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 NEWCASTLE UPON TYNE DISTRICT REGISTRY
(His Honour Judge McGonigal)

		Royal Courts of Justice Strand London, WC2 Friday, 15th November 2002

1. LORD JUSTICE KAY: This is an application for permission to appeal. It comes before the court for an oral hearing but the applicant has not attended. I work on the basis that he has been given and received notification of this hearing. There is no indication that he has communicated at all with the Office to suggest any problem in attending and therefore I have to consider whether I should deal with the matter or adjourn it. Having regard to my assessment of this matter, namely that there is no prospect whatsoever of it succeeding, it seems to me that I should proceed and deal with the matter: firstly, because any journey by the applicant would be unnecessary and he would have to travel a long way to find that his application was refused and, secondly, that it would in any event take up further court time which cannot be justified.
2. In brief, this was a claim brought by the claimant, who described himself as a management consultant from about 1994 to the present date. Until about June 1996 he ran a printing business known as Redcat Limited until that company was dissolved by the Registrar of Companies on 28th August 1998. The first defendant, Alexander Chaytor, is the chairman, director and majority shareholder in Alexander Developments (North East) Limited, the second defendant. The second defendant is and was at all material times concerned in house building. The claimant had business dealings with the first defendant and allegedly offered him informal advice until about 1994.
3. In 1994 an agreement was reached to formalise the relationship for the claimant to provide advice to the defendants. The second defendant allegedly agreed to pay the claimant £1,000 a month in consideration for his business advice, which the claimant alleges was increased to £2,500 a month in 1995 by mutual agreement. Under an alleged tripartite agreement made in 1996, a relationship was formalised under the following terms: (1) the second defendant would hire the claimant as a management consultant pursuant to the terms of an oral agreement, and (2) the first defendant would grant the claimant an option to purchase a number of the first defendant's shares in the second defendant pursuant to the terms of an alleged oral option agreement.
4. The claimant alleges that, in the alternative, the second defendant warranted to the claimant that it would procure the transfer to the claimant of the shares held by the first defendant, referred to in the option agreement, in consideration for the claimant's consulting services. A series of memoranda were allegedly generated between March and October 1996, although the agreement was never formally executed. The claimant states that stock options were an express term of the agreement. The defendants claim that there was no 1994 agreement and that the 1996 agreement never formally existed. The defendants also deny that a period of notice to terminate the proposed agreement was ever agreed.
5. The claimant claimed £104,408.73. The defendants counterclaimed £15,597.53, plus damages and interest. In a letter of 4th October 2001 from the claimant to his solicitors, he acknowledged that his chances of success at trial were only 50/50. A letter of 22nd October 2001 advised the claimant that the defendants offered no defence for liability to pay consulting fees of £15,000 likely to include VAT, and the claimant himself accepted that he was liable to repay £11,629 plus interest on the counterclaim.
6. In due course the claimant received advice from his solicitors that the matter ought to be compromised on the basis of those figures that were admitted. However he wanted to proceed and to pursue his full claim. The matter was referred to the Legal Services Commission to see whether, in the circumstances, they would continue to fund his case to trial. They declined to do so. The trial had been fixed for 5th November 2001. The claimant was not in a position to put his solicitors in funds at the time. Accordingly, they applied to come off the record. The claimant, acting in person, then applied to the judge for an adjournment. He contended that he was not in a position to represent himself properly at trial, that the matter was a complex one, and that he intended to sell his house in order that he could raise the necessary funds to pursue the matter to trial. Accordingly, he sought an adjournment of indefinite duration so that that could happen.
7. Before the judge, Judge McGonigal, at the hearing on 30th October 2001 he referred to the fact that he was not in good health and that there was only a short period to prepare for trial. He contended that in those circumstances it would be unfair to make him go on. The judge heard the application. He accepted that the claimant had been told two weeks prior to the hearing that Legal Services Commission funding had been withdrawn and that only then had he become a litigant in person. He acknowledged that the representation in the case was unequal, but he set against that the fact that the claimant had a very good personal knowledge of the case. The claimant had had the advice of solicitors until shortly before the trial would commence and, indeed, they had advised him specifically that his case was a weak case. The claimant referred to his medical condition. He called no evidence before the judge about it, save to produce drugs that he was taking. He made clear, as the judge held in his decision, that his medical condition was not the main reason for his adjournment.
8. The defendants countered the application by saying that the matter had already been continuing for two years. There would be significant costs wasted if there was an adjournment at that late stage and that, having regard to the assessment that had been made of the case, it would be unjust for them to have the matter adjourned.
9. The judge concluded that the case had to go on in the circumstances. He was satisfied that the claimant would be able to represent himself and made clear that, so far as there were any legal points, he would give assistance to the claimant in conducting his case. Accordingly, the application for an adjournment failed. It is against that decision that the applicant wishes to appeal.
10. In my judgment, that application is hopeless. This was a matter for the discretion of the judge. He had to weigh the competing factors on the two sides. I can see no possibility at all of the Court of Appeal being persuaded that he was not entitled to come to the conclusion that he did in all the circumstances.
11. The applicant further complains that the judge did not tell him that he had a right to appeal the decision. The judge was under no duty to inform him that he had a right of appeal and certainly that can be no proper basis upon which to grant permission. What happened thereafter is that the applicant started preparing for trial. He was then advised by his family that he should not go ahead with it and, having received that advice, he then decided to compromise the matter. There was a compromise agreed between the parties on the basis that each would abandon their respective claims, each would pay their own costs and the matter would rest there. There is nothing to suggest in the documentation that it was ever a term of that agreement that the agreement was subject to any possible right of appeal that the applicant might have. Therefore, even if there had been merit in the appeal, in my judgment it would have availed the applicant not at all because thereafter, after being refused his adjournment, he had settled the matter in a way that did not keep open for him a right to pursue any aspect of the matter. Thus, on that basis as well any proposed appeal was hopeless. For these reasons, clear as they are on the papers, I have no doubt at all that this is an application that should be refused, and I refuse it.
Order: Application refused.