England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM WANDSWORTH COUNTY COURT
(His Honour Judge Rose)

		The Royal Courts of Justice The Strand London Friday 1 March 2002

Friday 1 March 2002

1. LADY JUSTICE HALE: This is the defendants' application for permission to appeal against two orders made by His Honour Judge Rose in the Wandsworth County Court. First, on 20 July 2001, he struck out their defence and ordered that they be debarred from defending the action. Secondly, on 25 September 2001, he dealt with the substance of the case and made orders accordingly, to which I shall return.
2. There has been some delay in these applications coming before this court because the first application went to the High Court, whereas the second application came to this court. Thorpe LJ refused it on paper but on renewal he adjourned it because the first application was forthcoming before Patten J. Patten J then referred that first application to the Court of Appeal. Hence they are both before us now.
3. The case concerns a dispute between brothers about the beneficial ownership of a house, 67 Twilley Street, Earlsfield. This was bought in 1991 and conveyed into the joint names of the defendants, that is one brother and his wife. It is common ground that the claimant put up £58,850 for the purchase and also that the property was then in a dilapidated condition.
4. The claimant's case is that the original plan was to renovate the house and sell it and make a profit. After recoupment of his initial investment the profit would be distributed equally between the brothers. He thought that the house would be conveyed into the joint names of the brothers. However, he was later persuaded to modify the original plan. A local authority grant would be obtained towards the renovation. Therefore the defendant brother would have to live there for three years after payment of the grant. After renovation the property would be converted into three flats but nevertheless his case was that the plan was still to sell and split the proceeds. Thereafter the house was renovated with the help of a local authority grant and a mortgage from the HSBC. The three years since the payment of the grant have long gone by. The defendant brother and his wife are, however, still living in the property and now have two young children as well. It has not in reality been split into flats and they show no signs of moving out.
5. The defendants' case is that the £58,850 was an outright gift. It represented a share in money which had been given to the claimant brother by their father. The defendants' case is that the claimant always knew that the freehold would be conveyed to them. There was a plan to get a grant at the outset and indeed to convert the property into three flats. The plan was that they would live in one and the claimant would have income from the others. There was later an agreement that they hoped to pay the claimant back out of the proceeds of developing a paddock which is held in trust for the defendant brother's daughter, provided that the purpose of that trust, in finding a home for her, was first fulfilled.
6. These proceedings were begun in 1999. The claimant sought a declaration that the house was held on trust for the brothers. He sought an order for sale and he sought necessary accounting between the parties. Matters proceeded very slowly, it appears because of the defendants' non-adherence to the timetables laid down in the Rules and to some procedural orders.
7. On 7 January 2000 there was an order that the defence be struck out unless a fully pleaded defence was filed by 24 January 2000. If it was not, the defendants would be debarred from defending. That deadline was later extended slightly. The allocation hearing was relisted from June to July 2000. On 19 July 2000 there was an order for the defendants to provide a schedule of the cost of the building works, statements of accounts with the HSBC and documents concerning the local authority grant. There was an order on 4 September 2000 for them to file a schedule of the total costs plus supporting documents by 31 October, otherwise they would be debarred from defending. There were also orders for them to provide other information which was still outstanding. There was an order on 11 December that they should file witness statements, otherwise they would be debarred from defending. In January 2001 that deadline was extended again. In February, the hearing was fixed for 14 March 2001, having been brought forward, the defendant not appearing.
8. On 14 March 2000, with the defendants not in attendance, His Honour Judge Walker entered judgment for the claimant and dismissed any purported counterclaim. The question of the distribution of the proceeds of sale was adjourned. Further directions were given ancillary to that on 16 March 2001. This included an order that the defendants grant full access to a quantity surveyor for the claimant.
9. On 18 May 2001, however, the defendants both attended before His Honour Judge Winstanley. He set aside the judgment against them and amended the directions given for the further trial of the action. But his order contained the following provision:

"5) The defendants, on at least 72 hours prior written notice having been given to them:-

(i) permit Mr Anthony Parisi, the quantity surveyor, to enter 67 Twilley Street SW18 between the hours of 10.00 am and 5.00 pm Monday to Friday to inspect the whole of the property, for the purpose of valuing the works of improvement carried out to it.

(ii) permit Mr Richard Steed FRCS of Cook Steed Associates, a valuer instructed by the claimant, to value the property and to enter the premises between 10.00 and 5.00 pm Monday to Friday.

6) The claimant is entitled to apply in writing to the Court for an order that the defence of the defendants be struck out and they be debarred in defending, in the event that they fail to give access to Mr Parisi or Mr Steed in accordance with order 5) above."

10. On 20 July 2001 His Honour Judge Rose made the first order the subject of these applications. The reason that he made the order was that the first defendant made it quite plain to the judge that he was not going to comply with the order to permit access to be given to the expert. He made it quite plain that he considered that order to be in breach of his rights, in particular under Article 8 of the European Convention on Human Rights, the right to respect for his private and family life, his home and his correspondence.
11. The judge asked him, very clearly, whether he was prepared to obey His Honour Judge Winstanley's order, which had not been appealed, and the first defendant stated that he would not do so:

"If you ask me to turn reason, and logic and law upside-down and on its head, then the answer is: no, sir."

12. The second defendant, his wife, was also present at court. She tells us today that she had some misgivings about this but she did not feel able to have a public disagreement with her husband about this matter and therefore she did not indicate that she would be prepared to obey the court's order. It is in fact quite plain from the submissions made to us today that the first defendant still considers that the order made by His Honour Judge Winstanley was a breach of his rights under Article 8.
13. Having therefore concluded that the defence should be struck out and the defendants debarred from defending the claim, His Honour Judge Rose considered whether he could give judgment on the claim then and there. Very fairly, Mr King, who appeared on behalf of the claimant, pointed out that there would have to be a trial as to whether to make an order for the sale of the property and what was to happen to the proceeds. Further directions in connection with that were given in an order of 5 September 2001, which made clear that the issue before the court was whether it should make an order for sale.
14. That issue came before His Honour Judge Rose for trial on 25 September 2001. He refused a further request for an adjournment based on the non-appearance of a babysitter. The first defendant was present for the morning but left at the end of the morning. The second defendant was not present. The order that he made was a long and detailed one but the important parts for current purposes are:

"1. It is Declared as follows:

(a) The 1st and 2nd Defendants own the legal interest in the freehold of the property at and known as 67 Twilley Street, Earlsfield, London, SW18 (the property) on a trust of land (the trust) within the meaning of the Trusts of Land and Appointment of Trustees Act 1996 (the Act), the said trust being a trust for sale.

(b) The beneficial interest under the trust is held by the Claimant and the 1st Defendant as tenants in common and equal shares; the proceeds of the said sale, (i) after payment of all costs occasioned by and attendant upon the sale, and (ii) after redemption of all legal charges upon the property; and (iii) after payment to the Claimant of the sum of £58,855.21 being the amount paid by the Claimant for the purchase of the property (the priority of the said payments to be as aforesaid), to be divided equally between the Claimant and the 1st Defendant, save that the 1st Defendant is to account to the Claimant for that amount of the sum [secured] by the legal charge as aforesaid which exceeds the amount of £70,807.39 expended by the 1st Defendant on the refurbishment of the property.

2. The court hereby orders the property to be sold forthwith.

.... ....

(4) The 1st Defendant and the 2nd Defendant are ordered to vacate the property on or before 4pm on the 23 October 2001."

15. The points made by the defendants in seeking permission to appeal against those orders run together and, having filed separate skeleton arguments dealing with each order, they have compressed them into a single skeleton argument for us today.
16. In relation to the first order they argue that it was against their human rights and that they would lose their home as result. They also make it quite plain that they considered that letting the claimant's expert in their home violated their human rights. In relation to the second, they argue that they did not owe the claimant any money; they had not been given a fair trial; it was their only home; the court should not have ordered that it be sold; and they refer to the provisions of sections 14 and 15 of the 1996 Act and the case of Mortgage Corporation v Shaire to the effect that family rights could outweigh creditors' rights. They further argue that the whole proceeding violates their human rights and in particular Article 6, the right to a fair trial; Article 8, the right to respect for their private and family life, their home and their correspondence; and the First Protocol, respect for property.
17. The difficulty facing the applicants in relation to those arguments is that the loss of a home is not contrary to Article 8 of the European Convention on Human Rights if it is justified in order to vindicate the rights of somebody else. Sadly, these courts have to deprive people of their home very frequently. These are people who do not have absolute rights in relation to their home; other people (often landlords or mortgagees or, as in this case, another person with a claim to a share in the ownership of the home) have rights too, which the courts may have to vindicate.
18. Still less is it a breach of Article 8 to be obliged to allow an expert into the home for the purpose of making a report on matters relevant to a pending court action in a situation in which the court has ordered that such access be given. Of course there is room for argument about whether that should be ordered and sometimes there is good reason for both parties to have an expert or for the court to appoint a jointly-instructed expert, or any one of a number of other solutions to the problem of putting the right evidence before the court. But there is no doubt that the court is entitled to make an order such as that made by His Honour Judge Winstanley, should it consider that an appropriate order to make; and there was no appeal against that order.
19. As far as the right to a fair trial under Article 6 is concerned, it is accepted that to debar either party from putting their case fully before the court is a strong thing to do. But the courts are entitled, under Article 6, to set procedures and still more are they entitled to have their orders obeyed. The courts have a duty to be fair to both sides. It is a two-way process. No system of justice can work if it puts up with people not obeying the orders of a court. In the circumstances of this particular case, in the history of the proceedings as I have related it, it is difficult to see what else His Honour Judge Rose could have done when faced by the adamant opposition of the defendant to obeying the valid order of a court.
20. The first defendant says that he had no idea that his objections and his refusal to obey the court order would have such drastic consequences. He is, however, an intelligent and very well-educated man and he had already, in the course of the proceedings, received several orders making it plain that his position was in danger in the proceedings if he did not do as the court ordered. That had included the court going so far as to give judgment against him, although as that was in his absence it was subsequently set aside. He cannot, as an intelligent person, claim to be unaware of the risks of taking the course that he did.
21. For my part, therefore, the order made by His Honour Judge Rose in July was one which the judge was entitled to make and indeed it is difficult to see what else he could have done. I would refuse permission to appeal against that order.
22. Having struck out the defence, the judge then had in September to do the best that he could on the evidence before him. He had witness statements from both parties. He also had a large amount of documentary material. This is not before us but it is clear that such documentary material was produced. He considered the factors governing the exercise of the court's discretion, which are set out in section 15 of the 1996 Act. He accepted the claimant's evidence as to the purpose of the trust. The amended conversion purpose had not been put into effect. The interests of the family should not be given so much weight where it was not the initial purpose of the trust that it should be a home for the family. Indeed, it was a contravention of the purpose of the trust to postpone matters in this way. That was the reason that he made the orders that he did.
23. In considering those orders it is relevant that it is common ground that the house was bought in 1991 and subsequently renovated using money supplied by the claimant, a loan from the bank, and a local authority improvement grant. The defendants have no doubt put a great deal of imagination and effort into making it a comfortable home but they have had the benefit of living there for more than ten years. For my part, in relation to the disposal of the case, given the order made in July, I can see no basis for interfering with the decision made by His Honour Judge Rose as to the eventual outcome. I would refuse permission to appeal against that order as well.
24. LORD JUSTICE ROBERT WALKER: I agree. So these applications are dismissed.
ORDER: Applications dismissed. The claimant to have an order for possession, not to be enforced before 4.00 pm on Friday 5 April 2002.
25. (Order not part of approved judgment)