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
(Mr Justice Halgarten)

		Royal Courts of Justice Strand London WC2 Thursday, 13th December 2001

Thursday, 13th December 2001

1. LORD JUSTICE CLARKE: On 26th April 2001 His Honour Judge Halgarten QC gave judgment for the claimant in the sum of £365 by way of damages for breach of contract. The claim arose out of a contract in which the claimant brought a second-hand car from the defendant. The judge held the defendant liable on the claim, on the basis that there was a defect in the car. The judge then considered the damages in some detail and in that regard held that the claimant had failed to take reasonable steps to mitigate his loss by accepting a particular offer by the defendant. For some reason no application was made to the judge for permission to appeal, but an application was subsequently made to the appeal court which, under the relevant provisions of the CPR, was the High Court.
2. The application came before Crane J on 11th July when the applicant was represented by Miss Calder, as he was at the trial and as he has been today. The judge gave a judgment which to my mind strongly suggests that he considered the matter with some care. He said this:

"This is an application for permission to appeal, an oral hearing following refusal on paper. The action related to a defective car. His Honour Judge Hallgarten heard the case and gave judgment on 26th April this year at the Central London County Court. The matter which the applicant seeks to appeal relates to the question of mitigation of loss, which in fact was a crucial issue, because in the absence of the repair costs, the subject of the Judge's finding in this matter, the damages recovered were quite small, namely £365.

I have read carefully the applicant's skeleton argument relating to the position to appeal. I have read the learned Judge's judgment and I have been referred by Miss Calder to the evidence of the witness Denier in relation to an offer to her. She has referred me to the principles of mitigation of loss and mitigation of damage. In my view, the principles are not in doubt and there is no indication in the Judge's judgment that he failed to understand those. What he did on page 14 of his judgment was to consider evidence that had been given about an offer on behalf of the defendant to repair the car. He reviewed the evidence briefly on that topic and came to the conclusion in these words: `In my view, that was a plain failure to mitigate.' He dealt with the question of whether the cost of towage that the claimant might have had to bear affected the matter.

In my view, as I have said, there is no indication that the Judge went wrong in law. He reached a decision of fact and a conclusion that was well within the province of a trial judge, particularly in a case of this kind.

There is one point I should mention specifically that Miss Calder raises today. She points out, quite correctly, that if the offer had been accepted the defendant would have incurred costs in getting the car repaired. In my view, that is a misconceived point. The duty to mitigate, as it is sometimes called, is in fact a principle that if the defendant seeking damages has acted unreasonably in failing to avoid loss, whether past or future, then he will not recover the loss that he could have avoided. In my view, the question of what it would have cost the defendants to repair the car is beside the point.

In order for permission to be given, it has to be shown that there is a real prospect of success or some other reason why an appeal should be heard. In my view, there has been a complete failure to demonstrate there is any appealable point in this case."

3. That strikes me as a most measured judgment. The judge referred to the fact that he had read the applicant's skeleton argument, as indeed have I. It runs to some five pages and had been carefully prepared by Miss Calder, who had every opportunity to put into it whatever she thought appropriate by way of challenge to the reasoning of the judge.
4. By the express terms of section 54(4) of the Access to Justice Act 1999, this court has no jurisdiction to entertain an appeal from a decision of the appeal court to refuse permission to appeal.
5. It appears that after the decision of Crane J, Miss Calder consulted Harvey McGregor QC, who is, of course, the editor of "McGregor on Damages". She thereafter sought an opportunity to reopen the application. She wrote to Mr Foley, who is and has for many years been the clerk to the judge in chambers, as follows:

"I would be grateful if this case could be put before the judge for further argument. He may hear further argument until such time as the order is sealed.

I discussed the matter with McGregor (who read the judgment). It is his view that the learned County Court Judge was in error.

I have set out in a further skeleton argument the points which emerged from that discussion and I would be most grateful if you would place it before the learned judge."

6. It thus appears that Miss Calder did not consult Mr McGregor before appearing before Crane J but afterwards. She then attached to the letter a supplementary skeleton argument in which, under the heading "further argument", she set out a number of points, including that the trial judge, having found that the claimant failed to mitigate, should have gone on to consider the consequence of that failure. That point is then elaborated in a total of some seven paragraphs. I note that there is no suggestion in that skeleton, or indeed in the letter to Mr Foley, that any complaint was being made about the course of the hearing before the judge.
7. In my judgment, if one wishes to go back to a judge on the basis that one has not had a fair hearing the first time, the matter should fairly be put before the judge. However that may be, the judge noted on the letter:

"The arguments to be raised are essentially those raised (among others) at the hearing. I am not prepared to reopen the matter or have a further hearing."

8. He signed that and dated it 13th July.
9. Miss Calder now seeks permission to appeal against the decision of 13th July refusing to reopen the matter, although she also seeks permission to appeal against the decision of 11th July on the footing that the applicant was not afforded a fair hearing on that occasion.
10. Miss Calder in fact wrote to the Master of the Rolls on 30th July and asked him to consider the matter. That letter also does not assert Crane J acted unfairly on either 11th or 13th July. However, in the Appellant's Notice filed on 27th July, which I think was prepared by the applicant himself, the grounds of appeal are these:

"The order relating to the Permission Application not having yet been sealed, the learned Judge was Wednesbury unreasonable in refusing to hear further argument, when (a) Counsel would have been able to show that an appeal from the Order of the County Court Judge would have had a real prospect of success; and

when

(b) the learned judge had not allowed Counsel to make her submissions on 11th July, 2001 without constant interruptions so that she could not properly present my case and was thus deprived of a fair hearing."

11. Subsequently the applicant made a witness statement dated 8th October in which he refers to a conversation between the usher and counsel as to the obtaining of McGregor on Damages. He then includes a complaint that the judge interrupted during counsel's submissions. It is, of course, common for counsel's submissions to be fully tested by a judge. The judge can reasonably expect relevant points to be put in the skeleton argument before the matter comes before him, but it is part of the role of the judge to test the argument orally.
12. Miss Calder has addressed her submissions to me very forcefully today, and I have no doubt that she did the same before the judge. It appears to me that there is no substance in the suggestion that she was not afforded a fair hearing before the judge, who considered the matters in some detail.
13. In the course of his judgment he considered her point "that if the offer had been accepted the defendant would have incurred costs having the car repaired". She adverted to the point about the consequence of mitigation in her skeleton argument in which she sought to persuade the judge to reopen the matter on 13th July. A judge has a wide discretion whether or not to reopen a hearing which has already taken place. There have been a number of cases in recent times in which it has been held that only in exceptional circumstances would it be appropriate to do so, since there must be an end to litigation; and it is the duty of an applicant and counsel to put all matters before the judge in the first place.
14. In my judgment the judge had a wide discretion whether or not to permit the reopening of the matter on 13th July, and there is no conceivable basis on which this court could interfere with the exercise of his discretion. Equally, there is no conceivable basis on which this court would, on a full hearing, hold that Miss Calder was not fairly treated when she appeared before the judge on 11th July. The fact is that, by the express terms of section 54(4) of the Access to Justice Act, this court has no jurisdiction to entertain an appeal from a decision like that of Crane J in this case.
15. I accept the submission that the court does have jurisdiction to consider an application for permission to appeal against ancillary orders: see, for example, Clark v Inspector of Taxes and Parks [2000] 4 All ER 1 per Brooke LJ at paragraph 20 and Foenander v Bond Lewis [2001] 2 All ER 1019. Equally, it may be that the court has jurisdiction to consider a case based upon a failure by a judge to afford a party a fair hearing. I therefore accept the points on jurisdiction made by Miss Calder, but I am quite unable to accept the submission that there is any realistic prospect of a successful appeal to the Court of Appeal.
16. In essence this is an attempt to appeal against the decision of Crane J on the merits of the application for permission to appeal. For good or ill, Parliament has decided that this court should not have jurisdiction. I quite understand that that is very frustrating for the applicant - I am sorry about that - but there is nothing I can do about it. I am unable to help him out and the application must be refused; although I would like to thank Miss Calder for all her efforts on behalf of the applicant.
Order: Application dismissed