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 MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE TETLOW)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 20 November 2001

1. LORD JUSTICE CLARKE: This is an application for permission to appeal by the claimants, Mr and Mrs Knight, against an order of His Honour Judge Tetlow made on 12 June 2001 dismissing their claim against the 3rd and 4th defendants.
2. The action is complicated. The application before the court today has been further complicated by the fact that there is a large appeal bundle and, since the application commenced, I have been provided with three further substantial bundles described as supplemental bundles A and B, one of which is in two parts, which the applicants wish to put before the Court of Appeal.
3. The claim is for moneys said to be due in respect of two operations, the first relates to works said to have been carried out in connection with a charity event, and the second in respect of work at Great Marlborough Street, Manchester. At the trial Mr and Mrs Knight both gave oral evidence. They called other witnesses to give evidence on their behalf, but their evidence was undoubtedly the principal evidence on which the judge relied. The 3rd and 4th defendants called the 1st defendant, Mr Fazelynia to give evidence on their behalf. They also called a Miss Ridgeway who, by the time of the trial, was married to Mr Fazelynia's brother and thus called Mrs Fazelynia (not to be confused with the 2nd defendant, who is the 1st defendant's wife).
4. The decision of the judge depended to a large extent on the view he formed as to the credibility of Mr and Mrs Knight on the one hand and the defendant's witnesses (in particular Miss Ridgeway) on the other. When I read these papers it seemed to me that the proper course was to refuse permission to appeal on the ground that an appeal would have no realistic prospect of success, given the undoubted fact that it is very difficult, if not impossible, to persuade the Court of Appeal to reverse the decision of a trial judge when it is based almost entirely upon oral evidence.
5. However, in the course of the argument which has been advanced by the applicants personally, and in the light of all the materials I have now seen, I have reached the conclusion that I should grant permission to appeal for these short reasons.

The Charity Event

6. The judge rejected the applicant's claim for moneys in respect of work said to be done in relation to the charity event on a number of bases. First, the judge was not persuaded that the work was not done voluntarily or gratuitously simply because it was a charity event; secondly, he held that such work as was carried out was worthless or of no value; thirdly, he held that it would certainly be worth no more than £500; and fourthly, the applicants could not show which, if either, of the 3rd and 4th defendants was liable.
7. I have reached the conclusion that the applicants should be permitted to argue before the Court of Appeal that the work was not done on a charitable basis. There are undoubtedly curious features contained in the evidence given on behalf of the applicants which are explained by the judge and which will undoubtedly present difficulties for the applicants on any appeal.
8. On the other hand, the evidence of the 1st defendant was far from satisfactory. In paragraph 7 and 8 of the 1st defendant's defence, he denied that he had requested the applicants to provide measurements for a banner which was to be used at the event, he averred that the 1st applicant voluntarily offered to provide the measurements in the knowledge that the banner was for use at a charity event, he admitted that the 1st applicant provided the measurements to the firm responsible for manufacturing the banner and he asserted that he orally agreed with the 1st applicant that, as the banner was being used for a charity event, the taking of measurements by the 1st applicant would be done at no charge.
9. In paragraphs 21 and 22 of his statement, the 1st defendant said that he never asked the applicants to do any work in relation to the charity event. In his oral evidence he said that what was alleged in the defence was not correct. He said that he had no knowledge about it and certainly had not specifically agreed that any work to be done by the applicants was to be free of charge.
10. The judge held that the 1st defendant was not present and had nothing to do with any request for the work. He held that it was probably Mr Zadan who was present at the meeting and had made whatever request was made. Mr Zadan did not give oral evidence at the trial so the judge only had his witness statement. One of the applicants' grievances is that the judge initially indicated that he would not rely on that statement on the ground that it was hearsay but subsequently appears to have relied heavily on it in reaching his conclusions.
11. The judge reached the conclusion that Mr Zadan was right in saying that "there was no commission promised in any way and he did not commission the 1st claimant to do the work". The judge added:

"I prefer his evidence that in effect the first claimant was a volunteer and I am not satisfied to the contrary. Also I am not satisfied by the claimant's evidence that there was an instruction by either the first defendant or anybody else."

12. It appears to me to be arguable that the judge has left the matter in the air without making any clear finding as to precisely who asked the applicants to do what. I recognise that the burden of proof is upon the applicants, but it does appear to me that the applicants should have an opportunity to argue before the full court that the judge was wrong to hold that the work was done wholly voluntarily. I also think they should have the opportunity of arguing that the work was not worthless. It is plain that it was not worth as much as they indicated in the first document which they presented; indeed it is plain that their prospects of persuading the Court of Appeal, even if they were to succeed, that they would be entitled to more than £500 at the very most would be wholly unrealistic, though I would not shut out argument.
13. Finally, in my view they should be permitted, if they succeed so far, to seek to persuade the Court of Appeal that the work must have been done on behalf of one or other of the defendant companies since all the previous work that they had done was done on behalf of one of these companies and not on behalf of the 1st defendant personally. Once that position was reached it would not be an attractive conclusion to say that they must fail because they could not show which company.
14. That brings me to a further matter relevant to the trial, about which the applicants complain. The three bundles to which I have referred are made up from two bundles which were delivered by the defendants' solicitors to the applicants only 48 hours before the trial. The defendants had been ordered by the court to prepare bundles for the trial. They prepared principal bundles, but they also belatedly prepared these two extra bundles. I am told that when the applicants sought to rely upon documents contained in these further bundles, the judge refused to permit them to do so on the ground that they were not contained in the trial bundles. It is fair to say that they did not seek an adjournment, nor did they challenge that decision at the time. They say it was difficult for them as litigants in person to know precisely what to do. They say that there are a number of documents on which they sought to rely and which they would wish to put before the Court of Appeal. The applicants say that those documents include evidence that proves that AAA Euro Limited was the appropriate company.
15. I do not propose to determine today the question whether they should be permitted to rely upon that material. That application should be made to the full court on notice to the respondents and should be determined at the hearing of the appeal.

Great Marlborough Street

16. The judge referred to this issue as the "Great Marlborough venture". He said that it was speculative and, although he accepted that some work was carried out by the applicants, he held that it was not done at the request of the 1st defendant on behalf of the 3rd or 4th defendants. The judge accepted that work amounting to some 41 hours was done and that if he was wrong on the first point it would be appropriate to award £615 to the applicants, which was a fraction of the sum they were claiming. It appears to me there would be considerable difficulties in their recovering significantly more than that in light of the judge's finding.
17. Having reached the conclusion that they should be permitted to appeal on the first ground, any conclusions on the first ground might well be relevant in the approach to the second ground. Therefore, it would be right to permit them to appeal in relation to the second operation as well.
18. Although the 1st defendant was present as a witness not as a party because the claim against the 1st and 2nd defendant was compromised on 24 November 2000, then the court made an order adding the 3rd and 4th defendant as parties pursuant to CPR Part 19 and 19.1(2)(a) and stayed all further proceedings against the 1st and 2nd defendants on terms set out in the schedule to the order. I have not seen the schedule to the order, but the applicants say, and I see no reason to doubt it, that there is a signed agreement dated 16 November which is in the same form as the draft which I have seen. The schedule provides as follows:

"1. The Defendant shall pay to the Claimants the sum of £5,000 within 14 days of the date of the order. For the avoidance of doubt this sum is inclusive of interest and costs.

2. The Claimants and 1st and 2nd Defendants agree that the order and schedule and the terms thereof shall be in full and final settlement of the Claimants' claim against the 1st and 2nd Defendants and all and any claims and disputes existing between the Claimants and the Defendants, however arising, whether notified or not, as at the date of this order.

3. Each party to bear its own costs on obtaining this order."

19. There appears to have been some confusion as to the true construction of the order. There is a concern expressed by the applicants that the expression "the defendants" in the last line of paragraph 2 might refer to defendants other than the 1st and 2nd defendants. That cannot possibly be right. This agreement only refers to "all and any disputes existing between the claimants and 1st and 2nd defendants". It is clear that that includes any claim in respect of the two operations in respect of which they are making a claim against the 3rd and 4th defendants. I say this because the position appears to me at least to be clear, whereas I am not at all sure that it was clear to the judge.
20. The claim was originally brought in respect of four invoices which included numbers 12, 19 and 30. The claim in respect of the fourth invoice was struck out. After that there remained claims in respect of three invoices in respect of the 1st and 2nd defendants. Some of the documents contained in bundles A and B, to which the applicants wish to refer, appear to show that the work claimed under invoice 12 was settled for £5000 on the footing that the claimants' claim in respect of work said to be done in relation to invoices 19 and 30 (which relate to the charity event and the Great Marlborough Street event) would be made against the 3rd and 4th defendants. I am not sure whether, if at all, those matters are relevant to the issues on the appeal. It may well be that they are not. I am not finally determining any matter except for permission to appeal on this application.
21. This whole case and appeal seems to me to be likely to become completely out of control in terms of cost. It is quite obvious that very large sums by way of costs have been incurred already. I understand that the applicants have other claims against the company, the 3rd and 4th defendants, or perhaps other companies in the group. As I understand it the 3rd and 4th defendants were originally owned by the 1st defendants and were transferred to one of the Vodafone group companies and that the companies are now Vodafone companies. I know very little, if anything, about that matter. But, it does seem to be most unfortunate that these claims were not resolved at the same time as any other claims that the applicants had against the companies.
22. Even now, it would be very desirable if an attempt was made to resolve all the outstanding issues between the parties to avoid the future expenditure of huge costs to nobody's benefit. To that end it may be possible to resort to mediation. The Court of Appeal has a mediation service and perhaps the applicants and the respondents would think it sensible at least to explore whether mediation might not be a way of resolving all these difficulties. I am very concerned about the costs.
23. Finally, I would say that this case shows that it is very difficult to be a litigant in person. It is very easy to be surrounded by documents and take one's eye off the ball or even to fail to recognise what the ball is. I do think it would be desirable for the applicants, if they cannot afford to instruct solicitors and counsel themselves, to go to the pro bono unit in order to seek their assistance so that counsel can be instructed to focus on the important issues at the hearing of the appeal.
24. I shall grant permission to appeal. I shall direct that the appeal be heard by two Lords Justices. It ought to be possible to resolve it, if counsel was present, in half a day. I shall direct that if the applicants wish to ask the Court of Appeal to look at any documents which were not before the judge along the lines I have suggested that they should extract from these three very large bundles the few documents which in truth they wish to rely on and put them in a slim bundle with a short explanation why it is they should be allowed to put them before the court and how they are relevant to the resolution of any of the issues before the court.
Order: Permission to appeal granted.