England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE BLOFELD)

		Royal Courts of Justice Strand London WC2 Tuesday, 1st May 2001

Tuesday, 1st May 2001

1. SIR PHILIP OTTON: This is an application for leave to reinstate an application for permission to appeal an order of Blofeld J dated 25th March 1997. By that order the learned judge refused to extend time for the applicant's appeal against the order of Master Lesley dated 17th January 1997, and awarded costs to the respondent.
2. The original application for permission to appeal the order of Blofeld J was automatically dismissed in March 1998 pursuant to the order of Deputy Registrar Joseph dated 11th February 1998. This was due to the applicant's failure to lodge bundles in compliance with the then Rules of the Supreme Court Order 59 Rule 9 within 21 days of that order.
3. The background to this application can be briefly stated. The subject matter of the action relates to a dispute between the applicant, Mrs Violet Cornish, and her neighbour, Mr Stephen Hutchins, the respondent. It arises out of the development of the respondent's property at Kirkside pursuant to his successful application for planning permission to the Devon County Council.
4. In essence Mrs Cornish contends that the respondent obtained planning permission to make substantial alteration to his property by using plans which misrepresented the height of the development. Thus the ultimate construction did not meet the original specifications as provided to the Council in Mr Hutchins' planning application.
5. Mrs Cornish contends that the respondent also indicated that he was owner of land which he did not own. Moreover, Mr Hutchins, it is said, took land from the churchyard which adjoins his property, clearly without permission.
6. Mrs Cornish has addressed me today in an admirable fashion with great restraint and with exemplary courtesy. She has made known to me the strength of her feelings which were shared by her husband until he unhappily passed away. She has also put before me a written submission and a skeleton argument which clearly set out her grounds of complaint against her neighbour.
7. In order to determine this application it is necessary to look briefly at the chronology of this action. On 28th October 1996 Mrs Cornish issued a writ and a statement of claim against Mr Hutchins. On 17th January 1997 the Master struck out material parts of the statement of claim on the ground that they disclose no reasonable cause of action. Not surprisingly, Mrs Cornish, who is, if I may say so, tenacious and jealous of her rights appealed against that decision to the learned judge.
8. Blofeld J heard the matter on 25th March 1997. On that occasion the appeal was out of time. It was necessary to obtain the learned judge's extension before the appeal could proceed. The learned judge, having considered all the circumstances of the case and in the exercise of his discretion, refused to extend the time sought which was of considerable length. The matter did not end there. The matter came before the courts on a number of occasions thereafter, and particularly when the applicant, no doubt by misfortune, was adjudged bankrupt and a partner of a well-known firm of accountants was appointed as trustee in bankruptcy of her estate with effect from 7th December 1999.
9. That is part of the history of the matter. However I wish to emphasise that knowing of this state of affairs I have not let that influence in any way the future conduct of these proceedings, and indeed, even without the permission of the trustee in bankruptcy Mrs Cornish has presented her case to me today, and obviously I have not raised any objection to her doing so and have listened to her, that notwithstanding.
10. There are a number of related actions arising out of these matters, notably an application for judicial review against the Devon County Council and against the Exeter Consistory Court, and the Chief Constable of Devon and Cornwall. In the latter action judgment was given by the Court of Appeal on 14th October 1998 when her application for judicial review was refused.
11. Today she advances a number of arguments and reasons for making the application for leave. First, she says that, being a litigant in person, she was not wholly familiar with the law and legal procedure. At one stage she asserted that she was unaware that "the system included an appeal factor." That may be have been her state of mind at one stage but it is clear from the way that this matter has progressed she is well aware of her right to appeal. She also says that the judge failed to hear her evidence and was not therefore qualified to make the order as to costs.
12. Mrs Cornish is also critical of the decision of Steel J on another occasion when finding against her on an issue then before that judge. In essence, she says the respondent has been economical with the truth by pen and by mouth such as to amount to fraud. Relying upon the well-known dicta of Lord Denning she reminds me that no one should be allowed to benefit from his fraud.
13. The essence of her argument is that notwithstanding the time which has elapsed there was still under the rules of the Supreme Court power under Order 3 to allow this application if the circumstances so required. That rule has now been overtaken by the Civil Procedure Rules, and now by Rule 3 this court does have a wide discretion to accommodate an application such as is made today. In particular Rule 3.1 says:

"(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

2. Except where these Rules provide otherwise, the court may -

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)."

14. That, if anything, gives this court a wider power than the one to which Mrs Cornish has referred.
15. Mrs Cornish also asserts that by virtue of the flawed decision of the county council in relation to the planning application she has suffered a violation of her European Convention rights. By that I take it she means her rights as to her property, and also, by inference, her right to a fair trial by Article 6.
16. With that background I have to consider how this court should proceed. I have come to the conclusion that the chronology which I have set out demonstrates that the proceedings initiated by Mrs Cornish have been burdened consistently by out-of-time applications. Whilst it is true that she is a litigant in person and therefore unlikely to be well-acquainted with court procedure having not had the advantage of legal representation to advise her, it is clear from the court file that the applicant has been made aware of the relevant time limits which applied to her case. Indeed the sheer volume of applications made by her should have afforded her more than enough experience of the importance of abiding by time limits imposed by the court. The applicant has been pursuing this matter for four years. The original claim was struck out in part in January 1997 and the remainder of her claims struck out in July of that year.
17. I have come to the conclusion that the applicant has not provided any valid ground to justify the court reinstating the application for permission to appeal nearly three years after the application was dismissed. It was her own failure to comply with the unless order which was made clear on its face as to its consequences that resulted in the dismissal of the action as long ago as 1998.
18. In reaching my conclusion I also have to take account of the effect of the Civil Procedure Rule 52, paragraph 13 which provides as follows:

"Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal.

(2) the Court of Appeal 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."

19. In effect what Mrs Cornish is seeking to do is to re-open Blofeld J's decision which was itself a decision on appeal from the Master.
20. In those circumstances I have come to the conclusion that the permission, if granted, would not raise an important point of principle or practice and that there is no other compelling reason for the Court of Appeal to hear it.
21. In those circumstances, and albeit with some reluctance and enormous sympathy for the way that Mrs Cornish has suffered over the years, I must refuse the application. Mrs Cornish will be supplied with a copy of the judgment at public expense.
(Applications dismissed; no order for costs; transcript to be provided to the claimant at public expense).