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 MEDWAY COUNTY COURT
(HIS HONOUR JUDGE RUSSELL-VICK QC)

		Royal Courts of Justice Strand London WC2 Wednesday 17 October 2001

1. LORD PHILLIPS, MR: This appellant, Mr Ashford, who has been given leave to appeal by Laws LJ on one issue, applies to this court for permission to appeal on a further issue. The skeleton argument before Laws LJ set out the issues in relation to which Mr Ashford sought permission to appeal. That included the MIRAS issue, upon which permission was given. It also included an application for permission to appeal against the District Judge's order as to costs and a further issue, to which I will refer.
2. So far as the application in relation to costs is concerned, that was made because Mr Ashford understood that he would need to do so expressly if the court were to interfere with the District Judge's order, even if his appeal on the merits succeeded. We have explained to Mr Ashford that, if he succeeds on the merits, this court will review the orders for costs which were made below in the light of our findings. For his part, he has made it plain that he was not seeking to make any attack on the order for costs if his appeal on the merits fails.
3. The remaining issue appears in his skeleton argument as follows:

"Because of the absence of the C & G deponent, the issue that C & G had added monies to the defendant's mortgage by manipulation of the time of year that annual interest was applied to the account, was unable to be debated at the hearing of 25 June 1999."

4. Mr Ashford has elaborated on that issue. He says that the accounts were added to his account interest nearly a year earlier than they should have been, which was having a consequent effect upon the amounts that he was being charged on the account. However, it is an accounting issue which had not been canvassed before District Judge Caddick, but arose as a result of part of the judgment given by District Judge Caddick which focused Mr Ashford's attention on the particular problem and which led him to seek to raise the point on appeal to Judge Russell-Vick QC.
5. The transcript of the hearing of 25 June, which appears to be a complete transcript, makes no reference to the absence of the C & G deponent. It does, however, deal with Mr Ashford's attempt to introduce this matter into his appeal. The relevant part of the transcript appears at page 5E, where there are exchanges between Mr Ashford and the judge on the question of whether he should be permitted to advance this ground of appeal. The judge said:

"Just let me complete whatever I want to say. There was no application made on your behalf in September last year to amend the notice of appeal.

MR ASHFORD: No, I did ask the barrister to do it and he said he wouldn't do it."

6. Mr Ashford has told us that in fact it was a solicitor not a barrister. It seems to me more likely that Mr Ashford referred to the person in question as a barrister, than that the shorthand writer made a mistake, but it is of no relevance.

"I asked [the lawyer] to do it and he said he wouldn't do it.

JUDGE RUSSELL-VICK: That's a matter, and you're bound by the advice that he gave you on that occasion, unless you are making an application to amend now and it's a very late time to do so, and it would probably involve a further adjournment, and we don't want that I don't think. Very well. So will you limit yourself, first of all, to the issue of costs.

MR ASHFORD: The costs as you know is at the end."

7. Which goes to show, as he has explained to us, that he was only interested in the costs dependent on the result of the appeal. The judge continued:

"Very well, we will deal with (b)....the MIRAS issue."

8. Which he went on to do.
9. As I read it, the judge's decision was that he would not entertain an application to add a ground of appeal at that hearing because it came too late. If it be the case, as Mr Ashford says, that he added that it would not be right to do so in the absence of the C & G deponent, it is an observation I can very well understand. It would not be right to do so for that additional reason.
10. At the end of the day, after the issue of costs had been referred to, the judge not having dealt with this particular issue, Mr Ashford reverted to it. The judge initially thought he was asking for permission to appeal, but Mr Ashford said, "No, there is no point", and then went on:

"It is the other side I am more interested in.

JUDGE RUSSELL-VICK: That is a matter you will have to seek advice on. As I said earlier, you may find it very difficult to get leave.

MR ASHFORD: I believe that.

JUDGE RUSSELL-VICK: For permission to appeal out of time.

MR ASHFORD: Does it mean I will have to make it a separate action?

JUDGE RUSSELL-VICK: Yes, more likely as a separate action."

11. Mr Ashford told us of the following matter, of which we were not aware from the documents. He went on to bring a separate action which resulted in a judgment against him, applying the principle of res judicata. Whether it was made clear that that judgment says that it was a matter he should have raised in the first instance, we know not.
12. We are concerned with whether Mr Ashford would have a reasonable prospect of persuading us that Judge Russell-Vick was wrong to refuse to entertain this additional ground of appeal on 25 June. I regret to say that we are firmly of the opinion that he would not succeed in persuading this court that the judge was wrong, in the exercise of his discretion, to refuse to entertain that part of the appeal. It was plainly going to be a complicated matter, a matter that he could not deal with at that time. It had not been raised on the notice of appeal and it was a perfectly proper exercise of his discretion simply to say that he was not going to entertain it.
13. For that reason, we dismiss the renewed application for permission to appeal that point and invite Mr Ashford to proceed with the MIRAS point.
Order: Permission refused.