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 OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MACKAY)

		Royal Courts of Justice Strand London, WC2 Tuesday, 26th November 2002

1. LORD JUSTICE ALDOUS: This is an application for permission to appeal by Mr Bourne in respect of an order made by MacKay J and for an extension of time to appeal that order which was made on 5th May 2001.
2. There are a number of orders that are missing from the bundle that has been prepared by Mr Bourne, but he has supplied a full skeleton argument and a supplementary skeleton argument. I will extract the background facts relevant to the position which arose before MacKay J.
3. By a writ dated 6th April 1992 the respondents, Harris Rosenblatt and Kramer, who are a firm, commenced proceedings in the High Court against Mr Bourne for monies payable by him to them for work that they say they had done totalling just over £3,000. The writ also included a claim for interest.
4. Mr Bourne filed a defence dated 25th April 1992, in which he alleged that the work done was not in accordance with his instructions. He also counterclaimed for damages.
5. It seems from the bundle that Master Craigmore entered judgment on the claim for damages and interest for the claimants on 19th June 1992. However, the judgment and the corresponding order does not appear in the papers.
6. In any case, Mr Bourne applied on 25th June 1992 to have the judgment set aside, and he re-served an amended defence and counterclaim. It appears that that must have been successful because the proceedings continued.
7. It also appears from the papers that on 9th August 1994 Master Eyre entered judgment for Mr Bourne on the counterclaim. Again, that order does not appear in the bundle or on the file.
8. Master Eyre made another order, said to be by consent, dated 13th December 1994 (which was not drawn up until 28th January 1997) which stated that the judgment which had been entered on 9th August 1994 should be set aside and there be no order as to costs. He also ordered that a reply and defence to counterclaim should be served within seven days, and the matter be transferred to the Romford County Court.
9. However, on 9th October 1998 Master Eyre set aside his own order which was dated 13th December 1994 on the basis, according to Mr Bourne, that the order was not in fact by consent. He went on to order that the costs of and occasioned by the earlier order be that of the claimants, and that execution of the judgment of 9th August 1994 be stayed pending further order.
10. On 4th December 1998, in Mr Bourne's absence, Master Eyre made an order dispensing with an affidavit of service. He also set aside judgment dated 9th August 1994 on the counterclaim and struck the counterclaim out as an abuse of process. He further ordered Mr Bourne to pay the costs.
11. At about the time of the December 1998 order, Mr Bourne's legal aid was stopped. He clearly suffered considerable difficulty with the solicitors from then on. But by an order dated 7th May 1999 Master Eyre ordered that Mr Bourne's application to set aside his order of 4th December be dismissed. He further ordered that Mr Bourne should pay costs, which he summarily assessed at £1,415, within 14 days.
12. Mr Bourne claims to have immediately lodged and served an application to have the May 1999 order set aside. No document appears in the bundle or on the file evidencing that application. Mr Bourne also renewed his application for legal aid, which he claims resulted in the grant of legal aid certificated May 2000. That certificate does not appear in the bundle or on the file.
13. Mr Bourne changed solicitors a number of times throughout this period. The troubles with his solicitors are documented in his first skeleton argument that appears in the bundle.
14. On 19th March 2001 Mr Bourne lodged an application for an extension of time for filing an appeal against the order of Master Eyre of 7th May. That application was dismissed on paper by Holland J on 7th May 2001, for the reason that it would be quite exceptional to justify an extension of that time and that no sufficient reason had been provided. He added that he could find nothing in the papers to suggest that Mr Bourne's appeal would have a real prospect of success.
15. That decision on paper was the subject of a renewed application which came before MacKay J on 5th May 2001. He said:

"I am afraid Mr Bourne I have to find that your application for permission to appeal sealed on the 19th of March of this year, which is one year and ten months or so after the Order of Master Eyre that you complain of on the 7th of May 1999, is the first effective step you took to appeal that Order. The time that has elapsed is explained by you only by delay on the part of solicitors over the whole of that period. That is not a sufficient reason for allowing an appeal so far out of time.

On that ground and also the material you put before me I see no real prospect of a successful appeal even if the time bar was not a problem for you, but I must refuse your application."

16. Mr Bourne seeks permission to appeal against that judgment and order of the judge.
17. I will summarise the grounds which he seeks to advance before this court. First, he says that the judge did not hear the reasons and arguments in support of restoring his application to set aside the judgment entered by Master Eyre. Mr Bourne also would wish to argue that the judge's order was based on limited information, which is in effect the same ground. Second, he says the judge's decision was based upon matters that had been set aside. Third, the judge arrived at his decision without looking at relevant documentation. Fourth, the decision that was arrived at was in breach of Magna Carta and in breach of certain Articles of the European Convention on Human Rights. Fifth, he asserts that his counterclaim is extant and that the original decision was arrived at in his absence and without representation. Sixth, and finally, he complains that he was disadvantaged by numerous changes in solicitors.
18. Mr Bourne referred me to CPR 52.0.3 which contains an extract from Lord Woolf's report entitled "Access to Justice". It states:

"Appeals serve two purposes: the private purpose, which is to do justice in particular cases by correcting wrong decisions, and the public purpose, which is to ensure public confidence in the administration of justice by making such corrections and to clarify and develop the law and to set precedents."

19. However, this is an application for a second-tier appeal. It is therefore covered by CPR 52.13 which states:

"52.13(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal.

(2) The Court of Appeal will not give permission unless it considers that-

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

That was introduced to give effect to section 55(1) of the Access to Justice Act 1999. It was considered by this court in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, at paragraphs 41 to 46. There Brooke LJ stated that judges of the quality of Lord Justice of Appeal were a scarce and valuable resource and it was important that they were used effectively. It would therefore no longer be possible to pursue a second appeal to the Court of Appeal merely because the appeal was properly arguable or had a real prospect of success. It is for that reason that only in special cases, where there is an important point of principle or practice or there is some other compelling reason, that permission to appeal will be granted for a second-tier appeal.

20. In my view it is quite clear, having read the papers, that this application does not come within CPR 52.13 and for that reason it would not be appropriate to grant permission to appeal.
21. However, I will shortly give reasons as to why I think it has no merit. Turning to the specific points that Mr Bourne wishes to argue. The Magna Carta cannot be relied upon to substantiate rights of appeal out of time. Here he is nearly two years out of time with no good reason as to why he has disregarded the rules.
22. The Articles of the European Convention on Human Rights to which he refers, are irrelevant to such an application. I cannot see there has been any breach of his rights when he has failed to carry out the step of applying in good time.
23. The Master's approach and that of the judges who considered his application are consistent, and indeed warranted having regard to the provisions of the CPR. The judge was correct that the delay by solicitors and changes in solicitors or waiting for legal aid is not a sufficient reason to justify delay in lodging an appeal after one year and ten months. In any event, Mr Bourne's case now seems to be that he did lodge and serve an appeal in May 1999, although such documentation does not bear this out.
24. In my view this is a case where the judge exercised his discretion having regard to the substantial delay that had happened and the fact that no adequate explanation had been given for it. In those circumstances I would have dismissed the application for permission, even if it had been an application for a first-tier appeal.

ORDER: Application for permission to appeal refused; copy of the judgment to be provided at public expense to the applicant.

(Order not part of approved judgment) ______________________________