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 NORWICH COUNTY COURT
(His Honour Judge Holt)

		Royal Courts of Justice Strand London WC2 Wednesday, 10th April 2002

Wednesday, 10th April 2002

1. LORD JUSTICE BUXTON: This is an application for permission to appeal from the judgment of His Honour Judge Holt in the Ipswich Crown Court, delivered as long ago as 11th November 1999. The applicant, Mr Smith, appears in this application on his own behalf, although he was represented at the trial before His Honour Judge Holt by counsel and solicitors.
2. The brief nature of the proceedings was that Mr Smith complained that certain property that he had leased to the defendants, a Mr and Mrs Hughes, had been delivered up at the end of the term in a damaged and dirty condition and that very significant costs had been incurred by Mr Smith in putting it into order; or, alternatively, would have been incurred by him if he had been able to put in into order so as to sell it for the price that he thought it should properly attract. Evidence was given on both sides, at some length, by two expert surveyors, and also by the principal protagonists, and by one or two other people, all of this being directed to the condition of the property before and after Mr and Mrs Hughes moved into it.
3. At the conclusion of the proceedings Mr Smith did not seek to appeal from Judge Holt's judgment, which effectively rejected the whole of the case brought by Mr Smith, in which the judge accepted the evidence given by Mr and Mrs Hughes and preferred the evidence of their expert to that of Mr Smith. He did not file this application in this court until 22nd June 2001, it therefore being some 17 months out of time. He had, I will record, sought to file the application in the Norwich County Court, and it is so stamped by that court on 9th March 2001. Mr Smith's explanation for this is, as he says in his written notice of application, that he was not advised about the time limits, and it was only when he inquired at the Norwich County Court, in connection, I think, with assessment of costs in the present case, in January 2001 that he was told that it was open to him to apply for permission to appeal to this court. He has also explained to me that he did not have the necessary funds in November 1999 to pursue the matter further, and he had made an application for legal aid in respect of a different dispute - as I understand it nothing to do with the present application - where the legal aid authority had dealt with the matter, in his view, unsatisfactorily and he had been deterred from approaching them in respect of this particular application. When I say "deterred", I mean that he himself felt that he did not want to become engaged with the legal aid authorities in connection with it.
4. However all that may be, I cannot accept that this matter has been pursued with the despatch that this court requires. This is not a case where the applicant was acting for himself at the trial and, therefore, may have been unaware of the possibility of appealing had such grounds for appeal existed. As I have said, he was advised by counsel and solicitors, and it would undoubtedly have been their responsibility, if they thought that grounds for appeal existed, to advise Mr Smith and assist him - if they thought that there were a basis for such assistance - to approach the necessary legal aid authorities or, at least, to tell him how to go about it. None of that was done, and Mr Smith, I fear, cannot now claim to come here, over two years after the original proceedings when the necessary steps were not taken at the right time. I am also bound to observe that he received the advice that he says he eventually received that it was possible - I think it went no further than that - to apply to this court on 2nd January 2001. It was, nonetheless, even then, three months before he sought to file the papers in the Norwich County Court, and a further three months even after that date until he effectively appealed to this court. That delay again, I fear, has to count against him. I would, therefore, not permit this matter to go forward on that ground alone. However, quite apart from that, it seems to me that there is no prospect of this matter being satisfactorily pursued in the Court of Appeal even if I were minded to give permission for it.
5. To summarise the grounds that Mr Smith relies on (and most of them involve the conduct of the trial, which is a matter that in any event need to be pursued expeditiously because memories fail), they are as follows.
6. First of all, it appears that the judge stated at some stage of the proceedings that he was familiar with both of the experts on each side because he had encountered them when he was in practice at the Bar. Mr Smith says in Ground 2 of his grounds "it has always bothered us" that Judge Holt told what Mr Smith characterises as a lie. Apparently, Mr Smith's expert, Mr Jellicoe, has searched his records and now says that he in fact had never had dealings with Judge Holt. He says that in a letter of 27th February 2001. If this was a matter that was of concern (as he says) to the applicant at the time, he should have sought confirmation of his fears from Mr Jellicoe and received it at the time and not 15 months later. Further and in any event, if one reads the judgment in this case, it is apparent to me that Judge Holt considered the expert evidence on each side with considerable care, and analysed it in a careful and, as far as I can see, even-handed way which betrays no suggestion that he was favouring the Hughes' expert just because he had previously encountered him in professional practice.
7. The third ground is that Judge Holt, Mr Smith now thinks, had acted for Mr Smith and his wife as counsel in a case in 1983 at the end of which there was, apparently, an unfortunate dispute about fees. Whether or not that was the case, the detail of it is something which for present purposes I am prepared to accept. But if Mr Smith had forgotten about his dealings with Judge Holt and only realised about them at some later date after the trial, it seems to me extremely unlikely that Judge Holt would have remembered Mr Smith. In any event, as I have already said, there is, in my view, no sign in his judgment that he reached any unfavourable view of Mr Smith on any basis other than the evidence that Mr Smith gave to him in the trial.
8. The remainder of the complaints are to do with Judge Holt's comportment during the trial; complaints made by Mr Smith's counsel of comments to him, and apparently the judge's unduly favourable demeanour when the female defendant was giving evidence. That is quintessentially a matter that, if it is going to be pursued, needs to be pursued on the basis of proper evidence as to what the judge did: something that, if it was justified, would have been fresh in the mind of those advising Mr Smith immediately after the trial; and something that, if there was force in any of these complaints, would have been seen there and then as a basis for appeal.
9. The final complaint is that the judge assessed damages on the basis of the damage to the value of the reversion. In my view, he was not in fact wrong in so doing. But the point is irrelevant because he also found that there had effectively been no repairment losses incurred by the claimants in the course of the defendants' tenure. Even, therefore, proceeding on the basis urged by Mr Smith, the outcome of this case would have been the same.
10. I see no ground for appealing in this case. The judge made findings that he was entitled to do. There is nothing in his judgment that suggests that he approached the matter in the biased way that Mr Smith claims, and I would not give permission for this case to be pursued.
Order: Application refused.