England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HER HONOUR JUDGE FABER)

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

Tuesday, 26th February 2002

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Dennis Weller, the first defendant in the proceedings, for permission to appeal against an order made by Her Honour Judge Faber on 7 December 2001, refusing his application to set aside an earlier order made by His Honour Judge Medawar QC on 26 October 2001.
2. There is a considerable element of urgency about this application, since a possession order made earlier in the proceedings in favour of the claimant, Scottish Widows Fund & Life Assurance Society, is due to be executed in two days' time. Hence Mr Weller also seeks a stay of execution of the possession order over the hearing of the appeal should permission to appeal be granted. The application has, in view of the urgency, been directed by Schiemann LJ to be heard on notice.
3. Mr Weller appears on this application by Miss Elizabeth Birch of counsel. Scottish Widows appears by Mr Paul Sinclair of counsel.
4. The background to the application is in summary as follows.
5. On 9 June 1992 Scottish Widows entered into a guarantee in the sum of £100,000 relating to Mr Weller's liabilities as a name at Lloyds in consideration for a legal charge over his property at No.10 Yevele Way, Hornchurch, Essex. Mr Weller apparently ran up large losses at Lloyds and the guarantee was called upon in February 1997. Scottish Widows made formal demand on Mr Weller for the £100,000 but the demand was not met and no payment was made.
6. Proceedings were then commenced by Scottish Widows for possession of the property. By way of defence Mr Weller sought to rely on a defence in law which was due to be determined by the Court of Appeal in Aldrich and Others v Norwich Union Life Insurance Company.
7. On 15 May 2000, however, Mr and Mrs Weller (she being the second defendant in the action) both being represented by counsel, entered into a consent order with Scottish Widows whereby they agreed (subject only to applications being made under the Administration of Justice Acts) to an immediate order for possession if the House of Lords should refuse leave to appeal in the Aldrich litigation. No application has subsequently been made to set that order aside. On 1 November 2000 a permission order was made by District Judge Crispin.
8. In due course the House of Lords did refuse leave to appeal in the Aldrich litigation. Mr Weller thereupon made an application under the Administration of Justice Acts. This application was refused by Deputy District Judge Fowell on 1 March 2000. On 7 March 2001 Mr Weller applied for permission to appeal out of time against Deputy District Judge Fowell's order. That application was refused on paper by His Honour Judge Ryland on 6 August 2001. Mr Weller renewed the application but failed to appear on the day of the hearing, which had earlier been adjourned at his request. Instead, he sent a fax to the court the previous day, 25 October 2001, asking for the matter to be taken out of the list. Accordingly, the application came before His Honour Judge Medawar on 26 October 2001 when he dismissed it. Mr Weller then appealed against that order and his appeal was refused by Her Honour Judge Faber on 7 December 2001. This is the order which is the subject of the present application for permission to appeal. Her Honour Judge Faber's order recites that Mr Weller was represented at the hearing by Mr Simons, a lay adviser from Romford Independent Legal Advice Centre.
9. As Miss Birch accepts, if permission to appeal is granted, the proposed appeal would be a second-tier appeal, to which Rule 52.13 of the Civil Procedure Rules applies. Paragraph 1 of that rule provides that permission is required from the Court of Appeal for any second-tier appeal. Paragraph 2 of the Rule is in the following terms:

"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."

10. I, turn, then, to Mr Weller's proposed grounds of appeal as set out in an annex to section 7 of his appellant's notice.
11. The first three grounds of appeal relate to the hearing before His Honour Judge Medawar QC. As I indicated earlier, no one attended before the judge on that occasion. Mr Weller contends, however, that his advisers should have been present, and that he was not aware that there was a possibility that the application would be determined in his absence. In my judgment there can be no basis for appeal against Her Honour Judge Faber's order on the grounds of non-attendance before His Honour Judge Medawar. It is quite clear from the fax which Mr Weller sent to the court the previous day that he was not proposing to attend. If he was advised that he would not be at risk by not attending then he must take that up with his advisers. But in my judgment there is no substance it those first three grounds of appeal.
12. By ground 4 of his grounds of appeal Mr Weller seeks to advance the contention that he never consented to the order of 15 May 2000 (to which I referred earlier). However, the fact is that his counsel, Mr Rupert de Cruz, did consent on his behalf, and there can be no doubt, in my judgment, that even if Mr de Cruz did not have actual authority to give such consent (and I am certainly not to be taken as suggesting that there is any ground for thinking that he lacked the requisite authority) he certainly had ostensible authority to do so. In any event, this is water under the bridge. There was, as I indicated earlier, no application to set aside the order. Instead, subsequent applications were made under the Administration of Justice Acts on the basis that the order was effective; and indeed an order for possession was made pursuant to it by District Judge Crispin on 1 November 2000. There is, therefore, in my judgment, no substance in ground 4 of Mr Weller's grounds of appeal.
13. In ground 5 Mr Weller seeks to assert various defences to Scottish Widow's claim. Once again that is water under the bridge, in my judgment, given the order of 15 May 2000 and the various orders made subsequently.
14. In ground 6 he asserts that he has a "counterclaim" against Lloyds. But Lloyds are not and have not been parties to the proceedings.
15. Mr Weller goes on to submit that the present proceedings should be stayed pending the outcome of an appeal by the Names in the Lloyds v Jaffray litigation. Miss Birch tells me (and I accept) that an appeal against Cresswell J's determination of preliminary issues is due to be heard by the Court of Appeal within the next month or so. Miss Birch submits that that fact is of direct relevance in the context of this application in that should the Names succeed in overturning Cresswell J's decision, then the way will be open for the names to seek recovery from Lloyds of the sums which Lloyds has demanded from them. On the premise that that can be achieved within a reasonable timescale Miss Birch submits that the court ought not to allow the possession order to be executed, given what she submits is a real prospect of some funds becoming available to Mr Weller through his claims against Lloyds.
16. Miss Birch has referred me to Re Bayoil [1999] 1 WLR 14, a case involving a winding-up petition. Although the facts in that case were far removed from those in the instant case she submits that there is an analogy between a company which has a genuine and serious counterclaim overtopping the petitioner's debt on the one hand, and the instant case where the question is whether, as she submits, Mr Weller has a genuine claim or counterclaim which could yield funds enabling him to satisfy any indebtedness in Scottish Widows and justifying the staying of the possession order.
17. I can, for my part, see no substance in those submissions. The Lloyds v Jaffray litigation has reached a stage where the preliminary issues are about to come before the Court of Appeal, but any prospect of Mr Weller achieving a payment from Lloyds must be a long way down the line and, I would have thought, highly speculative in any event. But so far as the present application is concerned none of this seems to me to be material. This is an appeal against Her Honour Judge Faber's order of 7 December 2001. I can see no basis upon which that order can be the subject of a successful challenge based upon the prospect, which may be remote or which may not, of Mr Weller recovering some money from Lloyds.
18. Mr Weller also asserts that he has a substantial counterclaim against Scottish Widows which he wishes to pursue. I have been shown a draft pleading, in which a counterclaim is pleaded, in the sum of about £583,000. However, that does not, in my judgment, affect the validity of the order of 15 May 2000 or of the possession order made pursuant to it by District Judge Crispin on 1 November 2000.
19. Returning, therefore, to rule 52.13 of the Civil Procedure Rules, neither of the criteria set out in Rule 52.13(2) is met in the instant case. In any event, the proposed appeal has, in my judgment, no real prospect of success.
20. I accordingly refuse the application for permission to appeal against the order of 7 December 2001 and with it the application for a stay of the possession order.
(Application dismissed with costs; costs summarily assessed in the sum of £1795.40, including VAT).