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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 >> Wisdom (t/a S & J Property Services) v Silver [2001] EWCA Civ 1408 (29 August 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1408.html
Cite as: [2001] EWCA Civ 1408
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND ON SEA COUNTY COURT
(DISTRICT JUDGE GYPPS)
Strand, London WC2 Wednesday, 29th August 2001 |
||
B e f o r e :
____________________
| S M WISDOM (t/a S & J PROPERTY SERVICES) | Respondent/Claimant | |
| v | ||
| MISS E SILVER | Applicant/Defendant |
____________________
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207-421 4040/0207-404 1400
Fax No: 0207-831 8838
(Official Shorthand Writers to the Court)
The respondent did not attend and was not represented
____________________
Crown Copyright ©
- LORD JUSTICE DYSON: This application for permission to appeal was listed for 10.00 this morning, 29th August. It is now 10.30. Miss Silver has not appeared, nor has she communicated with the court any difficulties preventing her from attending this morning. I propose, therefore, to refuse this application, but having read the papers in some detail, I think it appropriate to say why, subject to anything that Miss Silver might have said, I think that it is inevitable that I would have refused this application in any event.
- This is litigation which has been assigned to the small claims track. The claimant, Mr Wisdom, claims the sum of £511.17, being the balance that he says is due from the defendant of the price payable for the fitting of a replacement boiler at her home, which is a flat at 74 Sutton Court, Southend On Sea, and for the supply of a pump and associated materials. By her defence, dated 28th September 1999, the defendant stated that she had already paid £900, and she denied that she was liable to pay any more. She complained that the claimant had carried out the work incompetently and counterclaimed damages for breach of contract.
- The hearing took place before District Judge Gypps on 10th August 2000. He found that the contract price for the supply and fitting of the boiler was £900 plus VAT, and not, as the defendant contended, £900 inclusive of VAT. He rejected her allegation that the claimant had made a misrepresentation as to what was involved in the work of installing the boiler. He also found that the parties had agreed a price of £266.14 for the supply of the pump and associated parts. The defendant alleged that the claimant damaged the pump installation while he was in the flat. The District Judge dismissed this allegation. He then turned to deal with the defendant's allegations that the claimant's work was defective. He dealt with each complaint and rejected them all. In the result, he awarded the claimant £157.50, being the balance of the contract price for the boiler, and £266.14 for the pump and materials. He also awarded the claimant £50 each for himself and his two witnesses and £150 in respect of the court fees.
- The defendant then applied for an order that the judgment be set aside on the grounds that she had fresh evidence to show that the installation of the boiler was defective. On 10th January 2001 District Judge Hamilton dismissed that application.
- On 6th March it seems that she applied to HHJ Yelton for permission to amend her defence to allege a "sham", and she sought extensive disclosure of documents from the claimant's insurers. According to the judge's judgment, this application was made only a few days before the date fixed for the trial, and he refused it on the grounds that it was too late and was, in any event, speculative in nature. I have found the judge's reference to the imminent trial date somewhat puzzling since the defendant had, by that time, sought permission from HHJ Yelton to appeal out of time the order of District Judge Gypps dated 10th August 2000. However that may be, on 9th May he refused the application for permission to appeal out of time on the grounds that the appeal had no real prospects of success and there were no proper grounds for extending the time for appeal. The defendant did not file her notice of appeal against the decision of District Judge Gypps within 14 days of that decision. She did not file it until some time in January 2001, a delay of about three months. Moreover, she did not file her notice of appeal to this court until 30th March 2001, and that too was out of time, although only by a few days.
- It is not clear to me against which of the decisions the defendant is now seeking permission to appeal, whether it is the refusal by HHJ Yelton, apparently on 6th March, of permission to amend her defence to give disclosure of further documents, or whether it is his refusal, apparently on 9th March, of her application for permission to appeal out of time the order of District Judge Gypps of 10th August 2000. Whichever of these two decisions the defendant now seeks permission to appeal, it seems to me on the papers that she has absolutely no prospects of succeeding. Moreover, she has not demonstrated any reasons why she should be granted the extension of time for appealing which she would require in order to appeal in any event.
- For all these reasons, I would dismiss this application on the merits, but, as I say, I have dismissed it because she has not appeared to make the application.
Wednesday, 29th August 2001