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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 >> Lloyds TSB Bank Plc v Bennett & Anor [2001] EWCA Civ 1403 (18 September 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1403.html
Cite as: [2001] EWCA Civ 1403
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Cowell)
Strand London WC2 Tuesday 18th September, 2001 |
||
B e f o r e :
____________________
| LLOYDS TSB BANK PLC | ||
| Claimant/Respondent | ||
| - v - | ||
| (1) BENJAMIN ANDREW BENNETT | ||
| (2) GRO KRISTINA BENNETT | ||
| Defendants/Applicants |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Applicants
THE RESPONDENT did not appear and was not represented
____________________
Crown Copyright ©
- LORD JUSTICE MANTELL: Between 26th and 30th March 2001 at Central London County Court His Honour Judge Cowell entertained a claim by Lloyds TSB Bank for possession of domestic premises, 3 Grosvenor Cottages, which is a prestigious residential property in central London. The claim was made pursuant to a legal charge entered into by the property owners, or at least part owners, a Mr and Mrs Bennett. Mr and Mrs Bennett resisted the bank's claim.
- The central issue of fact was whether the charge was an all monies charge, covering the totality of the Bennetts' indebtedness to the bank as contended for by the bank or whether it was limited to £15,000 as was asserted on behalf of the Bennetts.
- In the event the judge held that it was, as indeed the legal charge itself proclaims, an all monies charge. He therefore found for the bank and made an order for possession. There is no doubt that on the material before him the judge was entitled to reach the conclusion which he did. However, it is said that by refusing an adjournment in circumstances which I shall proceed to explain, the judge denied himself the opportunity of hearing all the material evidence which, had it been available, might have led him to a conclusion different to the one which he reached.
- It is said further that in refusing an adjournment the judge exercised his discretion wrongly and unreasonably. So the Bennetts seek permission to appeal in the hope that they may persuade the Court of Appeal to remit the matter for retrial.
- The judge himself, in what I have taken to be an extempore judgment, sets out the circumstances surrounding his decision not to allow an adjournment. I take the background, therefore, from the judgment. He describes how the action stemmed from events in 1989 and had originally been due for hearing in February 2000 but was then adjourned to October 2000, on which occasion there was a further adjournment on terms which the Bennetts - upon whom the terms were imposed - in due course satisfied. The matter was then listed for hearing on 26th March, and the week before an application was made to a judge other than His Honour Judge Cowell for an adjournment on the basis that Mr Bennett was ill. I interpose to say that at that time it seems he was suffering from very high blood pressure and there did come a time when he was referred to the very distinguished gastroenterologist, Dr Silk. There was a feeling in Mr Silk's mind that there may have been a complication and that the cause of the trouble was not simply hypertension. There were further investigations. In the end Dr Silk came to the conclusion that hypertension was after all the real problem, with all the unhappy consequences that can flow from that condition.
- At all events, on the day when the trial was due to start Mr Bennett was taken into hospital, or so it appears from the judgment. Then during the course of the week, without going into overmuch detail, it seems that Mr Bennett's condition deteriorated to the point where by the end of the week it became necessary for him to undergo heart surgery.
- All that led, so it was transmitted to the judge, to neither Mr Bennett, for obvious reasons, or Mrs Bennett being able to attend at court. The judge who had previously entertained an application for an adjournment had said that it would be sufficient for the purposes of doing justice between the parties if Mrs Bennett were available to give evidence, and no complaint is made as to that ruling or order if that is what it became.
- However, what led to the difficulty in the present case, as further appears from the judgment of His Honour Judge Cowell, is the fact that by reason of her husband's condition Mrs Bennett - so it was said on her behalf, though no evidence was placed before the judge - found it impossible to attend. The judge, according again to his account in the judgment, allowed Mrs Bennett as much latitude as he deemed to be reasonable. He said that he would hear her at any time on the Thursday of the week (he having occupied himself with other matters including the familiarisation with the facts of the case and the documents in the earlier part of the week) or on the Friday even as late as 2 o'clock, the Friday being the last day of the period set aside for the hearing of this action.
- In the event, Mrs Bennett, for whatever reason, did not attend. The reason which was conveyed to the judge through counsel was her feeling that it was inappropriate for her to be anywhere other than at the hospital. The judge, without being unduly sympathetic, in fact he appears to have been somewhat cynical about the reasons for Mrs Bennett's non-attendance, decided that he had allowed sufficient latitude and in the exercise of his discretion refused what was an application then made for a further adjournment.
- That is now the basis of the renewed application for permission to appeal, permission having been refused on paper in the first instance by Jonathan Parker LJ.
- A little more perhaps ought to be said about the background, but not much. The Bennetts together, operating through a number of different companies, were builders and property developers. 2/3 Grosvenor Cottages had been bought with a view to development or refurbishment and resale. There already had been a first charge entered into in favour of the Halifax Building Society. The charge which was entered into in relation to Lloyds Bank was dated 10th April 1989 and on the face of it, as already mentioned, purports to be an all monies charge. It was a charge entered into by the Bennetts with the benefit of the advice of a solicitor.
- The action by the bank was to first enforce the charge on the basis of it being an all monies charge and not limited to £15,000 as contended for by the Bennetts, the Bennetts' case being that in conversations with representatives of the bank that is what had been agreed and they would have pointed and did point in their witness statements to the fact that, even allowing for the uncertain nature of the property market in 1989, the security held by the bank over all their properties was such as to make an all monies charge unnecessary, and indeed to make any further advance beyond £15,000 unnecessary.
- Having refused the application for the adjournment the learned judge, on the basis of the evidence in front of him, had no hesitation in reaching the conclusion that what had been agreed had been an all monies charge and even if the Bennetts themselves had been under some misapprehension, that was not something that could possibly have been known to the bank. He came to the conclusion that even had Mrs Bennett been present, the finding of fact which he eventually reached would have been no different.
- However Miss Michaels, who has presented this renewed application with, if I may be permitted to say so, great restraint and ability, says "who can say at this distance what the decision on the central issue of fact might have been had either Mr or Mrs Bennett been available to give evidence?" The question however for the Court of Appeal would be, as indicated by Jonathan Parker LJ, whether or not it could be said that this was a wrong or unreasonable exercise of the judge's discretion. He came to the conclusion that any such submission would be bound to fail. There would be, in his words, no real chance of success.
- I am afraid I agree with Jonathan Parker LJ. I am far from saying that another judge on another occasion might not have exercised his discretion differently. That, however, is not to say that the judge in these circumstances, having allowed the latitude he did and having nothing directly from Mrs Bennett to explain her absence, was wrong to refuse a further adjournment given the history of this case and the fact as he observed, that there were other cases waiting to be tried which would have to be displaced if he were to accede to the application which Miss Michaels made.
- Accordingly, I have come to the conclusion, in common with the conclusion reached by Jonathan Parker LJ, that this appeal, if it were to proceed, would have no real prospect of succeeding. I, therefore, refuse this renewed application.