England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MEDWAY COUNTY COURT
(HIS HONOUR JUDGE RUSSELL-VICK QC)

		Royal Courts of Justice Strand London WC2 Thursday, 8th March 2001

1. LORD JUSTICE JONATHAN PARKER: This is a renewed application by the defendant in the proceedings, Mr Jayesh Ganatra, for permission to appeal against an order made by His Honour Judge Russell-Vick on 14 June 2000 whereby he refused to allow Mr Ganatra an extension of time in which to serve an appellant's notice appealing against an order made by District Judge Caddick on 6 April 2000. By that order, District Judge Caddick had struck out Mr Ganatra's Defence and Counterclaim in the action on the ground that it disclosed no reasonable grounds for defending the claim or for counterclaiming. I refused permission to appeal against Judge Russell-Vick's order on the papers on 19 December 2000.
2. In refusing Mr Ganatra's application, Judge Russell-Vick went into the merits of the matter and concluded that the proposed appeal, were it to be pursued, would stand no chance, alternatively no real chance, of succeeding. In the circumstances, I am satisfied that this Court has jurisdiction to entertain Mr Ganatra's application for permission to appeal against Judge Russell-Vick's order on the footing that this is in substance a second appeal.
3. Mr Ganatra has not appeared today to make his application nor is he represented. The application was originally listed to be heard on 8 February of this year but at Mr Ganatra's request I adjourned it to be relisted after 28 days. Mr Ganatra had requested an adjournment on the ground that he would be unable to attend the hearing due to ill health. He suffers from a chronic condition known as post viral fatigue syndrome. When agreeing to adjourn the application, however, I made it clear that if Mr Ganatra were unable to attend the adjourned hearing, the likelihood was that his application would be considered in his absence. A few days ago Mr Ganatra wrote to the Civil Appeals Office requesting a further adjournment of "some six months in the first instance". In his letter he states:

"I regret to reiterate to the court that in the past 18 months or so, since the beginning of this important and complex legal battle, my health has deteriorated more than at any time since I was eventually signed off work in March 1994. I am simply unable to continue as I have and on medical grounds would be clearly advised not to do so.

The cause of this deterioration can be fully and squarely put down to the effort (indeed over-exertion) required in attempting to deal properly with this litigation. I also reiterate that as well as being significantly debilitated by illness, I am further disadvantaged by not being legally represented, by having to act in person, and without the benefit of any significant legal education or training."

4. Later in the letter he says:

"The substantial deterioration of my already poor condition noted over the past 18 months or so, is a direct result of persistently continuing to exceed my steady state stamina level week after week and month after month. During this time, my steady state stamina has dropped from around 20% to some 10% - a fall of 50%. This deterioration cannot, and on medical grounds should not, be allowed to continue.

Again, evidence has been supplied to the court that regarding this litigation, it is Dr Jenkins' view that it 'has taken its toll' on me and he does not believe that I am 'in a fit state to cope with this'."

5. Whilst I naturally sympathise with Mr Ganatra and fully accept what he says about his present state of ill health, I am afraid that a further adjournment, still less an adjournment for six months or more, is in the circumstances out of the question. What Mr Ganatra is effectively seeking is that the case should be put on hold for a substantial and indefinite period in the hope that in time he may be fit enough to take up the case again. That, however, is simply not feasible. Not only is it of importance to the efficient working of the civil justice system, but it is also in the interest of other party or parties in the case that applications for permission to appeal are dealt with as expeditiously as is reasonably possible. In this case the claimants, who would be the respondents to the proposed appeal, are entitled to know where they stand. I, accordingly, refused Mr Ganatra's request for a further adjournment. I therefore proceed to consider his substantive application for permission to appeal in his absence.
6. The background to the matter is briefly as follows. In June 1997 Mr Ganatra retained the claimants in the action, Messrs Mincoff Science & Gold, Solicitors, to act in his behalf in the matter of a possible claim in negligence against Mr Ganatra's medical advisers. Mr Ganatra instructed the claimants that he had for some years been suffering from a condition known as post viral fatigue syndrome, and that since about May 1993 he had consulted no less than three general practitioners and a consultant physician. His contention was that his medical advisers had been guilty of negligence, and he wished the claimants to act for him in claiming damages against them. The claimants accepted Mr Ganatra's instructions, and carried out work on his case. In the course of so doing, the claimants obtained, it would appear, two independent medical reports.
7. On 5 January 1998 the claimants tendered a bill for their outstanding fees. Mr Ganatra objected to the bill, contending that the claimants had not properly carried out his instructions and that they themselves were guilty of negligence. It appears that Mr Ganatra complained about the claimants' conduct of the case to the Office for the Supervision of Solicitors, which took no action in the matter. Mr Ganatra then complained to the Legal Services Ombudsman concerning the decision by the Office for the Supervision of Solicitors to take no action. It appears further that the Legal Services Ombudsman considered that the decision which the Office for the Supervision of Solicitors had reached was a reasonable one.
8. At all events, on 20 July 1999 the claimants commenced the present action in the Newcastle upon Tyne County Court issuing Particulars of Claim claiming a balance of fees outstanding amounting to £981.30 together with interest. On 11 February 2000 Mr Ganatra delivered a Defence and Counterclaim. In his Defence he contended that he was not liable to pay the claimants' outstanding fees. In his Counterclaim, he alleged that the claimants had been guilty of negligence in carrying out his instructions and claimed damages in the region of £250,000. The particulars of negligence are set out in paragraph 28 of the Defence and Counterclaim. They include failure "to safely keep pertinent correspondence from the defendant", "failure to make adequate telephone attendance notes of conversations with the defendant", "failure to reasonably follow instructions to it as discussed with defendant", "failure to keep the defendant adequately informed of the progress of the claim", and other allegations in the same vein.
9. An allocation hearing was fixed for 6 April 2000. The Notice of Allocation Hearing stated that at the hearing the Court would consider the prospects of success of Mr Ganatra's counterclaim. Mr Ganatra attended the allocation hearing which took place on 6 April 2000 before District Judge Caddick, and which lasted almost two hours. Mr Ganatra complains firstly that he was not aware that the Court would consider the prospects of success of his counterclaim at that hearing, and secondly that due to his physical condition he was unable to concentrate during a hearing of that length. (It is to be noted that the hearing had been estimated to last only one hour.)
10. After hearing argument, the District Judge concluded in the exercise of his case management powers under the Civil Procedure Rules that the Defence and Counterclaim disclosed no reasonable grounds (a) for defending the claim or (b) for bringing the counterclaim. He accordingly struck out the Defence and Counterclaim pursuant to rule 3.4(2) of the Civil Procedure Rules and entered judgment for the claimants in the sum of £900 plus £155 interest plus £219 costs. He also awarded costs against Mr Ganatra which he assessed at £820. He accordingly ordered Mr Ganatra to pay the total sum of £2,094 to the claimants by 18 April 2000.
11. On 20 April 2000 Mr Ganatra applied for an extension of time in which to serve an appellant's notice appealing against District Judge Caddick's order. That application came before Judge Russell-Vick on 14 June 2000 when, as I indicated at the start of this judgment, he refused to allow Mr Ganatra an extension of time for appeal, concluding that the appeal would have no prospect, alternatively no real prospect, of success.
12. Although, as I said earlier, I am naturally sympathetic to Mr Ganatra's physical condition, I have to say that I can see no arguable ground for the proposed appeal against District Judge Caddick's order, and accordingly I can see no grounds for challenging the order which Judge Russell-Vick made. I can, for my part, see nothing in the material before me to suggest that the claimants were negligent in any way. It follows that, like Judge Russell-Vick, I can see no prospect of an appeal against District Judge Caddick's order succeeding.
13. For completeness I should add that, as I said when refusing permission on the papers, the proposed appeal raises no important point of principle or practice nor is there any other compelling reason why the Court of Appeal should hear it. For those reasons I dismiss this application.
(Application dismissed)