England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UXBRIDGE COUNTY COURT
(His Honour Judge Marcus Edwards)

		Royal Courts of Justice Strand London WC2 Tuesday, 27th March 2001

1. LADY JUSTICE ARDEN: In this application, 2000/6417/B2, Mr. Marya appears in person to make an application to reinstate an application for permission to appeal against the order of His Honour Judge Marcus Edwards dated 21st January 2000, dismissing the claim which Mr. Marya had brought against Southall Properties Limited for damage to certain stock which he had left on their premises.
2. The history of this matter is that an application for permission was made and was heard by Rix LJ in the absence of Mr. Marya on 20th July 2000. In fact, Mr. Marya had faxed the court on 17th July 2000, saying:

"As I am already abroad so I am unable to attend the hearing listed on 20th July 2000. Kindly do the needful and oblige."

3. Rix LJ considered the grounds put forward for appeal and dismissed the application for reasons which are set out in the transcript of his judgment.
4. There was then an application to reinstate the matter which was heard by Robert Walker LJ on 24th November 2000, again in the absence of Mr. Marya. Mr. Marya had communicated with the court asking that the application should be dealt with on paper, but Robert Walker LJ decided that the right course was to deal with it in open court which he did. For the reasons set out in his judgment of 24th November 2000 he dismissed the application to reinstate.
5. As I have said to Mr. Marya, where an applicant seeks to renew an application for permission to appeal, on which an order has already been made in his absence, he has to show a satisfactory explanation for his absence on the prior occasion or occasions and, in addition, the basis on which it can properly be said that the judgment which was given in his absence overlooked some material matter, that is, a matter which would have affected the decision that was made. As I see it, if those grounds are not put forward, if the applicant fails to provide that explanation and grounds on which it can properly be said that the judgment given in his absence overlooked some material matter, then it was correct that the matter came before the Master to decline to reinstate it. In fact, this is not one of the cases which first came before Master Venne.
6. Having given that indication, Mr Marya has argued the following points. First, he says that there is an application to be heard by His Honour Judge Marcus Edwards still outstanding for a review of the judgment of 21st January 2000. He made that application originally on 24th January 2000. It was struck out on 10th March 2000, but the order on that date stated that any further applications were to be made to His Honour Judge Marcus Edwards if available, before arrangements were made for hearing. In fact, before that date the defendant (that is Mr. Marya) made an application for the case heard on paper to be given a hearing, and the court stated on 10th February 2000 that that date was to be 4th April 2000. There is no order in the bundle showing what happened on 4th April 2000. Mr. Marya has shown me a further application dated 4th April 2000, again asking for the judgment on 21st January 2000 to be set aside because it was made in his absence. He has informed the court, by letter dated 16th April 2000, that the time for the hearing in open court of the original matter was extended to 18th April. It did not go ahead on 4th April. He tells me that his application of 4th April is still outstanding. I have to say that I find that surprising since we are now nearly at the first anniversary of the second application. As I see it, however, the applications for review being made to the judge are quite separate from the application which I have before me today. The application before me today is for permission to appeal the original order of 21st January 2000. If Mr Marya has open to him a separate course of action, namely that of asking the judge to review that order, then of course that is an independent course of action which he is entitled to take. I express no view on whether it is open to him. The fact of the matter is that it is quite separate to the matter with which I am dealing.
7. I turn to the points put forward as being material matters which Rix and Robert Walker LJJ overlooked and which may have a material effect on the outcome of the application. First, Mr Marya points out that the judgment passed by His Honour Judge Marcus Edwards was passed in the absence of the defendant. The defendant, Mr Marya, appeared before the judge to make an application for an adjournment and said that he was too ill to stay for the rest of the afternoon. The judge rejected that application. The defendant, in his judgment, seemed well enough to carry on. In fact, the defendant did leave the court and was not present during the trial.
8. In order for this ground to succeed, it would have to be shown that the judge was wrong in the exercise of his discretion to decline to adjourn the trial. There is no evidence before the court as to Mr. Marya's health on that occasion. The judge did see a certificate but I have not seen it. In order for there to be a real prospect of success, it would have to be shown that the judge's decision not to adjourn was one which no reasonable judge, seeing the certificate, could have made. The judge used his own observations and there is no prospect of success against his decision on that basis.
9. Secondly, Mr. Marya submits that Rix and Robert Walker LJJ could not have had a bundle in front of them because one was not lodged until February of this year. It is clear from reading the judgment that their Lordships had the papers in front of them. They may have been bundles prepared for them by the court. It is not sufficient to say that the court did not have a bundle. There has to be some identifiable matter to which Mr Marya could point which they overlooked.
10. Mr Marya then makes a number of points about the judgment of His Honour Judge Marcus Edwards. He says, first, that the goods had been taken in exercise of the lien. He says that there was correspondence which shows that Sanray had taken the stock and would only give it back if it was paid for or if the amounts outstanding were paid. This point does not matter because the judge held that there was the same duty of care to take reasonable care of the goods whether or not the lien was being exercised. There has been no challenge to that ruling. Secondly, Mr Marya says that the stock was valuable and that he would have wished to put in evidence to that effect. He comments rhetorically, why would they have bothered to redeliver the stock to him if the stock was not valuable? The fact remains that the time to put in that evidence was back before the judge. It is too late to say now that it is desired to put forward some evidence which was available before the judge. In any event, I have not seen any evidence to support the argument that the goods were in fact valuable.
11. Lastly, Mr. Marya makes the point that the judgment of His Honour Judge Marcus Edwards was a one-sided judgment. He makes that point in relation to the judgment given in his absence by this court. Of course they were made in his absence. It is not sufficient to say that. Mr Marya has to point to something tangible which was omitted which would have a material effect on his application. In my judgment his application fails to do that. Therefore this application to reinstate fails.
Order: Application refused.