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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Carlco Ltd v Dyfed-Powys [2002] EWCA Civ 1330 (12 September 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1330.html
Cite as: [2002] EWCA Civ 1330
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF DISTRICT REGISTRY
(HIS HONOUR JUDGE GRAHAM JONES)
Strand London, WC2 Thursday, 12 September 2002 |
||
B e f o r e :
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| CARLCO LTD | Claimant/Applicant | |
| -v- | ||
| CHIEF CONSTABLE OF DYFED-POWYS | Defendant/Respondent |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
THE DEFENDANT DID NOT ATTEND AND WAS UNREPRESENTED
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Crown Copyright ©
- LORD JUSTICE POTTER: This is an application for permission to appeal against the order made by His Honour Judge Graham Jones, sitting as a High Court Judge in Cardiff District Registry on 8th March 2002, when the claimant company's claim against Dyfed-Powys Police was struck out and judgment entered for the defendants. Permission to appeal was refused by the judge following the hearing on the basis that the claim was highly speculative and there had been a failure to give proper disclosure in accordance with a peremptory order made on 17th August 2001 at a case management conference.
- The judge set out the background to the proceedings between pages 2 and 3 of his judgment. In summary, the claimant complained that the police had disclosed confidential information and made malicious or defamatory statements about the claimant company to third parties, which caused the claimant company, on 20th March 2000, to be declined by a company called Inn Business Ltd as prospective tenants for licenced premises known as Friars Vaults in Haverfordwest.
- The claimant company issued proceedings against the police on 2nd November 2000, the claim form and supporting documents appearing at pages 9-13 of the bundle. The claim was for misfeasance in public office, defamation and breach of confidence.
- By an amended statement of claim proffered to the court the damages claimed total in excess of £1m. They reach that inordinate sum on the basis of a pleaded loss of notional profits over a 12-year period. There is also a claim for exemplary damages. The claim is plainly vastly exaggerated on any view, but no application has been made to strike it out on the grounds that in principle it stands no reasonable prospect of success, and the grounds on which it is brought are very fully set out in the statements of the claimant company's witnesses which have already been prepared and served in the proceedings.
- On 17th August 2001 the matter came before His Honour Judge Graham Jones for a case management conference. The judge was concerned at the absence of proper disclosure by the claimants, such disclosures as had been made being pretty sparse. Further, the position as to the substance, ownership and actual offices of the claimant company, which was a highly relevant matter in relation to the substance of the action, was unclear. He ordered that unless an authorised officer of the claimant company disclosed specified documents within 14 days of service the claim would be struck out with costs. There was then some delay by the court in drawing up the order which was not sealed until 1st November 2001. However, on 12th November 2001, the claimants purported to comply with the order by means of a statement from Phillip Carl James Ryan of that date. The matter then returned to the judge on 8th March 2002 for a further case conference. On that occasion, on the application of the defendants, the judge struck out the claim and entered judgment for the defendants on the following basis. He said that Mr Ryan, who had given the statement, was not an authorised officer of the claimants and this was not simply a technical breach of the order in the light of the history and the background to the claim. He said it was incumbent on the claimants to ensure full compliance with the order which they failed to do. It was surprising there should be no more than a few documents which had been disclosed, documentation being very important in relation to the case. He criticised the statement as making no attempt to say whether specified documents existed, although not now in the possession or power of the claimants and if so what had become of them. He added that in the subsequent four or five months since the statement no further statement or explanation had been given nor apparently had there been further attempts to obtain further documentation, and that this gave rise to considerable doubt as to the genuineness of the claim. He described the claim as being highly speculative, and he said that there had been gross failure to comply with the peremptory order, with no attempt to extend the time fixed for the order. He said that the overriding objective required the order to be implemented and that the claim be struck out.
- The claimants' proposed grounds for appeal appear at page 3 of the bundle. But the matter as it has been presented to me by Mr Francis on behalf of the company really boil down to this. It is said that the claimants properly, or at any rate substantially, complied with the order of 1st November 2001 by filing Mr Ryan's statement on 12th November.
- There are two aspects to the grounds which Mr Francis says flawed the judge's exercise of his discretion. First, it is said that the judge erred in his view that the statement was not made by a duly authorised officer of the claimant company. The point made before me by Mr Francis, which he says was the point made but dismissed by the judge, is this. He says that it is perfectly lawful to have a position in relation to a private company (which was indeed the position with the claimant company at the time when Mr Ryan's statement was made) where there is a single or sole director which is a limited company and the secretary is also a limited company. Such a position is lawful, provided that the companies which are director and secretary do not themselves both have a sole director who is the same person in each case (see paragraphs 282 and 283 of the Companies Act 1968). He goes on to say, and has produced to me information from Companies House in support, that at the time Mr Ryan made his statement of purported compliance with the order of 1st November 2001, the sole director was a limited company called La Barca Ltd and the Secretary was a company called Five Star Ltd, which Mr Francis has told me were companies with independent directorships. One notes that Five Star Ltd has an address 11A Hamilton Terrace, Milford Haven, whereas the address of Mr Ryan is 11 Hamilton Terrace Milford Haven, and, as I shall mention shortly, Mr Ryan is now, and became shortly after the judge's decision, a director of the claimant company. However, I accept what I have been told for the purposes of this application.
- La Barca Ltd had in fact been the sole director of the claimant company since the resignation of Mr Boast in May 2000, following his failure to obtain the licence which he had originally been employed by the claimant company to hold, and who, so far as evidence on behalf of the company at trial is concerned, is the main protagonist through whom various conversations were held, both with offices of the company who were to let the premises to the claimant company, and the police officer concerned in the case, who is the second defendant.
- According to Mr Francis, the claimant company did not then have any other officers or employees capable of fulfilling the role of "properly authorised officer", as required by the order of 1st November 2001. In those circumstances it was considered that the company secretary, Five Star Ltd, could and should authorise Mr Ryan with his knowledge of the underlying matters as required from Mr Boast, to make the statement in response to the order.
- I have not considered this ground of appeal at length. I have formed a preliminary view, like the judge, that the roundabout mechanics referred to were probably inadequate to constitute Mr Ryan a "properly authorised officer" for the purposes of the order. However, the point seems to me arguable. If the judge was in error it goes to the exercise of his discretion because it plainly played a large part in his decision. Even if he was not in error it is arguable that it constituted a bona fide attempt on the part of the claimant company to comply in a substantial manner with the order, which taken with the next point, meant that the judge should not have exercised his discretion to strike out without giving a further chance of final compliance, or, at any rate, making some sort of alternative order which did not strike out the claim there and then. It was in fact the case, though it is not clear whether the judge knew it, that Mr Ryan, at the time of the matters complained of in the action and for some time since, had been an undischarged bankrupt. However, prior to the hearing he had obtained his discharge and indeed became a director of the claimants on 11th March, shortly after the judge's decision.
- The second point is that while the form of the statement was deficient, in particular in relation to any enumeration of those relevant documents, if any, which had previously existed but no longer did so, and as to what might have happened to them, it effectively and substantially dealt with the question of documents. Further, insofar as others might exist, they were not central to the issues in the case.
- Having been taken through the order and the form of Mr Ryan's response, it seems to me that there is some substance in this point such that it is appropriate, taken in combination with the first point which I have mentioned, to give leave to appeal.
- Before I complete the judgment, however, I should say something about representation. Mr Francis appeared before me for the company pursuant to an application lodged with the court by fax dated 10th September 2002. Up until that stage it had been proposed that Mr Ryan as a director of the company should appear and speak on the basis that the company acted as a litigant in person. Mr Francis is a former solicitor who acted for the company at an early stage of the proceedings. However, since he first acted, he has been struck off the Roll of Solicitors (as he has confirmed to me), though I have not gone into the circumstances. He also tells me that he has never been the holder of a higher court advocacy certificate. It is apparent that before the judge the claimants were represented by counsel and are therefore capable of finding the means to pay for counsel's services. The role in which Mr Freeman has sought to represent the company is as "assistant company secretary", apparently pursuant to a board resolution of the claimants' of 6th September. That is plainly a recent appointment and is a device to enable him to represent the company in effect as a litigant in person, rather than Mr Ryan, than whom he is no doubt much more articulate. I have let him address me on behalf of the company in order that the matter can be dealt with today. However, that does not mean that I approve the device which I have mentioned, or consider him suitable as an advocate or representative for the company on the appeal. I mean him no discourtesy; indeed, he has been of some assistance. But the combination of his previous role and present status seem to me at least to render it undesirable that he appear for the company on appeal as an advocate. I express that view without seeking to tie the hands of the full court should it think otherwise. However, that expression of view may be taken as a guide by the company as to the wisdom of the representation which it should obtain for the purpose of the hearing of the appeal by the full court.
Thursday, 12th September 2002