England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(JUDGE GRAHAM JONES)

		Royal Courts of Justice Strand London WC2 Wednesday, 9th May 2001

Wednesday, 9th May 2001

1. LORD JUSTICE TUCKEY: Mr John Kitch applies for permission to appeal from two orders made in proceedings between him and his former bankers, National Westminister Bank, in the Cardiff County Court. The first order was made by His Honour Judge Graham Jones on 17th January 2000 when he dismissed the applicant's appeal from a deputy district judge's order striking out the applicant's defence and granting possession to the bank of his property at 24 Glebe Street in Penarth. The second order made by Judge Masterman on 25th August last year dismissed the applicant's appeal from another deputy district judge's refusal to grant a stay of execution of the earlier order for possession.
2. Proceedings between the applicant and the bank started in July 1992 when they sued him for the overdraft on one of his business accounts. This was a coal merchants business. He had another account with the bank for a solid fuel business whose overdraft was paid off with the proceeds of sale of another property in Glebe Street which the applicant owned, in early June 1991.
3. In these debt proceedings judgment in default of defence was obtained in December 1993 and the applicant's subsequent efforts to set this judgment aside were unsuccessful, first before a district judge in September 1994, and finally before this court in May 1996.
4. Bankruptcy proceedings followed and the applicant was made bankrupt in early 1997. Possession proceedings started in October 1998. 24 Glebe Street had been charged to secure the applicant's borrowings from the bank. He defended these proceedings on the same grounds as he had tried to set aside the judgment in the debt proceedings and that is no doubt why the deputy district judge struck out the defence. The applicant says that in the debt proceedings where solicitors were acting for him, his defence was only put in outline, but it did contain the complaint which I will come to in a moment. There was in fact no defence to the claim for possession because undoubtedly the applicant did still owe money to the bank and that debt was secured by the charge over his property. The order for possession was therefore made by the deputy district judge under the provisions of CPR 24.2.
5. On his appeal to Judge Graham Jones the applicant argued that CPR 24 was a breach of Article 6 of the European Convention on Human Rights. The judge said that he felt unable to deal with this point because the rules were introduced under statutory powers and, at the time he was dealing with it, the Convention was not yet part of English law. It is now. The applicant wants to argue this point in the Court of Appeal saying that if he cannot argue it here he will try and argue it in Europe, adding breach of Magna Carta on this aspect of the case for good measure.
6. The short answer to this point is that there is no conflict between Article 6 and the CPR. Article 6 gives a right to a fair and public hearing, but if (in the words of CPR 24.2) a defendant has no real prospect of successfully defending the claim against him there can be no objection to the matter being heard summarily. Indeed, there are good policy reasons why it should be so determined. Each of the hearings in which the applicant has been involved were public hearings. The Magna Carta adds nothing to these points.
7. The applicant's other ground of appeal and his principal cause for grievance in this matter is that the judgment in the debt proceedings has only been sustained by perjured evidence in the shape of an affidavit by his ex bank manager, Mr Doody, sworn in 1994 in opposition to his application to set aside the default judgment. The applicant says that the bank agreed in 1991 to use the proceeds of sale of his other property to pay off the overdraft on the coal merchants account. In his affidavit Mr Doody denies this, saying that although this was originally agreed the applicant agreed to a change at a meeting some time shortly before the overdraft on the other account was paid off. The applicant obviously feels very strongly about this but, as I attempted to point out to him, I do not see where this issue gets him. He owed money on both accounts, and the proceeds of sale were not large enough to pay off both overdrafts so he would have ended up owing the same amount of money to the bank however they had used the proceeds of sale, and it is clear that he was unable to repay what was still owing to them.
8. For these reasons I think there is no prospect of this court altering Judge Jones' order and therefore permission to appeal it must be refused.
9. The applicant's point about the other order is that he was entitled to a stay of execution as of right because he had appealed the first order, and, in refusing to grant a stay the deputy district judge and the county court judge acted ultra vires and unreasonably in the Wednesbury sense. This is not right. CPR 52.7 says that unless the appeal court or the lower court orders otherwise an appeal should not operate as a stay of any order or decision of the lower court. The court which is asked to stay an order has a discretion as to whether or not to do so. The district judge and the county court judge could have granted a stay but did not have to do so. Whether they did so depended largely upon their view of the applicant's prospects of successfully appealing the first order to this court. Judge Masterman carefully considered those prospects and decided that the applicant had no real prospect of success in this court. For reasons I have already given he was right to take that view. The decision to refuse a stay cannot therefore be criticised. There is no prospect of it being successfully appealed to this court and so permission must be refused in that case as well.
(Applications refused; no order for costs).