England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF DISTRICT REGISTRY
(HIS HONOUR JUDGE MOSELEY QC)

		Royal Courts of Justice The Strand London Tuesday 30 July 2002

Tuesday 30 July 2002

1. LORD JUSTICE POTTER: This is an application for permission to appeal from the order of His Honour Judge Moseley QC sitting at Cardiff District Registry made on 10 January 2002, when he made an order in favour of the proposed respondent, Mrs Ahmed, granting her application to set aside a judgment by default obtained against her by the applicant two years earlier on 2 February 1998 and entering judgment in her favour by dismissing the applicant's action against her. He also awarded the proposed respondent her costs of the action to be determined at a detailed assessment.
2. The applicant does not appear. He has been called outside. We have delayed giving judgment on this application for 25 minutes in order to enable him to be present if he wishes. In the result I shall give a short judgment. For the purposes of brevity I shall refer to the proposed respondent as "the respondent".
3. The procedural history is this. In 1992 the applicant took proceedings against Barclays Bank, Mr Ahmed (the husband of the respondent), the respondent herself and two firms of solicitors. His claim against Barclays Bank was either discontinued or not proceeded with. So far as his claim against Mr Ahmed was concerned, Mr Ahmed was adjudicated bankrupt in 1992 and the action against him was eventually stayed in 1998 because of his bankruptcy. The applicant's claim against the two firms of solicitors has apparently been settled. It appears from the judgment below that the judge received a letter asking that the judgment by consent be set aside, but that was not dealt with before him.
4. The respondent was represented by a firm of solicitors at the commencement of the proceedings. They entered an appearance for her but did not file a defence on her behalf. In due course, the applicant made an application for judgment in default of a defence and signed judgment dated 2 February 1998. For some reason that judgment is not in the papers before us.
5. The respondent's solicitors' application to set aside was based on the proposition that no cause of action was shown against the respondent in the statement of claim and that judgment ought to be set aside on the merits. It was coupled with an application made by the respondent that the action be thereupon dismissed under CPR Part 24.
6. Judge Moseley held that there was indeed no cause of action disclosed in the re-amended particulars of claim placed before him. He decided that he should not give the applicant a further chance to redraft the particulars.
7. I do not propose to read into this judgment paragraphs 2-10 of the amended particulars of claim which were before the judge. It is apparent from the transcript of the proceedings before us at pages 5-7 that the judge carefully considered them. He held that no viable cause of action was revealed against the respondent in those paragraphs. His reasoning is apparent from the argument before him and the short formal decision which he produced at page 11, line 21, to page 12, line 29 of the transcript.
8. The judge was plainly right in the view to which he came. The claim appeared to be put in two ways:

(1) for monies paid under a mistake of fact, giving rise to a claim in quasi contract and/or unjust enrichment for the sum received pursuant to that mistake. Quite apart from the difficulties of proving a mistake on the part of the bank which had paid over the money, it was neither pleaded in the claim, nor asserted in the various witness statements before the judge, that the respondent had either received or enjoyed the benefit of the monies which were paid to the husband's solicitors and expended to the husband's account and for his benefit when it was released by those solicitors to a local council.

(2) On the pleading and the evidence the claim appeared to be put on the basis of a number of promises or assurances by the wife that the monies would be repaid. However, these appeared to be gratuitous promises made after the event and unsupported by any consideration.

9. In finally disposing of the matter, the judge said this:

"The re-amended Particulars of Claim are at page 22 of the bundle. This is a completely redrafted claim against Mrs Ahmed. Essentially it is no different from paragraph 13 of the claim as originally drafted. It is longer and it is better drafted, in that it makes easier reading, but it still only alleges a promise by Mrs Ahmed unsupported by consideration. It makes an allegation against her in paragraph 9 that she is in breach of a quasi contract, she has been unjustly enriched, but none of the particulars back that allegation up with any detail at all.

In my view these Amended Particulars of Claim are no better than the original Particulars of Claim and I ought not, in those circumstances, to grant permission to amend.

That being so we are back to the original claim, which I have just held does not show a good cause of action. In those circumstances the correct course is to dismiss the action under Part 24.

I have considered an alternative, as Mr Din is representing himself in a complicated area of the law, whether I should give him one more chance. Mr Jones, however, points out that the cause of action as originally pleaded is not a viable cause of action and that anything that Mr Din might add to that cause of action would now be statute barred. Any cause of action that he does enjoy against Mrs Ahmed dates from 1991, ten years ago."

10. When the matter first came before the single Lord Justice, he was asked to afford the applicant time to take legal advice and to see whether his pleaded case needed yet further amendment. Permission was given for an adjournment for re-listing before two Lords Justices, as it now has been. The applicant was also expressly directed to forward a copy of any proposed amended pleading in draft with notice of any intention to apply for permission to amend, such application to be heard with the application for permission.
11. While forwarding a proposed amended claim to the court, the applicant failed to amend or supplement his application for permission by a formal application in respect of this draft. Nonetheless, we have looked at the draft which has been forwarded. In that draft the matter is now put differently. The previous pleading is expressly withdrawn. No mistake or unjust enrichment is relied on; nor is there any reliance upon an ex post facto promise.
12. The matter is not very clearly pleaded, even in this final form of amendment proffered. However, the significant part is that it is now put on the basis that the £44,900 sought to be recovered was paid over as a loan to the respondent herself rather than to her husband.
13. The relevant parts of the pleading read as follows:

"2. On or around 17 July 1991 the defendant and her husband assigned leases of several properties, namely 132 & 175 Albany Road, 123, 68 and 33 Claude Road to the claimant's nominee, Mr Saqib. The claimant in return by an agreement had provided the defendant with £44,900 as a loan. The defendant's husband was being prosecuted by Cardiff City Council and money was needed to repay the Cardiff City Council to gain a favourable sentence for the defendant's husband.

3. It was expressed by the defendant at the time of the borrowing that she was proprietor of at least one property, namely 32 Albany Road and that the money would be returned to the claimant after the properties were sold.

....

5. Pursuant to the agreement between the claimant and the defendant the claimant paid the sum of £44,900 to the solicitors of the defendant's husband by way of a cheque dated 19 July 1991.

....

9. In breach of the agreement the defendant has failed to return the money or money's worth to the claimant."

14. This way of putting it is a surprise since it is a departure from all the known facts as assumed before the judge and contained in the bundles of papers before us and which were apparently before the judge. Quite apart from the earlier form of the pleading which contained no such suggestion, in his witness statement dated 30 May 2001, the applicant put the matter thus:

"Third defendant [the respondent] is well aware that she stood as guarantor as her husband was in jail and she benefited from the money her husband received from my account, which was then used in exchange for reduction of her husband's jail sentence by one year.

....

The third defendant is a guarantor for the second defendant [the respondent's husband]. Therefore I was not in a position to enforce judgment until I was finished with the other defendants.

....

The third defendant instructed me to sell 123 Claude Road, belonging to the second defendant and 132 Albany Road belonging to the second defendant. I actively marketed the properties and found a buy[er] for 123 Claude Road. At the time the third defendant assured that I would get paid from the sale proceed[s] but she backed out. At the time [the] second defendant was in jail."

15. These matters suggest that the current pleading, rather than containing a true and sincere setting out of the relevant facts, has been drafted with an eye to demonstrating that the respondent was herself the recipient of the loan rather than her husband, which has never before been suggested. That being so, it seems to me that it would be quite wrong on this application for permission to appeal, which the claimant has not attended, to deal with the matter on the basis of an amendment which he has made no formal effort to maintain, despite the earlier direction of the court.
16. The judge himself considered the question of whether or not he should give the applicant a final chance to put his tackle in order and decided he should not. The applicant appears to have ignored the opportunity to seek to do that, even at this eleventh hour. In all the circumstances I would dismiss the application.
17. LORD JUSTICE JUDGE: I agree.