England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(HIS HONOUR JUDGE OVEREND)

		Royal Courts of Justice Strand London, WC2 Tuesday, 10 September 2002

Tuesday, 10th September 2002

1. LORD JUSTICE WARD: This is a renewed application for permission to appeal out of time against the order of His Honour Judge Overend in the Plymouth County Court given on 24th May 2000. The matter before him was an application for an extension of time to appeal against the judgment and order of District Judge Thomas, made on 18th May 1999, when he entered judgment for the claimant against Miss Allen for the payment of the sum of £1,613.88 plus costs. That was a claim made by the claimant in respect of a Volvo motor car which Mr Ritsma had purchased from Miss Allen. He acquired that vehicle in about October, and by December it was in need of repair. It appears that an earlier repair had been wholly improperly performed so that parts of the machine were simply stuck together and glued on to the crankshaft. Mr Ritsma claimed a half of the cost of that repair, claiming that there were misrepresentations, which probably were not made out, but alleging on advice he had received from the trading officers that the vehicle was unfit for its purpose and that it had been sold to him by Miss Allen in the course of her business as a motor trader. There was a dispute of evidence as to whether or not she was a trader as appears from the notes of the small claims arbitration on the county court file now placed before us.
2. The claimant alleged that he had seen advertisements for cars at her home on a regular basis appearing almost every week. The defendant admitted that there were advertisements for cars for members of her family. The claimant said he had been through four months and there were more than six different cars advertised. The defendant said that was not true. There was, therefore, an issue of fact on that matter, and although there is no note of the judgment of the district judge, it seems likely that he could only have found for the claimant on the basis that he accepted his evidence and rejected that of Miss Allen.
3. The appeal against a small claims arbitration of that kind is limited to a question of law as Judge Overend correctly pointed out. He correctly observed that it was highly unlikely that the complaint could be thus characterised as being more likely to be a dispute of fact, not of law. On Miss Allen's own admission to us there was a dispute of fact and there was, therefore, some evidence upon which the district judge could act. If he prefers the evidence of one he is acting on the weight of the evidence, and that gives rise to a question of fact, not a question of law. It would be otherwise if there were simply no evidence whatever to support the allegation that she was a trader. On the face of it, therefore, this appeal to judge Overend seemed to be fraught with difficulty. Nonetheless, the judge was sympathetic and was prepared to consider the matter on the merits, if there were any, if he could be persuaded to overlook the delay in the proceedings coming to him.
4. The judgment of District Judge Thomas was given on 18th May 1999. There was no application to appealuntil 25th August 1999. In other words that appeal was approximately three months out of time. There is nothing on the paper to explain that delay. When the judge asked for the explanation he records the response in this way:

"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."

5. That was no proper explanation to explain the delay and the judge would have been fully entitled to act upon it and to refuse to extend time, and this court would not be able to say that it was a wrong exercise of discretion.
6. I was, however, sympathetic to Miss Allen when she appeared before me on 26th July, because she explained that she was having to nurse a friend who was terminally ill. She was unable to satisfy me of the reasons for the delay in appealing to this court. The judgment under appeal given on 24th May 2000 had to be filed within 14 days of that date. The earliest date on the documents before us is now 10th August 2000. Again a considerable delay. Miss Allen today is not certain whether the difficulties presented in caring for the ill friend occurred after Judge Thomas' order or after Judge Overing's order. She is now confused about it. There is no proper explanation, therefore, for any of that delay sufficient for us to forgive it. The matter is made worse by my discovering on reading the file that Miss Allen is, or perhaps more accurately has held herself up to be a member of the Institute of Legal Executives with 25 years of professional dealing with the court, she is therefore to be taken to know more about time-requirements than other ordinary members of the public and one does not as readily excuse her as one might an ignorant member of the public. The rules are there to be obeyed, as she should know. There is no explanation sufficient to satisfy Judge Overend. I cannot, therefore, say that he was wrong. On the contrary, on the information he had before him he was bound to refuse to extend time, and in the absence of a satisfactory explanation to us I would not for a moment say that he was outside the ambit of generous discretion given to judges in taking decisions of that kind. I would therefore say that her appeal against his order refusing to extend time has no real prospect of success, and accordingly I would dismiss her application.
7. I am fortified in that by having had a best chance to examine the proceedings before the district judge, and I conclude that in any event her prospects of appealing District Judge Thomas' order are equally hopeless.
8. Her application must therefore be dismissed.
9. LORD JUSTICE POTTER: I agree.
(Application dismissed; no order for costs).