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 SHOREDITCH COUNTY COURT
(His Honour Judge Cotran)

		Royal Courts of Justice Strand London WC2 Monday 29th April, 2002

1. LORD JUSTICE TUCKEY: This is a renewed application by the defendants for permission to appeal from a decision of Judge Cotran in the Shoreditch County Court. He set aside an order made by a Deputy District Judge in the Luton County Court, who had dismissed an application by the claimant to set aside an earlier order made in that court declaring that his claim had been dismissed.
2. The history goes back to 1988, when the claimant was struck by a lorry. He alleges that the defendant solicitors negligently allowed his claim for personal injuries to become statute-barred.
3. Other solicitors started these proceedings in their local county court in Milton Keynes. The claimant lives and the defendant solicitors practice in the East End of London. On 22nd February 2001 the claimant's legal aid certificate was discharged and his solicitors came off the record.
4. A week after the claimant's legal aid certificate was discharged, he applied for the proceedings to be transferred to his local county court, that is to say the Shoreditch County Court. He explained in his application that he was now acting in person and asked for a pre-trial review which had previously been fixed for hearing on 5th March to be vacated.
5. It is not clear what happened to this application. It is dated 1st March and there is no reason to believe that it was not received by the court before 5th March. But for one reason or another it does not appear to have been before the judge who heard the pre-trial review on 5th March. Had it been before the judge on that occasion, I would expect the order he made to contain some record of his having considered it, but it does not. But the judge did make three unless orders to be complied with by 1st April.
6. The court's application to transfer was not heard until 23rd April, when it came before the same judge who had made the unless order. On that occasion the claimant did not attend. The judge dismissed his application for a transfer and declared that the action stood dismissed because, no doubt, of the non-compliance with the earlier unless orders which he had made.
7. The Deputy District Judge was asked to set aside the judge's order of 23rd April on the grounds that the claimant still wanted his case to be transferred to the Shoreditch County Court and, as he said, was unable to travel very far because of back problems. This application was heard on 19th June, when, as I have said, it was dismissed. Again the claimant did not attend.
8. The claimant applied to set aside the Deputy District Judge's order on the ground that he wanted his case heard in the Shoreditch County Court. After something of a hiatus, this application was transferred to the Shoreditch County Court where it came before Judge Cotran and he made the order which is the subject of this proposed appeal. Both the claimant and counsel for the applicants appeared before the judge on that occasion. There was a somewhat protracted exchange between the judge and counsel. The claimant made representations to the judge about the need to have his case heard in Shoreditch and explained to the judge the difficulties he had in travelling. which he gave as his reason for not having attended the earlier hearings. The judge essentially took the view that it was unjust in all the circumstances for the court in Luton to have made unless orders without having considered the application for a transfer.
9. The proposed grounds of appeal criticise the judge in a number of respects. First, they say that he did not approach his task in the way the Civil Procedure Rules now require. In other words, he applied the wrong the test. He was only permitted to allow the appeal if the lower court's decision was wrong or if it was unjust because of some serious procedural or other irregularity.
10. Mr Tyrell, who appears today for the applicants, says that it cannot possibly be said that the Deputy District Judge's decision was wrong. She fully and accurately set out the facts of the case and applied her mind to the relevant provisions of the CPR in reaching the conclusion she did, noting, among other things, that the applicant had not supported his application for a transfer with any medical evidence as the rules require. Mr Tyrell said that it is not enough for a judge nowadays, hearing an appeal of this kind, to substitute his own view for that of the judge below simply because he does not agree with it.
11. Further, Mr Tyrell submits that there was no serious procedural or other irregularity in what happened here. There was nothing irregular about the judge making unless orders without first hearing the claimant's application for a transfer.
12. I am afraid I do not accept this last argument. It does seem to me that if a litigant finds himself unrepresented, and explains to the court that he is now acting in person and that he has difficulty in attending a court some distance away from his own home (and indeed the home of the defendants) that it is incumbent upon the court to consider such an application before making further procedural orders, particularly procedural orders like unless orders which may have dire consequences.
13. Here the truth is that this application for a transfer was not heard until the unless orders made by the judge had run their course and had the effect of dismissing the claimant's claim. It seems to me that it was open to Judge Cotran to take the view that this was unjust, and to characterise it as a serious procedural or other irregularity. So there was the jurisdictional basis for Judge Cotran to set aside the order in the way he did.
14. Nevertheless, Mr Tyrell says that he should not have done so. He took me through the history of the matter to show that there were in fact no medical reasons for the application for transfer; that the applicant had not supplied any medical evidence to support his application; that in effect he had played fast and loose with the system; and that he was not entitled simply to apply for a transfer and not turn up to court in the way that he did, in the hope that the court would agree to his request.
15. These are telling points and they might have led many judges to conclude, at the end of the day, that it would not be right to set aside the orders which had been made. But it seems to me, considering now at this stage the same points as Mr Tyrell was putting about the Deputy District Judge's decision, that whilst many judges might not have made the order that Judge Cotran did, one cannot say that it was not open to him to do so. He was entitled to take a view of this history that it was unjust and, despite the fact that the claimant had not turned up, that it would be unfair to him, in all the circumstances, for his claim now to stand dismissed. As I have said, the essence of his decision was, it seems to me, that the application for a transfer should not have been heard before any unless orders were made. I think he was entitled to reach this conclusion.
16. When I refused permission in this case on paper I said:

"I can well understand why the applicant may feel generally aggrieved about the progress of this claim, since the claimant's solicitor came off the record ... However, at the end of the day the judge's simple point was that the claimant's application to have the case transferred to Shoreditch was not heard before unless orders were made against him and took effect and that this was unjust. That was a view he was entitled to take and provided a sufficient ground for allowing the appeal from the Deputy District Judge. On this analysis I do not think this application [which, I interpolate, is a second appeal] raises any important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it."

17. Despite Mr Tyrell's able submissions, I remain of that view. This application must therefore be dismissed.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)