England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Friday, 26th July 2002

1. LORD JUSTICE WARD: On the face of it this is a pretty hopeless appeal and I may be open to criticism for not dismissing the application here and now.
2. These are the problems. The claim against Ms Allen was a home made claim by the purchaser of a motor car which she had sold. The claimant alleges in his home made claim that it was being made under "breach of contract" and "misrepresentation". There seems to be little issue but that the vehicle had been extremely badly repaired at some point in its history and the purchaser claimed a half of the cost of repair.
3. The case appears to have been run in the small arbitration claims court as a claim that the vehicle was not fit for its purpose and that Ms Allen, the defendant, was in the business of selling motor cars. She adamantly denies that she was in that business or any business of a like kind. The only evidence may have been that she advertised this car, the Volvo, on a date in October 1998, the sale taking place shortly thereafter, and that in April 1999 two other advertisements appeared in the same paper from her telephone number, although she says that one of those cars was her husband's and the Peugeot was a car that she had bought to replace the Volvo.
4. I have no idea what misrepresentation, if any, was alleged to have been made or found by the district judge. Be that as it may, he gave judgment against Ms Allen on 18th May 1999. It took until August 1999 for Ms Allen to seek to appeal that order.
5. Judge Overend, on 24th May 2000, refused to give her permission to extend time to appeal against the district judge's order, saying:

"The reason that she gave for making an application three months after the award and not 14 days was that it had taken her a long time to get round to it. I have explored the potential appeal that she might have made, so that she can understand that these matters are considered seriously by the court. The view that this court has come to is that having regard to the non-existent explanation for the delay and having regard to the complete lack of merits of the appeal if it were to be pursued, I do not grant her leave to appeal out of time."

6. I am not sure that the judge's view that there was a complete lack of merits in the appeal is correct, although I have not investigated it in detail. I am not sure that it is appropriate to draw an inference of trading from the advertisements, which may have been the only evidence to support that trading. As to the lack of explanation, Ms Allen tells me that she was struck dumb, in effect; that there was a good explanation, namely that she was caring for her father-in-law, who was suffering from terminal cancer, and for that reason she was distracted. Whether that explanation would have been good enough, I say nothing about at the moment.
7. Her next difficulty is that she did not bring this appeal in this court until 18 months later. I should strike her out immediately for that very fact. But she says she applied first at Plymouth and they did not deal properly with the papers. Then she applied to this court and her application was left lying about whilst the question of exemption from fees was explored.
8. I can see that there may be a true defence to the claim and that if she can establish a good reason (even if it was not put forward to Judge Overend) for the delay in going to his court, and if she can produce the confirmation that the court system has been at some fault in processing her appeal, I might - but just might - be persuaded to grant her permission.
9. I will adjourn the matter to enable her to produce the further evidence to explain the respective periods of delay and I will look again at the matter in the light of that. Ms Allen will also need to obtain as much of the original judgment as possible, if necessary asking the district judge for a copy of his notes or any record he has of the reasons for his judgment.
10. I will therefore adjourn this matter to be listed before me in mid-September, when I am sitting during the vacation.
Order: application adjourned to be relisted before Ward LJ in September 2002.