England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Wednesday, 17th July 2002

1. LORD JUSTICE WARD: Mr and Mrs Jenkins seek permission to appeal against the order of His Honour Judge Perrett QC, sitting in the Telford County Court on 1st August 2001, when he dismissed their appeal against an earlier order made by District Judge Ilsley on 5th May 2000.
2. This is an unhappy case and Mr and Mrs Jenkins, who appear before me this afternoon and make their courteous submissions, are genuinely concerned about the way the Bradford & Bingley Building Society have managed their mortgage account.
3. So far as is relevant for present purposes, the history can be summarised in this way. At some stage Mr Jenkins unfortunately lost his employment. That had its inevitable effect upon his ability to discharge the mortgage payments and it is an admitted fact that arrears built up. Whether they were to the extent of some £1,400 to £1,500 (as Mr and Mrs Jenkins have submitted to me today) or more like £4,600 (which is a figure I think I have read in the papers as the building society's assessment of the arrears) may not much matter. It led to protracted discussion between the building society and Mr and Mrs Jenkins and eventually a threat of litigation to repossess their home. That led to Mrs Jenkins, whose health is not good, approaching her father in a desperate state of fear of losing her home and having to borrow money, which has put them in some embarrassment, if not difficulty.
4. As a result of the distress which had been caused to them, they took their complaint to the Ombudsman and received some satisfaction from him, but not complete satisfaction. So they issued proceedings in which they sought to recover various sums of money. The first was for the cost of handling 173 letters that had passed to and fro with the building society, charging that at the same rate as the building society apparently charge for correspondence they have to handle, which is said to be the exorbitant amount of £70 per letter. So there was a substantial claim of £13,110 under that head. Next, they claimed to be reimbursed for telephone calls, visits to solicitors and so forth in connection with the same dispute. They valued that at £3,000. The third element was a claim for the return of fines which the building society had admitted should not have been charged to their account. The fourth element related to the borrowing of the money that I have mentioned and the need to repay it with interest. That claim was for £5,000. Finally, there was a claim for £28,000 for the upset and distress that had been caused "by Bradford & Bingley's continual lies and their refusal to tell us why our arrears were so high", and so forth.
5. The building society applied for orders under the Civil Procedure Rules to strike out that claim as disclosing no cause of action or otherwise being frivolous or vexatious, or for summary judgment under Part 24 of the Rules. That application is the one that came before District Judge Ilsley.
6. Mr and Mrs Jenkins complain that they were confronted on that occasion with a mass of documentation presented to them in court, they having no fair opportunity to deal with it and, being litigants in person, not appreciating that they may have had an opportunity to seek an adjournment in order to digest that information (much of which, being in the form of spreadsheets and other accounts, would have seemed to them - as, from a quick acquaintance with the documents, it can almost seem to me - to be gobbledegook).
7. One of those documents (which appears at p.120 in my bundle and p.14 of another bundle) was transmitted by a fax communication at 9.23am on 5th May, the day of the hearing before Judge Ilsley. It was from the building society's litigation department and was presumably to the solicitors acting for them in the County Court. It is a document which is called "Enquire on Arrears Balance History" and it reveals that on 4th May (that is to say, the day before the hearing) £1,488 was credited to the mortgage account of Mr and Mrs Jenkins. That sum, as I understand it, was the refund of the fines, expressed in round figures to be £1,500, which was a source of complaint and a head of claim in the action before the district judge.
8. The district judge dealt with the matter in this way. She concluded that:

"On any reading of these papers there cannot be any tortious duty of care which arises as a matter of law. The matter revolves around the contract which exists between the parties and that contract is the mortgage deed itself."

9. Thus she could see no possible basis, in contract or in tort, for the recovery of the cost of considering the letters or in respect of the cost of telephone calls, visits to solicitors and so forth. I would have thought, for myself, that that was probably plainly correct.
10. As to the fines, she said this:

"The third and perhaps the more contentious issue, and this is what seems to be at the root of this case, is the claim which is made for £1,500 for the return of fines which the defendants are said to have admitted they should not have to pay. Of course, if that is right, the defendants have conceded those should be refunded and in fact it is apparent from the correspondence that they conceded that and that furthermore those credits have been made to the account.

However, as a matter of contract, although they have been re-credited, and I accept that they were re-credited after the issue of proceedings, as a matter of contract the defendants were entitled on a strict reading of the contract to make those claims. In fact, they conceded as a matter of practice that they should not do so and therefore the credit has been made. That being the case, there can be no remaining cause of action, the credit having been made."

11. It was, of course, made the day before the hearing.
12. I am not sure, because I have not investigated the matter, whether that was a correct analysis of the position or whether, by virtue of an admission that the monies were not due, there was a proper claim in restitution for the return of fines admittedly wrongly levied.
13. The district judge went on to deal with the remaining claims, pointing out that the money borrowed to pay off the arrears was to repay a debt - she said it was in respect of arrears at the time amounting to something over £4,000 - and, since some money was due, there could be no complaint about that. The money would have had to have been paid whether it was borrowed from the in-laws or not. I see the force of that judgment.
14. As to the claim for distress, the judge held that damages for distress are available in a small category of cases and this is not one of them - again, a judgment likely to have been correct.
15. I see little reason to interfere with that judgment because, although the building society treated litigants in person with scant regard for the disadvantage litigants in person have, in presenting a vast bundle of documents to them at the hearing (it having been the building society's application to strike out and consequently their duty to put the documents properly before the court and the other side in time), there is nothing so wrong in the judgment as to cause me to be too concerned about it.
16. I am a little troubled that, because £1,488 was due and was unpaid until the day before the hearing, it may have been harsh to dismiss the claim with the costs assessed at £2,900-odd. It may be that at the date when the claim was issued there was a good claim at least for a modest amount, not the full amount that has been sought.
17. For reasons that I do not understand and have not investigated, the claimants, Mrs and Mrs Jenkins, did not seek permission to appeal that order until some time later. In fact, permission to appeal was only granted on 5th June 2001; that is to say ---
18. MR JENKINS:We had actually applied for leave to appeal on 30th March 2001. We do have a document. The reason for the delay was because we had been requesting from Bradford & Bingley if we could please have our 2000 year end statement, and they actually sent it on 27th April. But I do have a letter from the court where they say ----
19. LORD JUSTICE WARD: Thank you, Mr Jenkins. If those remarks are included in the transcript, it would be useful to explain the delay.
20. It is immaterial what delay there was, because Judge Rubery granted permission to appeal. Having granted it, the appeal was properly before the court and it was that appeal which came before Judge Perrett.
21. There are a series of complaints made by Mr and Mrs Jenkins about that hearing. They are convinced that counsel for the building society had some private conversation with the judge and that in effect the matter was dealt with in their absence and the hearing was accordingly something of a charade. I cannot accept that.
22. I also fear that they have not fully understood the judge's judgment. He at once made it plain, on p.2 of his judgment, as follows:

"I have read the correspondence in the matter and I have read your notice of appeal. I have also read the skeleton argument.

So far as today is concerned, you have leave to appeal and I cannot do anything about that. But I can only review the situation, do you see, look to see what evidence was before the district judge - I have a copy of her judgment - and to see whether she has made any error in it.

I understand that you are saying that lots of people are telling lies and did do before her, but she had the evidence before her and she tried the matter on the evidence. I can see nothing wrong in law or in fact with the conclusions at which she arrived, Mr Jenkins. I can only review today. I have not got the power to receive further evidence or to look at other matters that were not before the district judge. Do you understand?"

23. Later, he said that the district judge had found there was no cause of action on the contract. He said:

"She is absolutely right in that, in so far as you claim damages for the distress and so on that was inflicted upon you by the maladministration, as it is put. You have no remedy, I am afraid, for that as the result of any breach of contract by them. It is not a matter which, in law, the courts can entertain."

24. He looked at the whole history. He tried to sympathise with the Jenkins' predicament, but he could not conclude that the judge was wrong. That was a summary disposal of this appeal, but, in my turn to review it, I cannot for my part see that the judge's analysis, though quick, was erroneous.
25. Mr and Mrs Jenkins are upset because the judge went on to express his "complete surprise" that permission to appeal was ever granted. Whatever Judge Perrett's views are, Judge Rubery had given permission and it was properly before him. He perhaps dwelt on that criticism at greater length than he needed to have done, for it has given rise to a confusion in the minds of Mr and Mrs Jenkins that either Judge Rubery was right or Judge Perrett was right; they could not both be right. I have tried to explain to them that they could both be right, because Judge Rubery, in granting permission, is simply saying that there is a real prospect of success on the appeal, which means no more than that it is not a fanciful prospect of success; it is arguable. But he does no more than that in giving permission to appeal. It is not a concluded view about the merits of the appeal; and he was clearly concerned about the matters of fact to which I will return in a moment.
26. So turning to my task of deciding whether or not to grant permission to appeal, I pointed out to Mr and Mrs Jenkins two difficulties they have. The first is that they are six months late in coming to this court. The reasons are that they referred certain matters to the police and that investigation took time. Secondly, they were misinformed by the court that they should abide the result of the taxation of the costs. Thirdly, they tried to get legal representation but could not. The rules are there to be obeyed. I could have dismissed this application because the reasons are not satisfactory, but that would be wrong, given the intensity of the feelings Mr and Mrs Jenkins hold, and, if I thought there was a reason to appeal, I would have extended time.
27. But I can only grant permission if there is, in this second appeal, an important point of practice or principle involved or some other compelling reason to trouble the full Court of Appeal. In my sad judgment, there is no point of practice or principle. The district judge took a decision which was probably correct in every respect. If she failed to see that there might have been an argument for a restitutionary claim in respect of the time, that, I am afraid, probably is not a point of practice or principle which justifies coming here again. Judge Perrett considered the matter summarily, but I cannot identify any error in his approach and, broadly, I agree with it.
28. It leaves me with this sense of unhappiness. At one time Mr and Mrs Jenkins had a claim - even if only a moral claim - to the recovery of £1,488, yet their action was dismissed with all the costs, and I have said that may be harsh. I confess that Judge Perrett's dismissal of this appeal, with the costs to be taxed on an indemnity basis, is likewise a harsh judgment. But appealing against that part of the order presents insuperable obstacles and it would be an unkindness to Mr and Mr Jenkins to bring them back to this court on as narrow an issue as that, on which they are not certain to win and which, if they lose, will add even more costs to the £15,000 to £16,000 which has already been involved in the appeal to Judge Perrett. How £16,000 was incurred I confess I simply do not know, but the costs have been assessed by the costs judge and I cannot possibly go behind it. It is expensive litigation for what could have been, and perhaps should have been, a very simple appeal.
29. The next area of disquiet is this. The fax communication sent on 4th May shows a credit to their account made on 5th May 2000 in the sum of £1,488. The statements of account sent by the building society do not reflect that position. The account for 1999, which purports to be "Mortgage Statement for the year ended 31st December 1999" (at p.107 of my bundle and p.2 of another bundle) has no credit in respect of any matter relating to the fines or the overcharging of interest on the arrears. Another mortgage statement for 1999 (at p.115 of my bundle) does show two credits on 31st December 1999, the first of £1,341.18 for "Interest for Period Refund", the second of £20 for "Interest for Period Refund". So those two statements are inconsistent with each other. The mortgage statement for the year to 31st December 2000 begins with the balance carried forward from the first 1999 statement I have referred to, but then gives credit in 1999 for the two amounts of net interest charged of £20 and £1,341.18 respectively. But that document does not reflect any credit for the £1,488 which the fax communication suggests has been credited to the account.
30. I am told by Mr and Mrs Jenkins that they are continuing to pester the Bradford & Bingley Building Society to explain why that credit is not shown in their annual statement. I think they are right to be complaining about it. They are right not least because, if the money is not credited, then possibly the calculation of interest in the account will be increased because that credit has not been reflected. It should be reflected, and it is up to the building society to satisfy Mr and Mrs Jenkins that the account is in order.
31. Mr and Mrs Jenkins have been so upset by all this litigation that they have, for example, complained about counsel's conduct to the Bar Council. In response, in a letter to the Bar Council, he refers to the fact that:

"The screenprint showed that on 31st December 1999 a total sum of £1,361.18 had been credited to Mr Jenkins' account and that a further sum of £1,488 had been credited to the account on the day before the hearing before the District Judge - the 4th May 2000."

32. Those figures do not appear on official communications from the building society placed before me, and that is a matter which needs to be investigated.
33. If need be, I am afraid it will have to be referred back to the Ombudsman. In order to assist him and the building society and Mr and Mrs Jenkins, a copy of this judgment can be provided to Mr Jenkins at public expense, for him to refer to the building society and, if necessary, to the Ombudsman, in the hope that this long suppurating sore can finally be healed.
34. I hope the building society will look a little more sympathetically on their customers' predicament and acknowledge that their paperwork is not what it should be. They have a charging order on the house for their costs. I do not imagine that this judgment and my disquiet will cause them not to enforce the orders for costs that they have. But for my part I can readily understand why this couple have become as concerned as they have about the treatment they have had from the building society.
35. Unfortunately, they do not establish any point of practice or principle of importance and there is no compelling reason to grant a second appeal. I am afraid, therefore, that the application must be dismissed.
Order: application for permission to appeal dismissed; transcript of judgment to be provided to the applicants at public expense.