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 KINGSTON UPON THAMES COUNTY COURT
(HIS HONOUR JUDGE HAGUE)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 5 April 2001

1. LORD JUSTICE PETER GIBSON: The first claimant, Mr Marya, is a director of the second claimant, Sanray Export Services Limited ("Sanray"), which is a clothing wholesaler retailer. It was registered for VAT with effect from 3 July 1990.
2. Sanray had a history of poor compliance with its VAT obligations. The defendants, the Commissioners of Customs and Excise, imposed surcharges which Sanray has appealed. The defendants gave instructions to their solicitors, Dibb Lupton Alsop, to proceed with the winding-up petition against Sanray. Two days later an officer of the defendants agreed with Mr Marya that Sanray should be allowed time to pay its admitted debt by instalments over a period and that the advertising of the petition would be withheld. But, through what the defendants say was an administrative error, the petition was advertised. Mr Marya, not surprisingly, protested. The defendants apologised. They undertook to obtain, and they did obtain, the prompt dismissal of their petition on the hearing date for the petition. They also offered to write to Sanray's bank to explain what had occurred. They offered a small sum (£200) by way of consolatory payment, but the claimants were not content.
3. On 11 February 2000 the claimants commenced proceedings in the Kingston-upon-Thames County Court against the defendants. They alleged that the advertising of the petition was deliberate and in collusion with the defendant's solicitors, who are also the solicitors of National Westminster Bank (with which bank the claimants are also in dispute). They allege that it caused damage not only to Sanray but also to Mr Marya. Damages in excess of £100,000 were claimed.
4. The defendants applied to strike out the claim. That application came before District Judge Dimmick. Both the claimants and the defendants were then represented by counsel. On 17 May 2000, the district judge struck out the claim as having no real prospect of success, but he gave leave to the claimants to serve and file by 7 June an amended statement of case to show a real prospect of success, in which case the claim would be reinstated. No amended statement of case was served or filed. So the claim remained struck out.
5. The claimants appealed. The hearing was fixed for 30 June but two letters were written by Mr Marya to the court. In the first, on 12 June, Mr Marya thanked the court for listing the case on 30 June. On 19 June Mr Marya wrote saying:

"....we wish that our Case may kindly be heard on paper on 30 June 2000 before His Honour Judge Bishop."

6. No response was sent to that letter but neither did Mr Marya make further inquiry of the court as to whether his unusual request had been granted. The appeal came on for hearing before His Honour Judge Hague QC at the time and date which had been fixed. The defendants were represented at that hearing. The claimants did not appear. Judge Hague heard submissions on why the claim was unsustainable. He was told that Mr Marya had asked for the appeal to be dealt with on paper. But the judge then proceeded to dismiss the appeal. His order records that he had read the pleadings and the appellant's notice.
7. The claimants applied to set aside Judge Hague's order as having been made in the absence of the claimants. That application was heard by His Honour Judge Morgan on 8 September. Mr Marya appeared for himself and Sanray, counsel appeared for the defendants. The judge refused the claimant's application. In his judgment, the judge considered whether the claimants had a good reason for not attending the hearing fixed in front of Judge Hague. He held that the claimants should not have assumed that the appeal would be dealt with on paper merely because they had requested it by letter. The judge then considered whether the claimants had a reasonable prospect of success. He went through the skeleton argument of counsel for the defendants which had been used before the district judge. He found that the points taken by the defendants in support of the striking out of the claim were correct.
8. The claimants now apply for permission to appeal out of time. The appellant's notice was filed on 22 November 2000, over two months' late. The excuse for the delay is that an application was made to the county court on 15 September for permission to appeal and that the reply was received on 21 September. That does not explain why two more months were allowed to elapse before the appellant's notice was filed.
9. Mr Marya appears before me in person on behalf of the company as well as himself. He tells me that the delay occurred because he was in Canada. But he acknowledges that he had been told on 21 September that the application needed to be made to this court. No acceptable excuse has been put forward to explain the delay. However, on applications of this sort, the court will always take into account whether the prospects of success on an appeal are such that the delay should not be held against the applicant.
10. Mr Marya has put, in the appellant's notice, three grounds of appeal. The first is that:

"His Honour Judge did not take into account the basic facts of the case that the district judge summarily dismissed the claim."

11. That is an impossible ground. The judge was well aware that the district judge had struck out the claim pursuant to CPR Part 24.2 because that is what is recorded in the second sentence of his judgment. The second ground is:

"The claimant was not afforded the opportunity to cross-examine the defendant's staff as alleged."

12. Again, this is hopeless. The whole purpose of the jurisdiction to strike out is to get rid of cases which should not be taking up the time of the court because they have no prospect of success. That is done without hearing oral evidence. A claimant is not entitled to a trial of his claim merely on the basis that he hopes something will turn up in cross-examination.
13. The third ground is:

"The claim does show that there are issues of fact and law which have to be determined by the Honourable Court."

14. The question for the district judge was whether there were issues which were sustainable and so which should go to trial. He held that there were not. That issue was again considered by Judge Hague on appeal. He agreed with the district judge that that issue was one of the matters considered by Judge Morgan. He, too, agreed with the district judge. If permission to appeal were given, then the substance of the claim of the claimants would be considered for the fourth time. By Part 52.13, for permission to be given for second appeals this court now must consider that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the court to hear it. By analogy, the same restrictions should apply to the present case, which is, in effect, an attempt to have a third appeal. I can see no point of principle or practice of any importance raised by this case, nor is there any other compelling reason why the court should hear the appeal. In my view, it is plain that the appeal would have no real prospect of success.
15. Mr Marya has also applied to adduce further evidence. He wanted three pieces of evidence to be adduced. One was a statement from a Mr Brodie of the defendants. No such statement, so far as I am aware, exists. In effect, Mr Marya wants an order compelling Mr Brodie to give evidence to the claimants. I am afraid that is a hopeless application. There is no such power in the court to make any such order. Second, Mr Marya requires a without prejudice letter written by the defendants to be in evidence. I have looked at that letter. That letter does not advance the claimant's case in any way. It makes clear that it was through an administrative oversight that the petition was advertised. That does not assist the claimants; they had to go further and shows that there was a deliberate action by the defendants in causing the petition to be advertised.
16. The third document which Mr Marya asked should be adduced is the transcript of the judgment of the district judge. So far as I am aware there is no such transcript. It was for the claimants to produce notes of the judgment if they wished to rely on it. It seems highly unlikely that that would be of any assistance whatever to the claimants because, as I have indicated, the district judge decided against the claimants.
17. In these circumstances, the application for further evidence to be adduced is also hopeless and must be dismissed.
18. For these reasons, I must dismiss this application.
Order: Application dismissed.