England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LUTON COUNTY COURT
(His Honour Judge Farnworth)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

1. LORD JUSTICE MANCE: This is an application by Mr Scott for permission for a second appeal under CPR 15.13. It requires not only permission from this court but it is provided that this court will not give permission unless it considers that (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court of Appeal to hear it.
2. The background is lengthy but I can take it shortly. As long ago as 1999 Mr. Scott acquired restaurant premises from the defendants. He maintains that he has a claim relating to defective equipment in the premises, and he says that there was an undertaking that it would be working equipment. He had other claims but they were not allowed to be pursued by Judge Serota in December 1999. This particular claim in respect of five items of equipment was allowed to be pursued although, on the face of the order, only on terms as to payment into court of £12,500. Mr. Scott says that the judge indicated orally that he would not have insisted on that condition, but it is irrelevant whether or not that is correct because the £12,500 was paid into court. The order of 21st December allocated the claim expressly to the fast track, although, irregularly, it did not identify a trial window. It ordered standard disclosure and also exchange of witness statements by the parties by 4 pm on 1st February. It gave liberty to apply for permission to call expert evidence, dispensed with the filing of listing questionnaires and ordered the parties to apply for a trial date accompanied by dates of availability after 15th February 2000, with a time estimate of one day.
3. On the same day an order was made relating to the withdrawal of a bankruptcy petition which the defendants had brought against the claimant. That was linked to the first order by the second order, which provided that the defendants would procure the dismissal of the bankruptcy petition as soon as reasonably practicable after Mr Scott had paid the £12,500 into court under the first order. In point of fact, the bankruptcy petition was not withdrawn, it appears, until the end of February. Mr Scott only knew of it on 1st March. It seems that he was only later (he suggested on 29th March) actually given a copy of an order. There may even then have been some mistake in the terms of the order. Be that as it may, he himself did not comply with the order for exchange of any further witness statements, if he intended to rely upon any, either by 1st February or at any subsequent date. On 11th January a trial window was fixed by the court. Mr. Scott accepted before the circuit judge on 11th July 2000 that he knew of that. The trial window was 22nd March to 12th April.
4. As regards the fixing of a date, what happened next was that on 18th February Mr. Scott wrote to the Aylesbury Court where the December hearing had taken place, in view of the uncertainty about the bankruptcy petition's withdrawal, and said this, in view of that uncertainty:

"As per order by Judge Serota we place on record that as of today's date we have not been satisfied that the defendant has complied with this order.

We ask that you deal with all the matters arising from the order of Judge Serota prior to any dates being set for trial."

5. The response to that on 1st March came from the same court:

"We write to advise you that according to the order made by His Honour Judge Serota on 21st December 1999, this matter will not be listed until the parties apply for trial and provide dates of availability. We would also ask whether or not item 1 on the order has been complied with and you have paid the sum of £12,500 into court."

6. That was a strange letter, it may be thought. The Aylsebury Court did not direct its attention expressly to the fact that correspondence should take place, not with it but with the trial court, which was Milton Keynes, and it did not apparently know about the intermediate order of 11th January giving a listing window, or indeed about the payment into court which had been made long since. Mr. Scott says that he took that order as an indication that nothing was urgently required in the meanwhile. He only responded to it on 31st March, when he wrote a letter to the court at Aylesbury again, saying that he was available for trial after 15th May. He says that he took that date because he wanted to get matters in order, including any further evidence. He pointed out that £12,500 had been paid into the Milton Keynes County Court on 21st December and he suggested that all dates in Judge Serota's order should be re-done in view of the delay in dealing with the bankruptcy petition. He said:

"I await your considered response."

7. There was, as far as I know, no relevant response.
8. What I am prepared to accept, and what the Circuit Judge was prepared to accept, although the District Judge it seems was not, was that a notice sent, in the meanwhile, on 10th March to the parties by the Milton Keynes Court specifying a precise trial date, namely 10th April, was not received by Mr. Scott. I am also prepared to accept for present purposes that only on 5th April did Mr. Scott learn of the date.
9. However, I must say that I find the position generally confusing because it is clear from the transcript of the hearing of 11th July before His Honour Judge Farnworth that counsel was able to produce at least one further document, which I do not seem to have despite requests. That is at page 25 a document dated 31st March and actually faxed on 1st April, apparently pointing out to someone, presumably Mr Scott, a trial window and requiring a formal application to vacate. It seems to me that that is a document that could be of some materiality. I have not got it. I proceed on the basis that Mr Scott only knew of the 10th April date on 5th April. He wrote to the court seeking an adjournment. He received a reply on 7th April saying that he should attend on 10th April to seek an adjournment if he required one. He wrote on 10th April, saying that that was impossible because he was committed elsewhere to open a restaurant on a date set many weeks ago. He said that he had to make a commercial decision:

"It was not a flippant disregard for the court, but a very difficult decision to make."

10. He sought an adjournment, sending that letter to the court. That adjournment was refused by the District Judge on 10th April. He appears to have taken the view that Mr. Scott must have known of the date of 10th April from the notice of 10th March. Mr. Scott appealed that refusal to the Circuit Judge who dismissed the appeal on 11th July.
11. Following the refusal of an adjournment on 10th April the District Judge went into the evidence before him. He dismissed Mr Scott's claim relating to the equipment and he gave judgment on the counterclaim. Mr. Scott now seeks a second appeal to this court and says that what has happened is fundamentally unfair. He would, if he had been there in person, have been able to explain matters. He would, if he had been given further time, been able to produce any necessary material. At times, his submission seemed to be that the existing material was good enough. If that were the position, then it might be said against him that the District Judge had considered the existing material. However, it is fair to add that there is usually some benefit in being there in person to be able to deal with the factual detail of a claim and, here, to explain and put invoices in context. Mr. Scott now tells me that there are further invoices showing that he had to replace material.
12. The Circuit Judge, on the face of it, considered the matter carefully. I must confess that I have come at times close to the view that this application should be dismissed outright. I find it difficult to see how it raises an important point of principle or practice, and "other compelling reason" is a relatively high hurdle. The basic facts which the District Judge took into account were that there was non-compliance with the December order, a complete failure by 1st February or at all to produce further witness statements, knowledge of a trial window fixed for 22nd March to 12th April, to which Mr. Scott does not appear to have responded and which he does not appear to have taken into account in his letters to the court, particularly his letter of 18th February or his letter of 31st March, knowledge, by, at the latest, 5th April, of a trial date of 10th April, and failure to attend or produce further evidence by that date, and, one might add, failure at any subsequent date to supplement his original evidence (even now, I might add, before me), and, finally, absence of any real thought given to the counterclaim so far as it overtopped the claim. There can be no question of set off. It seems to me that that latter point is one which, even today, has not been dealt with. Mr Scott has not produced any sensible explanation as to how he can defeat the counterclaim over and above the claim. The Circuit Judge in those circumstances, in the exercise of a discretion, refused the appeal and upheld the District Judge's conclusion, although the District Judge proceeded on a slightly different factual basis, since he assumed knowledge of the original notice of 10th March listing the case for 10th April.
13. Against that, however, Mr. Scott has made the point that the 1st March letter from the Aylesbury Court is an odd letter. He says that it is one that led him down a false path and led him to think that there was no urgency. One can to some extent understand that, in the case of a litigant in person, although I still think that he should have gone back and pointed out that there had been a trial window. He should not have gone back as late as 31st March and he should not have put forward a date after 15th May. However, he says that he was led to understand from the 1st March letter that the trial window was not significant. Clearly, he was entitled to adequate notice of any trial date. That is the court's practice and that was the aim of sending out a letter on 10th March. What can be accepted is that he did not receive that and therefore, in reality, he had no more than a few days notice of the actual trial date. What the Circuit Judge may not have focused on sufficiently is the dilemma the applicant put before the court on 10th April. The alternative commitment he had fixed many weeks ago was of a nature which, I am able to accept, it would have been very difficult for him to omit to attend, however great his respect for the court and his wish to attend. It was his own opening of a new £400,000 restaurant. The judge may have taken that insufficiently into account. The judge said that it was entirely Mr. Scott's own decision not to attend court. But if Mr Scott had received proper notice, then he would have have been able to draw this conflict of dates to the court's attention, or arrange a different opening date, well in advance.
14. In the circumstances and also because I am somewhat unclear about what the precise course of events is in early April 2000, and there appears to be at least one further document which is not before me, I think that this is an application which requires further consideration with both parties present. I am unable to say that it raises any important point of principle or practice. It is possible that there may be thought to be a sufficient case of injustice to constitute a compelling reason for an appeal. It is a fact specific case and a somewhat unusual one in view of the court's communication of 1st March and the apparent loss in the post of the court's communication of 10th March.
15. Any adjournment of the matter for a hearing between the parties must be limited to the claim. I see no basis on which any excess of the counterclaim over the claim could merit permission to appeal. I limit the adjournment to that extent and refuse permission to appeal in respect of the excess of the counterclaim over the claim.
16. I would make clear that there are a number of other points in Mr. Scott's written documents which are misguided and in respect of which I would refuse permission. Taking page 23, where he makes points on the order of 13th April, in relation to points 4, 5 and 6 of that order, as I explained to Mr Scott, they are misguided because the £12,500 is to be paid out in satisfaction of the judgment herein and the interest accrued on it will have gone towards the sum of £26,000 odd referred to in paragraph 25 of the order of 13th April. The point made on page 23 appears to me misguided. I do not give permission in respect of that. Point 8, page 9, answer to section 7: I see nothing in the complaint that Judge Tetlow did not have before him Mr. Scott's supplementary witness statement. He refers to a supplemental witness statement of 22nd September 1999 in, for example, paragraph 40 of his judgment.
17. The only point which merits further attention, with the assistance of counsel for the respondent, is the question whether it was proportionate in the circumstances to refuse a further short adjournment, depriving Mr Scott of the opportunity of being there in person and of producing further material. It is with some misgivings that I give this further opportunity. I think that matters should proceed in that way as regards the amount of the claim only, and not, as I say, as regards the excess of the counterclaim over the claim. I therefore stand over the application for a hearing between the parties before a two judge court, and with the appeal to follow if permission is granted.
Order: Application adjourned as per judgment for inter partes hearing before a two judge court, with appeal to follow if permission granted. (Order not part of the judgment of the court)