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 CENTRAL LONDON COUNTY COURT
(His Honour Judge Cooke QC)

		Royal Courts of Justice Strand London WC2 Monday 22nd October, 2001

1. LORD JUSTICE MAY: This is an application made by Mr Hussein for permission to appeal against the judgment of His Honour Judge Cooke QC, sitting in the Central London County Court on 9th July 2001.
2. Mr Hussein's notice of appeal was filed on 3rd August and may or may not have been a few days out of time. I simply mention that because it seems to me that the delay, if any, was short and I would give any extension of time which may be required arising out of that.
3. Mr Hussein and his wife were defendants in an action brought by the Alliance & Leicester Plc (the bank, former building society). The Alliance & Leicester were claiming possession of Mr and Mrs Hussein's house and repayment of all monies owed to them by the applicant. There was a mortgage. It was accepted by Alliance & Leicester that a purported signature by Mrs Hussein on the mortgage application form was a forgery and, because of that, the Alliance & Leicester were only able to and sought to enforce their mortgage agreement against Mr Hussein and thus only his share of the equity. However, since the Alliance & Leicester mortgage had been used to pay off a prior mortgage from the Bradford and Bingley Building Society, totalling, it appears, about £88,000, which mortgage, so it was found, had been validly executed by both Mr and Mrs Hussein, the Alliance & Leicester sought to have that mortgage kept alive as a subrogated security, so that any judgment they got could be enforced both against Mrs Hussein as well as Mr Hussein.
4. The Husseins put in a defence, saying that the Alliance & Leicester mortgage application was a forgery all round, and they made counterclaims against Alliance & Leicester and also joined as Part 20 defendants (or third parties) Raphael Teff & Co, a firm of solicitors, and Handf Finance Ltd, who I understand are a firm of mortgage brokers. They made allegations which included allegations of fraud against all these three parties, and in the defence and Part 20 proceedings claimed damages which they put at £50,000 for slander of title and £100,000 damages for anxiety and mental anguish, and so forth.
5. Mr Hussein has explained to me this afternoon the outline of what is said in relation to these matters. As I understand it, but this is necessarily quite brief, he says that the mortgage for £85,000 or thereabouts was brought about (I suspect he will say fraudulently) by changing solicitors and by securing a reference from a firm of accountants who was not the firm of accountants that had been put on the application form. He tells me that although apparently the mortgage was for £85,000 or thereabouts, the real mortgage was only for £55,000 and he asserts that £30,000 pounds, the balance, went to the broker. He says that the Alliance & Leicester were the ultimate lender. They had a duty to see that the transaction was in accordance with the application. He says that they owed him a duty of care which they were in breach of.
6. I say nothing about the merits or otherwise of that and no doubt there are further details. But I simply recount that as being what Mr Hussein has told me is the basic outline of, at any rate, that part of the case.
7. The date for the trial of the main action, 9th July, was fixed in January 2001 at a hearing at which apparently Mr Hussein did not attend. After it had been fixed, but before the date for trial, he applied to vacate that date and eventually that application came on for hearing before His Honour Judge Wakefield on 12th June. It appears that the applicant did not attend that hearing. On 12th June Judge Wakefield dismissed the application to vacate the trial date. Mr Hussein subsequently, so it appears from the transcript of Judge Cooke's hearing, appealed that order and his appeal was heard on 5th July by Ferris J.
8. Incidently, the Appellant's Notice which is before the court appears to be the application for appeal which Ferris J heard, but that perhaps is incidental.
9. The applicant, Mr Hussein, did attend the hearing before Ferris J, who dismissed the appeal. So it was that the main action was for trial before His Honour Judge Cooke on 9th July.
10. The transcript of the entire proceedings is in the bundle which I have. It runs to 63 pages and I have read that in full.
11. Neither Mr nor Mrs Hussein attended that hearing, but a Mr Tyrrell (I think his name was) appeared in the court building before the hearing with a note from Mrs Hussein saying that her husband had been taken to hospital on the previous day, 8th July, with a heart problem. Mr Tyrrell did not remain in court to give any explanation, and it was in those circumstances that Judge Cooke had to decide whether to proceed or not.
12. After a full consideration of the situation, Judge Cooke decided to proceed with the trial in the absence of Mr and Mrs Hussein. He was referred to the history of Mr Hussein seeking adjournments on the ground of ill health, without, so it was said on behalf of other parties, ever providing proper medical evidence in support. Judge Cooke heard evidence that Mr Hussein was heard to say after the hearing before Ferris J on 5th July that he would not be attending the trial on 9th July.
13. The transcript also clearly indicates that Judge Cooke took account of the fact that if Mr Hussein was ill, and if he could satisfy the other conditions, he could apply for a rehearing under County Court rule Order 37, rule 1 or Rule 39.3(3) of the Civil Procedure Rules. That reference appears in paragraph 16 of the judgment at page 27.
14. Rule 39.3 deals with the failure of a party to attend the trial. It gives the court power in subrule (1) to proceed in the absence of a party and it provides, at subrule (3):

"Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside."

15. There is a broadly equivalent possibility under County Court Rule 27 which, albeit an old County Court Rule, still survives in the Schedule to the Civil Procedure Rules.
16. So Judge Cooke decided to continue with the hearing. He heard evidence and he heard submissions from counsel for the Alliance & Leicester and for the mortgage brokers. He upheld the Alliance & Leicester's claims. He dismissed Mr Hussein's claims and counterclaims against the Alliance & Leicester and Handf Finance, the solicitors apparently fallen out of the picture at an earlier stage.
17. It is against that order that Mr and Mrs Hussein want permission to appeal. Their grounds of appeal are very extensive and, doing the best I can, the main points might be summarised from the proposed Appellant' Notice and skeleton argument as follows.
18. It is suggested that the whole affair is permeated by fraud on an impressive scale, the allegations being largely directed against the Alliance & Leicester and the mortgage brokers, but also extended to actions by or complaints against the mortgage brokers solicitors, to whom Mr Hussein has referred in his address to me today, counsel at the hearing before Judge Cooke and indeed the whole court system. Mr Hussein complains that a substantial number of hearings were held and orders made without him or his wife being notified or consulted. Mr Hussein and his wife raise a number of counterclaims against the mortgage brokers in their skeleton argument for unpaid commission owing to them from the brokers. As to the hearing on 9th July, they complain that Judge Cooke proceeded with the trial although he had been told that Mr Hussein had heart problems and he made an order, it is said, that was not sought by the claimant. The claimant and the Part 20 defendant are said to have perjured themselves during the trial, and counsel for the mortgage broker is said to have poisoned Judge Cooke against the applicants by raising irrelevant matters.
19. It is scarcely surprising that Judge Cooke did not make findings on the counterclaim, and in so far as the matters to which I have referred would have been defences if they would have been defences in defence of the case, because Mr Hussein was not there and nor was his wife to put these forward and to give any necessary evidence about them. It seems to me that it is quite inappropriate for Mr Hussein to be given permission to appeal to the Court of Appeal against this order. No basis, so far as I can see, is put forward why Judge Cooke's order was wrong on the basis on which it was made - that is to say, without the evidence and without the submissions in support of Mr and Mrs Hussein's case.
20. Rather, if there is merit in what is said and if in justice Mr and Mrs Hussein ought to be permitted to put these matters forward (as to which I say nothing) the proper route seems to me to lie or to have lain in an application under Rule 39.3(3) to set the judgment or order aside in circumstances where neither Mr nor Mrs Hussein were there.
21. This is not the first time that this court has been concerned with matters of this kind, because earlier this year in a case called Noel-Johnson v Gopee Judge LJ, in relation to an application made to the Court of Appeal to challenge a decision made, as it happens, in the Mayor's and City of London Court, reached in the absence of the applicants in that case, said:

"It is clear to me that this decision having been reached in the absence of the defendants, the first court to which their attention should be directed is not the Court of Appeal but the court at which the original order was made in their absence. That is the effect of the current rule 39.3.3."

22. Judge LJ dismissed the application for permission to appeal in that case.
23. I, for my part, think that the same applies to Mr Hussein's application to the court today, which I dismiss for the same reasons.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)