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 GLOUCESTER COUNTY COURT
(JUDGE HUTTON)

		Royal Courts of Justice Strand London WC2 Thursday, 20th December 2001

Thursday, 20th December 2001

1. LORD JUSTICE POTTER: This is an appeal from the decision of his Honour Judge Hutton dated 4th September 2000 dismissing the application of Mr. and Mrs. D. B. John (the appellants) for leave to appeal the decision of Deputy District Judge Ing dated 20th April 2000, whereby he set aside an order for recovery dated 9th March 2000 in the sum of £2,631.32 plus £280 costs made in favour of the respondent, Mr. Fletcher, against the appellants, on the condition that the appellants pay into court by 4 p.m. on 2nd May 2000 the sum of £2,631.32 to abide the event. Permission to appeal was granted by this court on 8th June 2001 by Gibson L.J.
2. The parties are in dispute regarding the non-payment of an invoice for the sum of £2,631.32, representing the outstanding amount from a total account of some £6,400 owed for building work completed on the appellants' property by the respondent. The respondent issued a County Court summons on 25th March 1999. The total claimed included a court fee and was therefore a slightly greater sum than the balance owing, amounting to £2,711.32.
3. The appellants disputed the outstanding sum on the basis that the work completed by the respondent was defective in a number of respects. They made a counter-claim for the sum of £4,011.53. That counter-claim was filed on 19th April 1999.
4. Judgment was given against Mr. John on 27th April 1999 for the amount of £2,711.32. That judgment was set aside on 9th June 1999 by Deputy District Judge Moule, sitting at Gloucester County Court, when he gave directions for trial. However, at the subsequent hearing the appellants did not attend and a further order for recovery for the sum of £2,911.32 was made against the appellants by his Honour Judge Wilkinson on 9th March 2000.The appellants then made an application (as they put it) "contesting the outcome of the hearing of 9th March 2000" on the ground that they had been unable to attend due to the ill health of Mr. John. That application was contested. Mr. John did not have a medical certificate and the respondent asserted that Mr. John had been seen actively refereeing a football match two days later. It is not quite clear from the transcript before us what stand the appellants were taking upon that allegation before the District Judge; but certainly it appears that the matter was in issue.
5. So far as Deputy District Judge Ing was concerned, as the judge hearing the application, he did not deem it necessary to adjudicate on that question. He made his order on 20th April 2000 saying:"There is nothing in the judgment that the Deputy [District Judge Wilkinson] made that I could complain about, but the fact remains that they [the appellants] were not [present] and they did not have their say."
6. However, Deputy District Judge Ing imposed the term that the order would only be set aside on the condition that the appellants pay £2,631.32 into court by 4 p.m. on 2nd May 2000.
7. The transcript before us shows that Mr. John (or it may have been his wife) clearly stated in court at that time that there would be no problem in complying with that order, and that order was accordingly made. However, the appellants did fail to comply and on 2nd May 2000 they applied for leave to appeal the order of his Honour Judge Ing on the ground that they were unable to raise the necessary monies to make the requisite payment into court.
8. His Honour Judge Hutton dismissed the appellants' application on 4th September 2000. The transcript of the proceedings before him has been placed before us. He dismissed the application for leave to appeal the order of Deputy District Judge Ing on the ground that there was no evidence that Mr. John was too ill to attend the hearing of 9th March 2000. That came about because of a misunderstanding by the judge, largely caused by the inadequacy of Mr. John's presentation.
9. It appears from the opening words at the commencement of the hearing that the judge was not told and did not understand what the defendants were trying to do. He asked Mr. John whether he wanted leave to appeal against the order of 9th March 2000, to which Mr. John replied: "That's right". That was an unfortunate confusion. The order of 9th March was of course not the order of Judge Ing imposing the condition but the earlier order of Deputy District Judge Wilkinson, made in the appellants' absence, and already set aside by Deputy District Judge Ing's order. The judge continued: "Where you failed to appear before the district judge?", to which Mr. John replied: "That's right, yes..." The error as to which order was under appeal was thus compounded.
10. The judge thereafter continued to ask questions of both sides and indeed heard evidence about why the defendants did not appear on 9th March. The judge thought he was considering whether he should grant leave to appeal from the earlier order. There was no mention by either side of the order made on 20th April or to the condition of payment in then imposed by Deputy District Judge Ing. The judge was impressed by evidence that Mr. John had been fit enough to referee a football match on 11th March, two days after the day when the defendants say he was too ill to attend in court. When he gave judgment, it is apparent that he continued to think that on 9th March Deputy District Judge Ing had made the order and there was no mention of the order of 20th April. The judge said there was no evidence that Mr. John was too ill to attend on 9th March and so dismissed the application for leave on those grounds.
11. I am satisfied that the decision of his Honour Judge Hutton to dismiss the appellant's application for leave to appeal the decision of Deputy District Judge Ing was based on a fundamental misconception. As a result, his Honour Judge Hutton did not deal with the application before him regarding the inability of the appellants to pay the monies into court; he simply dealt with the same point heard before Deputy District Judge Ing regarding the failure of the appellants to attend the 9th March hearing when the order for recovery was made. Deputy District Judge Ing, having already considered that matter, nonetheless concluded that the adjudication order should be set aside.
12. In giving leave to appeal Gibson L.J. said this:

"What ought to happen now? In one sense Mr. John has only himself to blame for accepting before the judge that he was seeking leave to appeal from the order of 9th March and in not drawing attention to the order of 20th April. The defendants may also be to blame for the wording of the application of 2nd May for leave to appeal, when it may be that they did not need any such leave... However, even if the defendants are to blame, they are litigants in person and it seems to me to run counter to the overriding objective of the Civil Procedure Rules to deal with a case justly ... not to allow them the opportunity to persuade the court that the judge's order, made under a complete misconception, should be set aside".

13. He went on:

"I should make clear that, on the appeal hearing, this court will not be deciding on the nderlying merits of the dispute between the parties over the work done by Mr. Fletcher but will merely decide whether the judge's order should be set aside and the case remitted to the county court so that that court can determine whether District Judge Ing's order of 20th April and its condition should be set aside or varied."

14. It is in fact lamentable that so much delay should have been created in a small claims case where the claimant has done his best to bring his claim for just under £3,000 to trial for the best part of two years but has been frustrated by a series of failures to appear by the appellants. Nonetheless, I consider that the appeal should be allowed and that the appellants' application for leave to appeal the order of Deputy District Judge Ing dated 20th April 2000 should be restored for rehearing before the County Court Judge at the earliest possible time.
15. While the substantive issue will be whether Deputy District Judge Ing was right to impose the condition of payment upon the Johns in the light of their conduct, their means and in the light of the judge's overall duty to be fair as between the parties, we feel it necessary to make clear and underline to Mr. John that in our view Deputy District Judge Ing did not himself adjudicate upon the question of whether or not Mr. John had good reason be absent from the hearing in relation to which he had failed to produce a medical certificate. The circumstances of that event will thus be under consideration by the judge at the rehearing as part of the exercise of his overall discretion in relation to what order should now be made. We can only express the view that the matter should be dealt with swiftly, and without any failure to appear on the part of Mr. John or his wife or any other further reason for delay being advanced by Mr. John.
16. LORD JUSTICE RIX: I agree.
ORDER: Application allowed. ---------