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 DERBY COUNTY COURT
(JUDGE STYLER)

		Royal Courts of Justice Strand London WC2 Thursday, 3 May 2001

1. LORD JUSTICE ROBERT WALKER: This is an application to reinstate an application for permission to appeal which was dismissed by the full court in the persons of Simon Brown, Waller and Clarke LJJ as long ago as 5 March 1999.
2. The application to reinstate has been made by an Appellant's Notice but this court has no power to hear an appeal against its own order. The Notice must be taken as an application to reinstate the application which was dismissed in the absence of the applicants, Mr Trevor Short and Mr Derek White.
3. This matter has a long history. It goes back to 18 October 1988 when Mr Stephen Solomon loaned or agreed to loan £10,000 to a company called Thai Silk (UK) Ltd ("Thai Silk"). It was a company owned and run by Mr White and Mr Short ("the directors"). Later (by a deed dated 23 January 1989) the directors became guarantors of Thai Silk's liability. That guarantee liability was called on in 1992 and on 11 June 1992 Mr Solomon commenced proceedings in the Derby County Court against Thai Silk and the directors.
4. The directors defended the proceedings on the ground that the guarantee was not supported by consideration and so was unenforceable. The case was to be heard at Derby County Court on 12 August 1994. Mr Short had arranged a business trip to the Far East in connection with the business of Thai Silk and he applied for an adjournment but that was refused after an application made on 14 July 1994.
5. The outcome was that Mr Short did not attend and give evidence at the trial. Mr Short's decision was no doubt a very difficult one for him to make but that was the decision that he made. That was not the only difficulty which the directors encountered in fighting the case. Mr White's legal aid certificate was withdrawn shortly before the hearing and in consequence he was not legally represented. By contrast, Mr Short had changed solicitors and had only recently obtained legal aid. He was represented but his counsel did not have much time to prepare for the case and, as I understand it, did not even have a conference with Mr Short because of his absence.
6. The judge, His Honour Judge Styler, decided the case adversely to the directors and gave judgment against them for the guarantee liability. They have a strong sense of grievance about that decision and have for over six years been attempting to get it reversed.
7. At that time they had an unrestricted right of appeal but they missed the time limit, although not by very much. Also they wished to adduce fresh evidence.
8. These applications for an extension of time and for permission to adduce further evidence were dismissed by Mr Registrar Adams on 13 June 1995 because, although the delay was not serious, he took the view that the fresh evidence could not be allowed and that the appeal would be hopeless. The directors had 10 days to appeal from that order but they did not do so for over 4 months. Their appeal was dismissed by Kennedy LJ on 27 March 1997.
9. The directors then renewed their application for permission to appeal before the full court but neither attended at the hearing on 17 December 1997 and the application was dismissed by the Vice-Chancellor and Potter LJ. I have been told this morning that the directors contend that one of them did not receive any notice of that hearing and, although the other accepts that notice was sent, he says that he did not receive it or at any rate did not receive it in sufficient time to be able to prepare usefully for the hearing. At the hearing in their absence the Vice-Chancellor expressed the view that the court could not possibly have been persuaded to allow the application, even if the directors had been present.
10. Nevertheless a different constitution of this court showed considerable indulgence to the directors when they again renewed their application on 21 October 1998. The court (consisting of Butler-Sloss LJ and myself) adjourned the application to be heard on notice, that is with the other side present. The directors understood that the court was directing that Mr Solomon personally should attend for cross-examination, but that certainly was not the intention. The intention was that Mr Solomon should have the opportunity to make submissions either in person or through his lawyers. The direction was that the appeal should follow if an extension of time and permission to adduce fresh evidence was granted.
11. The adjourned hearing was fixed for 5 March 1999. Mr Solomon was represented by counsel. Most unfortunately Mr White was taken ill that morning and was admitted to Northampton Hospital with a suspected heart attack. Mr Short telephoned the court from the hospital. In all the circumstances, including the fact that counsel instructed to argue the appeal was present, the court was not willing to adjourn the hearing generally but did put back the hearing until 2 o'clock in the afternoon.
12. Mr Short was not present when the case was called on in the afternoon. He has described how he encountered very heavy traffic and then had difficulty parking in London. He has said with considerable feeling that it was a day when everything went from bad to worse and I can readily accept that. He arrived at the Royal Courts of Justice some time after 3 pm. The hearing had finished at about 2.45 pm.
13. In those circumstances the court had to decide what was the fairest course in the interests of justice. When the case was called on at 2 pm that afternoon the decision at first instance had been four and a half years before and counsel for Mr Solomon was, as I have said, there to argue the appeal if it was permitted to go ahead. I accept that Mr Short did what he could to reach court after the most unfortunate incapacitation of Mr White. The fact is however that the court was faced with a difficult management problem in knowing what was the fair course in the interests of both sides and the administration of justice generally.
14. The court decided to proceed. Clarke LJ gave a very thorough and clear judgment, going through the whole history of the matter, running to some 12 pages. He concluded that an appeal would be hopeless. Waller and Simon Brown LJJ agreed. Waller LJ said in his short judgment:

"It would have been quite unfair to the plaintiff to adjourn this application. The plaintiff has a judgment after a trial many years ago. There has been delay upon delay in making applications to this court. Despite that delay, the merits have been considered by the registrar, then by Kennedy LJ and by the Vice Chancellor with Potter LJ. Finally, by the narrowest of margins the second and third defendants achieved an opportunity to make a further application for leave to appeal before this court inter partes. The plaintiff has instructed lawyers. They have come here from Nottingham, incurring considerable expense. Mr Short has been given every opportunity to be here. To put the plaintiffs to the further expense of an adjournment and reappearing would be quite wrong."

15. Brown LJ said towards the end of his short judgment (speaking of the hearing before Butler-Sloss LJ and myself):

"The court on that occasion was only narrowly persuaded to adjourn the matter. Robert Walker LJ speaking of a `sense of unease'. Were the matter to be adjourned yet again today, I too would feel unease, but it would be unease as to whether the plaintiff was obtaining his share of justice in all this. Proportionality and finality to my mind demand that this matter end today so that the plaintiff may at last be able to enjoy the benefit of his successful claim."

16. There matters had remained until nearly a year later when this present application was made. Mr Short has explained to me that he and his colleague were in doubt as to what should be done. It seems that probably it has been action taken by Mr Solomon to enforce his long-standing judgment which may have been a contributory cause to this further application. Even if I took a different view as to the exercise of discretion by the full court on 5 March 1999, it would not be right for me to interfere with the discretion exercised by the full court. As it is, I entirely agree with the way the court exercised their discretion. This is a matter in which the directors have a strong sense of grievance and even of injustice. Nevertheless they have exhausted every possible avenue of appeal and there must now be finality in the matter. Despite all their eloquent submissions to me I dismiss this application.
Order: Application dismissed.