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 HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Jacob)

		Royal Courts of Justice Strand London WC2 Tuesday 9th October, 2001

1. LORD JUSTICE CHADWICK: There is listed before me an application by Mr Dick Chitolie for permission to appeal against an order made on 12 March 2001 by Jacob J in proceedings brought by Mr Chitolie against National Westminster Bank Plc.
2. The application was listed for hearing not before 10.30. It is now 10.40; and Mr Chitolie has not appeared in court to make his application in person, nor is he represented. I understand that Mr Chitolie was personally present in the Listing Office yesterday and was informed of the time of this hearing. No explanation for his failure to appear has been provided either to the court or to the Listing Office. In the circumstances, having read the papers in this matter, it seems to me appropriate to give judgment.
3. The proceedings were commenced in the Chancery Division of the High Court by the issue of a claim form on 16 June 2000. They were allocated reference number HC 0002739. The claim arises out of a sale by National Westminster Bank Plc as mortgagee of property known as 192A North Drive, Maylandsea, Essex under a legal charge granted by Mr Chitolie on 26 November 1982. In or about August 1988 the bank took possession of the property, following proceedings which came to this Court. The property was sold some 18 months later for £56,000. Mr Chitolie asserts that the sale was at an undervalue. He claims in these proceedings that the bank ought to have obtained at least £80,000 on that sale. The claim in the proceedings is for £50,000, representing what is described in the statement of claim as "equity money".
4. The proceedings came before Master Moncaster on 25 August 2000. There were before him an application by the bank, as defendant, for summary judgment and an application by Mr Chitolie, as claimant, for summary judgment. The Master acceded to the bank's application. He gave judgment for the bank under CPR Part 24 and dismissed the claim. He ordered Mr Chitolie to pay the bank's costs which he assessed at £2,000. He refused permission to appeal from his order.
5. The Master set out his reasons in a judgment has been transcribed and of which a copy has been provided for the Court's use. The Master held that the claim - if, indeed, there were a claim at all - had arisen in 1990 on the sale of the property; and that by the year 2000 when these proceedings were commenced the claim was well out of time. It was out of time either because it was a claim which fell within the period prescribed under the Limitation Act 1980 for claims in contract or in tort; or because it was an equitable claim to which the six-year period prescribed by the Act should be applied by analogy.
6. Second, the Master held that these proceedings were an attempt to re-litigate a claim which had already been disposed of in earlier proceedings brought in the Chelmsford County Court. Those proceedings had been dismissed by His Honour Judge Brandt on 22 November 1990. An application for leave to appeal (as it was then called) against Judge Brandt's order was made to this court. That application was dismissed by Taylor LJ (as he then was) on 6 December 1991.
7. I have had the opportunity of reading a transcript of the judgment of Taylor LJ; and it is plain that the complaints made in these proceedings were the same complaints as those made in the earlier proceedings to which the Master referred.
8. On 7 September 2000 Mr Chitolie issued an Appellant's Notice seeking permission to appeal to a judge of the High Court against Master Moncaster's order of 25 August. On 12 October 2000 that application was refused on paper by Park J. Mr Chitolie sought an oral hearing of his application for permission to appeal. The hearing of that appeal was fixed for 1 December 2000. Mr Chitolie did not attend; and the application was dismissed in his absence by Park J.
9. On 5 February 2001 Mr Chitolie applied for reinstatement of his application for permission to appeal; that is to say, for the application for permission to appeal to be relisted for oral hearing. It was that application which came before Jacob J on 12 March 2001.
10. There is no transcript of a judgment given by Jacob J on 12 March 2001. Enquiries have been made from which it appears that the master tapes were not activated in the court; so that no transcript can be obtained from that source. There is, however, a case note prepared by the associate in court that day. It reads:

"Monday 12/3/01

Chitolie opens.

Makes application for permission to appeal.

Judge goes on to hear appeal.

Judgment.

Application refused."

11. The time occupied by that application and hearing was between 10.30 and 10.45.
12. As appears from that case note, it is less than clear whether Jacob J simply refused the application to relist or whether he decided to hear the appeal from Master Moncaster and dismissed the appeal. The note suggests that he took the latter course. That must be the effect of the words, "Judge goes on to hear appeal." That is supported by the order that was made on that day. That records that "upon the appeal of the appellant by notice issued on 5 February 2001 and upon hearing the appellant in person, it is ordered that the appeal be dismissed."
13. The grounds of appeal upon which Mr Chitolie would seek to rely are set out in section 7 of the Appellant's Notice filed in this court on 23 March 2001. They are these:

"The judge:

(1) cannot confirm an appeal and then dismissed the matter when the other side failed to show up.

(2) cannot hear an appeal without transcribe edited judgment, especially when the edited judgment is available.

(3) it's absurd - how can the defendant obtain summary judgment without an application for the hearing???"

14. As to the last of those grounds it is plain that the bank obtained summary judgment on 25 August 2000 on the basis of an application which it had in fact made.
15. Reference in the grounds of appeal to the judge having "confirmed" an appeal is not a reference to anything which happened 12 March 2001; but is a reference to an earlier hearing before the same judge, Jacob J, on 24 January 2001. That order records:

"IT IS ORDERED

that the Claimant's application for permission to set aside the Order of Mr Justice Park dated 1st December 2000 be refused

AND for the avoidance of doubt the Claimant's application to appeal against the Order of 25th August 2000 is confirmed."

16. The court note of that hearing on 24 January 2001 is in these terms:

"At 15.37 Mr Chitolie in person makes application for permission to apply for permission to appeal (for an oral hearing). Outlines facts and history. His Lordship explains he is refusing application because-

(1) Mr Chitolie knew the date of the oral hearing and

(2) Mr Chitolie knew Master Leslie could give him permission to turn up the oral hearing despite the debarring order of Butterfield J."

(Mr Chitolie arrived in court and proceeded to make his application for permission to appeal)

17. LORD JUSTICE CHADWICK: Mr Chitolie appeared at 10.55 and has now addressed me for 20 minutes. He has put in front of me a document described as a "Permission to appeal statement", which I have read. I have read also an attendance note of a hearing before Taylor LJ on 6 December 1991; but, as I have said, I have the official transcript of the judgment given on that day.
18. The reference in the court's case note for 24 January 2001 to "application for permission to apply for permission" is, I think, a reference to the need for Mr Chitolie to obtain permission in relation to matters covered by a Grepe v Loam order made by Butterfield J in the Queen's Bench Division on 30 October 2000. Some confirmation of that appears from Mr Chitolie's own Application Notice of 5 February 2001, where he says this:

"I, Dick Lucien Chitolie confirm that I did not attend the listed 1st December 2000 oral hearing because of not being sure against something unlawful attached order of His Honour Mr Justice Jacob removing any doubt on 24 January 2001."

19. I do not have confidence that it is possible, on the material which Mr Chitolie has put before the court, to be sure of the basis on which Jacob J dealt with the matter which was before him on 12 March 2001; but there are, I think, only three possibilities. First, the judge took the view that the application of 5 February 2001 was within the scope of the Grepe v Loam order which had been made on 30 October 2000; and that, no permission having been granted by Master Leslie as required by that order, the application of 5 February 2001 had to be dismissed for that reason alone.
20. Second, the judge treated the application before him as an application to relist for oral hearing the application for permission to appeal against the order which Master Moncaster had made; that is to say, the application for permission to appeal made by notice dated 7 September 2000.
21. Third, the judge thought that the sensible course in all the circumstances was to treat the application as if there were an appeal from Master Moncaster before him; and, having taken that course, he heard and dismissed that appeal.
22. If the correct analysis is the third of those possibilities - which most closely accords with the order actually made on 12 March - then this is an application for a second-tier appeal to which section 55(1) of the Access to Justice Act 1999 applies. Permission cannot be granted unless the appeal would raise some important point of principle or practice or that there is some other compelling reason why the appeal should be heard by the Court of Appeal.
23. If the correct analysis is that the judge treated the application before him as an application to relist for oral hearing the application already dismissed by Park J in December, then the test is not the test under section 55(1) of the 1999 Act, but the more liberal test: is this an appeal which has any real prospect of success? If the true view is that the judge treated this as a matter covered by the Grepe v Loam order made by Butterfield J, then there is no appeal from his decision.
24. Whichever be the true analysis, I have no doubt that the present application should be refused. It should be refused because those proceedings are plainly an attempt to relitigate matters which were raised in the proceedings in the Chelmsford County Court in 1990; and which have already been the subject of an application for leave to appeal to this court in December 1991 which has been refused. To seek to relitigate matters already dealt with is an abuse of this court's process. The application now made must be dismissed.
25. Butterfield J's order of 30 October 2000 does not extend to applications to this court. That is why this application has been listed and heard. I am satisfied that the order should now be extended to applications to this Court. No further applications in these proceedings, or in the proceedings referred to in the order of 30 October 2000 are to be listed in this Court unless the permission required in that order has first been obtained.