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 THE HIGH COURT
QUEEN'S BENCH DIVISION
(MASTER TRENCH)

		Royal Courts of Justice Strand London, WC2 Wednesday, 13 November 2002

1. LORD JUSTICE BROOKE: This is an appeal by Mrs Raisa Fradkina against an order of Master Trench on 20 June 2002 when he refused to allow her to enter a default judgment in this action. He directed that the action should be transferred to the Willesden County Court to be consolidated with other actions proceeding between these two parties. Master Trench granted her permission to apply to this court for amendment of its order dated 12 July 1999 and to appeal as a first appeal direct to this court against his direction for the transfer of the action to the Willesden County Court in view of her complaints about that court.
2. The case has a complicated history. Since 1998 four actions have been started between these two parties, at least three of which are still alive and waiting to be resolved. On 27 October 1997 the claimant took an assured shorthold tenancy of premises at 32 Colindale Avenue, NW9 at a rent of £210 per week. The defendant housing association was the landlord. The claimant lived there with her two parents, her disabled daughter and her son. They were homeless Ukrainian refugees. The claimant almost immediately started to complain about the condition of the premises. There were particular problems with the gas supply. As early as 7 January 1998 she issued proceedings in the West London County Court for damages. She complained about the sub-standard accommodation and she sought compensation for stress and risk of injury to her family (action no 1).
3. The following month the defendants issued proceedings against her in the Willesden County Court in which they claimed possession of the premises, on the ground of rent arrears, failure to provide access to the property, nuisance and annoyance and keeping pets in breach of the terms of the tenancy agreement (action no 2).
4. On 2 March 1998 action no 1 was transferred to the Willesden County Court. Unfortunately no attempt was made to link it with action no 1. Although the defendants obtained an order, upheld on appeal, striking out action no 1 and the judge at Willesden County Court granted the defendants possession in action no 2, the claimants successfully appealed to this court and on 12 July 1999 an order was made by consent that these matters should be remitted to the Willesden County Court for hearing before a different judge and that actions 1 and 2 be consolidated to be heard together.
5. In the meantime the defendants commenced action no 3. In this action they appeared to have claimed possession, not on the ground of arrears of rent or breach of covenant, but because the term of the shorthold tenancy agreement had expired. There was no defence to this claim and on 13 October 1999 Judge Rountree made a possession order and dismissed the counterclaim. This court refused the claimant permission to appeal.
6. On 22 October 1999 District Judge Dabezies gave directions in relation to the now consolidated actions 1 and 2. An element of confusion appears to have entered into the case because his order was given the case number assigned to action no 3, on which Judge Rountree had recently ordered possession. Under District Judge Dabezies' order the possession claim in action no 2 was stayed and the money claim was struck out. So far as action no 1 was concerned, the claimant was required to amend her particulars of claim by 12 November 1999 and the defendants were given permission to file and serve a defence and counterclaim in response by 3 December 1999 in substitution for that served in action no 1. When these pleadings had been filed allocation questionnaires were to be issued.
7. Although the defendants sought to enforce Judge Rountree's possession order in action no 3, a point was taken that District Judge Dabezies had ordered a stay in relation to the possession claim. We have been told that Mrs Fradkina remains in the premises to this day.
8. Although she filed the amended particulars of claim on the court, the claimant did not serve them on the defendants who were therefore ignorant of them. This order as drawn by the court did not require her to serve them. This omission seems to have given rise to a situation in which nothing happened in the consolidated action which the claimant was subsequently to describe as "frozen". Members of the court staff at Willesden did their best to explain to the claimant what was or was not going on, but they did not always have possession of all the relevant facts. The claimant then had the misfortune to instruct a firm of solicitors who did not serve her very well.
9. On 12 February 2002, the claimant commenced action no 4, on this occasion in the High Court. She claimed damages for breach of covenant, specific performance and breach of her ECHR Convention rights. The action related to the condition of the property which was the subject of the tenancy agreement. Reference was made to the frozen proceedings in the Willesden County Court. No defence was forthcoming for some time, which prompted the claimant to apply for judgment in default of defence. The defendants eventually served a defence dated 22 May 2002 and Master Trench refused to permit a default judgment to be entered on the basis that they had a defence on the merits. He transferred action no 4 to the Willesden County Court to be consolidated with actions 1 and 2, which were already proceeding there by order of this court.
10. It is clear that Master Trench was uneasy about the transfer of this case to Willesden in the light of the claimant's previous experience with that court. She complained that the court did not answer a letter written by her solicitors, which caused a delay of over five months, and that it did not progress her case. Master Trench felt he had no power to alter the effect of the order of this court made in June 1999. When granting permission to appeal he suggested that the claimant should be permitted to ask this court to vary its order in order to substitute another county court instead of Willesden as the venue for this litigation.
11. The defendants are entirely relaxed about the venue of these proceedings. They made it clear to the claimant as long ago as 10 July 2002 that they did not oppose any application she might make to have all the live actions transferred to the Central London County Court.
12. The claimant informed us that she was anxious that because this action was now in the multi-track she wished to claim more than £15,000 for breach of her Convention rights. She was worried that the county court would have no jurisdiction to award her damages on the scale she was seeking. When we explained to her that the jurisdiction of the county court was unlimited, her worries seemed to be dispelled. In these circumstances it is preferable that this court should make an order in this action varying the order of Master Trench so that the action be transferred to the Central London County Court.
13. So far as actions no 1 and 2 are concerned, it would be desirable in the events that have occurred for this court to reconsider the order made on 12 July 1999 and direct that those two actions also be transferred to the Central London County Court. All three of the outstanding actions will be consolidated and will proceed in that court. We would encourage Mrs Fradkina to obtain an appointment for a case management conference at the Central London County Court so that directions can be given and these actions proceed to a reasonable early trial.
14. LORD JUSTICE DYSON: I agree.
ORDER: We direct that the appellant do pay the respondent costs assessed at £1,500, such costs not to be payable unless the appellant receives an award of damages in her favour in the consolidated actions in which case this sum will be set off against the damages. (Order does not form part of the approved judgment)