England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HER HONOUR JUDGE HALLON)

		Royal Courts of Justice Strand London WC2 Monday, 15th October 2001

Monday, 15th October 2001

1. LORD JUSTICE JONATHAN PARKER: This is an application by Louise Clare Mullard, the claimant in the proceedings, for an order that a notice of appeal served on or about 7 December 1998 by the defendants in the proceedings, Mr Neil Sharma and his wife, Mrs Rena Sharma, be struck out on the ground that the Sharmas (if I may so describe them) have failed to set down their appeal within the time specified by the relevant rules, or at all. Miss Mullard appears on this application by Mr Christopher Miller of counsel. There has been no attendance by Mr or Mrs Sharma, notwithstanding that they have been notified of this hearing. They have also been called outside court but there has been no response. Mr Miller has told me (and of course I accept) that attempts have been made personally to serve the application on Mr and Mrs Sharma, but it is not clear to what extent such attempts have been successful since the recipient of the application when it was served, although describing herself as Mrs Sharma, stated that she was not the Mrs Sharma who was a party to the present proceedings. At all events it is clear that the Sharmas have received notice of the proceedings and in the circumstances I propose to deal with the matter.
2. As appears from the fact that the notice of appeal was served more than two years ago, the matter has a long history. The proceedings, which were brought by Miss Mullard in May 1997 in the Bromley County Court, concern a freehold dwelling house known as 28 Beechwood Avenue, Orpington, in Kent. The property was purchased in November 1994 jointly by Miss Mullard and a Mr Johnson, with a view to their occupying it as their home. The purchase was made with the aid of a mortgage advance from Halifax Building Society secured on the property. Shortly after they had moved in, however, Miss Mullard vacated the property and she has not since returned to it. Some time during 1995, by arrangement with Mr Johnson, Mr and Mrs Sharma moved into the property and occupied it until it was sold (as I shall later relate).
3. In May 1997 Miss Mullard brought these proceedings against the Sharmas claiming possession of the property. At the same time she brought an action against Mr Johnson claiming the entire legal and beneficial title to the property. As I understand the procedural history, the two sets of proceedings were compromised on 24 October 1997 when a Tomlin Order was made. In other words, the proceedings were stayed on agreed terms. Those terms provided that Miss Mullard was to be recognised as the sole legal and beneficial owner of the property. They further provided that the Sharmas were to pay a sum of £5,000 to her within six weeks and also procure redemption or transfer of a mortgage on the property with the Halifax Building Society within a period of three months. The terms further provided that upon redemption or transfer of that mortgage Miss Mallard should execute a transfer of the property to the Sharmas. It appears that the sum of £5,000 was duly paid to Miss Mullard's solicitors but that it has remained in an account earning interest because of the ongoing dispute between Miss Mullard and the Sharmas. In the event the Sharmas did not procure redemption of the Halifax mortgage, nor has the property been transferred by Miss Mullard to them.
4. In March 1998 Miss Mullard applied for the stay on the original proceedings to be lifted. That application was heard on 28 May 1998 by District Judge Brett. The District Judge directed that unless the Sharmas complied with the terms upon which the action had been stayed then the stay was to be lifted. The District Judge did, however, allow the Sharmas a further two months in which to procure redemption of the Halifax mortgage. Subsequently, the Sharmas applied for a further extension of time for compliance with the terms of the original Tomlin Order, but by an order dated 13 August 1998 District Judge Brett dismissed that application. Accordingly, there was no longer any stay on Miss Mullard's proceedings, which were fixed for hearing in early December 1998. The Sharmas appealed against the order dated 13 August 1998, and they also sought permission to appeal out of time against the first of District Judge Brett's orders, that is to say the order dated 28 May 1998. On 30 September 1998 Her Honour Judge Hallon dismissed the Sharmas' appeal against the later of District Judge Brett's orders, and refused permission to appeal out of time in relation to the earlier of those orders. The Sharmas applied to the Court of Appeal for leave to appeal against the judge's dismissal of their appeal against the order dated 13 August 1998. That application came before this court (consisting of Buxton and Clarke LJJ) on 1 December 1998. Leave to appeal was granted, coupled with a stay of execution on the Sharmas' undertaking to pay some £3,704 to the Halifax (that being the amount of the current arrears under the mortgage) and to keep up the mortgage instalments. The sum of £3,704-odd was duly paid to the Halifax shortly thereafter. At about this time it appears that the Halifax itself obtained a suspended order for possession of the property based upon (I take it) a failure to keep up the mortgage payments.
5. On 6 January 1999 District Judge Lamdin suspended a warrant for possession taken out by the Halifax until 19 May 1999; pending the hearing of the Sharmas' appeal (for which leave had been granted on 1 December 1998). Since then (on a date which does not appear from the papers) the suspension on the possession order obtained by the Halifax was lifted.
6. The Sharmas failed to set down their appeal within the time set down by the rules. They accordingly applied to the Court of Appeal for an extension of time. That application came before the Court of Appeal (consisting this time of Peter Gibson and Clarke LJJ) on 28 June 1999. By that stage the Sharmas were some two months out of time in setting down their appeal. Before the court on that occasion was evidence from the Sharmas' then solicitor, a Mr Thackerar of Patel Law Partnership, in which he accepted full responsibility for the fact that the appeal had not been set down, and agreed that his firm should pay all the costs thrown away, on an indemnity basis. The Court of Appeal granted the Sharmas' application.
7. However, more than two years have elapsed since that order was made and the appeal has still not been set down. Moreover, in January 2001 the property was sold by the Halifax.
8. In or about November 2000, as I understand it, the Sharmas signed a draft form of consent order providing for the striking out of their appeal. Miss Mullard's solicitors then submitted that signed draft order to the Court of Appeal, but they were informed (wholly correctly) that such an order could only be made by the Court of Appeal in the context of a live appeal or in the context of an application such as the present to strike out the notice of appeal served by the Sharmas. Hence the present application.
9. Given the history of the matter, the non-attendance by Mr and Mrs Sharma and the absence of any reason on the material before me which could even begin to explain the fact that, notwithstanding the enormous lapse of time, the appeal has still not been set down, I can see no other appropriate course than that which is urged upon me by Mr Miller on behalf of Miss Mullard, namely to strike out the notice of appeal and thereby to put an end to the appeal finally.
10. Accordingly I grant this application and make that order.
(Application granted; costs awarded to the applicants, on an indemnity basis; costs to be subject to detailed assessment if not agreed; section 11 order against Legal Services Commission).