons I am about to explain, it is unnecessary to examine the prospects of success on that appeal. The substantial dispute today is whether an appeal had been entered or not. I have referred to the submissions of Mr Barnard. I have come to the conclusion that the just order to make would be to declare that Mrs Oakes' appeal should proceed on the footing that it was entered on 8th August 1997.
11. The position on the documents, other than those I have referred to, produced by Mr Barnard is this. There is no doubt that a document headed Notice of Appeal, dated 8th August 1997, was produced at that time. It is agreed that a copy of it was sent at that time and received by, or received on behalf of, Mr Simms. I refer, for example, to Mr Barnard's own chronology where he says:

"8th August 1997. Appeal of Mrs Oakes against the order of Mr Justice Rattee of 25th July 1997."

12. He says, however, that there was no evidence that it was ever properly issued in the Civil Appeals Office.
13. There is some evidence to the contrary. First, there is a letter written on 3rd November 1999 by Mr and Mrs Oakes for the attention of Mrs P C Linsey in the Civil Appeals Office. The letter is headed Brenda Oakes v Simms. It then reads:

"See Attached Affidavit and Exhibits, Brenda Oakes.

NOTE: (i) The Notice of Appeal Exhibit BO7. This was filed with the Court August 1997.

(A) The Appeal was within time, of the order of Rattee J.

(B) Under the then rules this was a Notice of Appeal, not a Leave to Appeal Application and a PA number applied.

(ii) The Appeal as you note is amended from a joint application to my wife alone. This followed a call from your predecessor in August 1997 and the Notice of Appeal amended."

14. It is the case, as appears from the Notice of Appeal, thatoriginally at the end it had the name of Arthur Oakes. That has been crossed out and the name of Brenda Oakes has been substituted. The letter goes on:

"(iii) It is plain that that Appeal got lost in the Court of Appeal system.

(A) Note at this time the Court of Appeal systems were in total disarray (a public statement made to that effect) and appeals were taking 1-2 years to process. It was thus not of concern that my wife was not further advised in the matter through 1997 to 1998."

15. There was no reply to that letter.
16. In addition, it is the recollection of Mr Oakes, which has been passed to the Court oninstructions through Mr Ashton that he signed a fee exemption form at the time of issue of the notice of appeal, he then being on income support.
17. In the circumstances which I have described I have formed the conclusion that, as already indicated, the justice of the case requires that the appeal should proceed on the footing that it was entered on 8th August 1997. I should add that this appeal cannot be heard today. Not all of the documents are before the court. The skeleton arguments of Mr Ashton and Mr Barnard have been directed to considerations affecting permission to appeal and extension of time, rather than to the substance of the appeal.
18. All that leaves is an application which Mr Ashton indicated at the end of argument he wished to make that there should be a stay of execution pending the determination of the appeal which will now proceed. A stay is granted.
19. SIR MARTIN NOURSE: I agree with the judgment of my Lord. I also agree that we should make a declaration in the terms proposed by him and grant a stay.
Order: Application allowed with the costs reserved. Stay of execution pending determination of the appeal