England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS DISTRICT REGISTRY
(His Honour Judge Behrens)

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

1. LORD JUSTICE POTTER: This is an application for permission to appeal against the decision of His Honour Judge Behrens sitting as a judge of the High Court in the Leeds District Registry to strike out substantial parts of the applicant's amended defence and counterclaim which raised a number of issues relating to charges granted over the applicant's farm, the appointment of receivers of the farm business and the sale of farmland by the respondent bank. The judge refused permission to appeal. The applicant also seeks an extension of time in which to file his application for permission to appeal. The judgment of the judge is dated 26th November 2001, while his order is dated 4th December 2001. The appellant's notice was not filed until 14th January 2002.
2. So far as the application for an extension of time to file the application for permission to appeal is concerned, I am prepared to grant that at this stage. The notice of appeal also seeks permission to produce evidence to deal with the matters raised by Judge Behrens and permission to amend the defence and counterclaim.
3. The application before the judge was made by the bank under both CPR 3.4 and CPR 24. The first paragraph of the grounds was put on the basis that the defendants' counterclaim discloses no reasonable grounds for bringing the claim against the first claimant, is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings. Perhaps the more important from a practical point of view, and from the point of view of the judge's ultimate decision is the question whether the prosecution of the counterclaim would be an abuse of the court's process on the wider basis that, even if successful, the appellant will ultimately receive no financial benefit. The judge gave a clear and careful judgment upon the face of it, which it is difficult to fault without looking more widely save that it does appear (although this is unlikely to be a material matter) that he was mistaken when he asserted that the charge over the part of the farm known as Bursey Lodge was a first charge and not, as the judge appears to have thought, simply a floating charge subsidiary to a fixed charge held by AMC.
4. When I came into court I was expecting to see the applicant representing himself personally, it having appeared that his legal aid had been removed following the result before the judge and that he was prosecuting the appeal on his own. He had supplied a lengthy skeleton argument which went wider than the grounds of his appeal, in the sense that, in addition to a much more detailed attack upon the judgment than was apparent from the grounds of appeal, he appeared to have procedural as well as substantive complaints, based upon the way the judge had proceeded to hear the matter when, on the applicant's case, he had simply come along to meet a case of striking out being conducted on a relatively restricted basis, namely that whatever complaint there might have been about the Official Receiver's conduct, the bank's claim well topped the amount of the counterclaim, only to find that the judge sought to go into the matter to a far greater degree on the merits than the applicant had expected. He says that, had he properly appreciated that course might be followed, it would have necessitated reference in far more detail to the evidence on which he relied, which evidence he asserts was available and could and should have been referred to by the judge.
5. In fact, the applicant now, (I think since yesterday) has the good fortune to be represented by counsel, Mr. Boardman, who has appeared before me instructed by the applicant's former solicitors, who have obtained the restoration of legal aid for the purposes of conducting his case. Mr. Boardman has had little opportunity to do more than appreciate that there are, if the applicant's complaints are to be fully aired, wider and more specific grounds upon which the appeal may be presented. At any rate, he seeks time to consider the matter fully and put it in order procedurally, should it be decided that it will be necessary to seek to rely on further evidence at the hearing of the appeal.
6. It seems to me, in all the circumstances, that the proper order to be made at this stage is for the application to be adjourned to be fixed for hearing as early as reasonably possible in the Michaelmas term. Notice of the application is to be given to the bank and the receivers so that they may be present if they wish. In fact, they are likely so to wish, because I will order that the hearing of the appeal should follow immediately if permission to appeal is granted. This seems to me a matter impossible to explore without the benefit of hearing from counsel who was present before the judge and who will be able to deal at first hand with the procedural matters of complaint raised by the applicant which may or may not have substance. I direct that there be an estimate of one day for the hearing of the application and the appeal. I also indicate that it is desirable that one of the judges hearing the application should be one with experience in Chancery matters.
Order: Application adjourned to be heard on notice with appeal to follow if permission granted; time estimate one day if permission is granted; one judge to be a judge experienced in Chancery matters; to be listed as early as possible in the Michaelmas term.