England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Cowell)

		The Royal Courts of Justice The Strand London Thursday 14 March 2002

Thursday 14 March 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal. It is sought to reverse a judgment of His Honour Judge Cowell, given on 18 January 2002, whereby the judge dismissed the appeal of Mr Olatawura against a decision of District Judge Langley on 11 December 2001. The judge ordered, amongst other things, that:

"If £5,000 is not paid into court by the Claimant [the present applicant] by 4.00pm on 1 January 2002, this action be dismissed and the Trial Date of 14 February 2002 be vacated."

2. The defendant had sought summary judgment on a claim for about £30,000 made by the applicant.
3. It is not necessary to set out the facts in any detail. I refer only to the first paragraph of Judge Cowell's judgment:

"The claimant, Mr Olatawura, worked for the defendant, Mr Abiloye -- the defendant being a solicitor -- in his practice as a solicitor. The claim brought by the claimant against the defendant is to be paid according to some invoices which he served upon the defendant. The defendant's case is that there was some kind of profit sharing arrangement. The matter has yet to be tried."

4. The defendant sought summary judgment. There was also an application by the present applicant for summary judgment. That was not adjudicated upon by Judge Cowell, who noted in his order that the claimant had withdrawn the same. The applicant also has a claim that the defendant be committed for contempt of court. The judge ordered that such application be not heard until after the trial of the action. Thus the position was that a trial date was fixed, but that the action was to be dismissed unless the sum of £5,000 was first paid into Court by the applicant.
5. It was in relation to that requirement to pay the money into court, previously ordered by District Judge Langley, that the applicant appealed to Judge Cowell. In fact the money has been paid into court but the trial date was vacated and a fresh date has been fixed: that is 19 April 2002.
6. The applicant nevertheless seeks permission to appeal. He does so on the basis that although he is legally qualified he wishes to be legally represented at the trial in the county court, partly for the advice he would receive and partly, he says, because his health is not good. It is only if he is able to have the £5,000 out of court, he tells us, that he will be able to afford legal representation at the county court trial.
7. This is a renewed application for permission to appeal. I refused the application on paper. It is a second appeal, so that permission will not be given, according to the Rules, unless the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it. Having heard the applicant, and having read further material which he has supplied since I gave my decision in writing, there are two points which concern me.
8. I express the first by reference to a note of judgment which has been supplied by the district judge. That appears under cover of a letter to His Honour Judge Cowell dated 9 January 2002, in which the district judge stated:

"I attach a note which I have done with my reasons for making the security for costs order, insofar as I remember them. I hope they are of some use to you."

9. The district judge's document consists of seven paragraphs over three pages and sets out a number of grounds upon which the order was made. The judge stated:

"I did give a reasoned judgment in this case and I do not understand why the Claimant has not obtained a copy. I assume that the only part of the order the subject of the appeal is the order for security for costs. I have reread all my notes from both hearings and can recall the essential reasons why I made the order for security for costs."

10. There had been a hearing on 20 November 2001 and a further hearing on 11 December. In her note of reasons the judge expresses in strong terms the adverse view she had formed as to the manner in which the applicant was presenting his case. The reasons refer to CPR Part 24 Practice Direction paragraph 5.2; to Part 44.3(4) and (5); to a commentary at Part 3.1.5 of the current edition of the White Book; to part 3.1(2)(m) and to part 1.3.
11. The applicant challenges the power of the district judge to make the order she did. No application had been made for security for costs, though that is the order which in her reasons the district judge said she made, commenting that:

"I determined the Defendant's application for summary judgment and made no order on it save for the security for costs."

12. Judge Cowell dismissed the appeal, stating in a summary dated 18 January 2002 that in his view the district judge had jurisdiction to make the order. The full transcript of Judge Cowell's judgment is now available. It has to be said that he too took an adverse view of the manner in which the applicant was conducting the litigation. What in substance the district judge was doing, it appears to me, was to have a sum of money in court which would give the defendant security, but it has to be said that the provisions relied on are provisions other than those provided in the CPR for security for costs. There was no money claim against the applicant, so that it is difficult to see how the payment required can be justified under Part 24 as a condition of being allowed to proceed with the action upon an application against him for summary judgment. It may be that the most likely part of the CPR to give jurisdiction is Part 3.1(2)(m) but in my judgment it is arguable that the rule does not cover the present situation; though I add that in my view it is also arguable that it does.
13. The second point arises out of the failure of the county court to supply a transcript of the ruling of the district judge. It was believed that the tape had been lost. In the statement now provided by the applicant, he states that in the event a transcript was prepared, upon the tape being found, and has been sent to the judge. I refer to paragraph 7 of a chronology dated 13 March 2002. Unfortunately the approved transcript has not yet been provided. One of the reasons I adjourned the case when, sitting alone, I first heard the application was in order to see the transcript which the applicant had told me orally was being prepared.
14. The applicant submits that the judgment was a short one and he submits that the points upon which the district judge relied as her reasons for believing she had jurisdiction to make the order were not canvassed at the hearing. The applicant also seeks to allege that he has not been given a fair hearing and that the decision should be quashed on that ground. The weight of that argument cannot be assessed until the transcript becomes available, and it is to be hoped that it will be disclosed to the applicant in the very near future.
15. I would give permission to appeal on both grounds. I am conscious that this is a second appeal, but it does raise a fundamental point on the construction of the Rules as to whether a judge who is not satisfied about the way in which litigation is being conducted and believes that conduct of the kind described by the district judge in her reasons has occurred, is, in circumstances of a claim such as the present, entitled to make the order she did.
16. Questions of fair hearing are also of great importance and I have expressed my concern about the absence of a transcript, even now, of the hearing on the 11 December. I should say that I have been supplied, since the last hearing, with other transcripts but the one which is important for present purposes, the transcript of the judgment, is not available.
17. In those circumstances, I would propose to grant permission to appeal. I have pointed out more than once to the applicant that the consequences of the grant include the fact that the hearing in the county court will not be able to proceed on 19 April. It is his claim and the result of the present application and its success is that the claim will inevitably be deferred. With knowledge of that, the applicant has persisted in the application for permission to appeal. He will plainly need to consider whether his grounds of appeal need any amendment as a result of the transcript. He should, of course, supply the transcript to the Court and to his opponent as soon as it becomes available. Any submissions -- which may or may not necessitate amendment of the grounds of appeal: that is a matter for him -- should be prepared as soon as possible. If he does have any application to amend the grounds of appeal, that will be determined by the court hearing the substantive appeal.
18. The applicant should also disclose the note which he says he has of the judgment of 11 December. He says that he has also asked for the defendant to supply his note of the judgment and the defendant has refused. That is a matter for him, but if any point does arise upon the content of the transcript when it emerges, then plainly the applicant should provide the court with his own record. He says he has a record but does not have it with him today. That should be typed and disclosed to the court so that the court has the all the evidence it may have upon the circumstances of the judgment of 11 December. That, of course, only arises if the applicant seeks to challenge, on the ground of a fair hearing or any other ground, the reasons in the transcript to be supplied. I would grant permission to appeal on that basis.
19. LORD JUSTICE LONGMORE: I agree that permission to appeal should be granted in this case for the reasons which my Lord has given. I would add only this: that it is perhaps unfortunate that on this adjourned hearing we still do not have the transcript of the judgment of the district judge. The applicant (now the appellant) informs us that the district judge has corrected a transcript prepared by the transcribers but wishes to see the fully corrected form of her transcript before it is released to the appellant. I would express my hope that that should now be done as soon as ever possible.
ORDER: Application for permission to appeal allowed. Application for expedition allowed: case to be listed (with a time estimate of 3-4 hours) as soon as possible after the transcript of District Judge Langley's ruling of 11 December 2001 has been received by the Court Office. Copies of the expedited transcript of this judgment to be provided to the parties at public expense. (Order not part of approved judgment)