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 MANCHESTER COUNTY COURT
(Mr Recorder Berkley QC)

		Royal Courts of Justice Strand London WC2 Friday, 24th May 2002

Friday, 24th May 2002

1. LORD JUSTICE PETER GIBSON: This is the adjourned hearing of an application by David Tamina for permission to appeal out of time from the order of Mr Recorder Berkley QC in the Manchester County Court on 22nd June 2001. By that order the Recorder refused the claimant's application for an adjournment and after hearing the evidence gave judgment for the defendant, Principal Hotels ("Principal"), with costs. Mr Tamina had 14 days in which to file his Appellant's Notice. He did not do so until 13th August 2001. He did not at that time put in evidence to explain his delay. He did so only when this court pointed out to him that he needed to do so. He has said in the affidavit that he did not apply in time because he was still pursuing investigations and he thought it reasonable to request an extension of time in his Appellant's Notice. That only asks for an extension until 31st July, so that in any event it was inadequate as an explanation of the delay until 13th August. Mr Tamina also said he needed an extension of time to obtain the transcript of the judgment, but he does not say when he first applied for the transcript, nor when it was obtained. He has not satisfied me that he has a good excuse for the delay. However, I will look at the substance of his proposed appeal to see if this has sufficient merit to outweigh his failure to explain his delay.
2. The unusual facts are these. On 25th May 1997, Mr Tamina, who had previously worked in hotels since about 1988, commenced employment as a porter in the catering department of the Metropole Hotel in Leeds. The hotel is owned and managed by Principal. On 21st January 1997 he attended at the local Leeds General Infirmary having drunk about 200 millilitres of chlorinated trisodiumphosphate, a bleaching agent, which caused him internal physical injury. On 20th July 2000, on the last day of the three- year limitation period, he commenced proceedings against Principal. In his particulars of claim drafted by counsel he claimed that on 21st July 1997, on arrival at work at the hotel, he went to the dispensing machine in the kitchen to obtain a drink of orange juice, that under the dispenser in the machine was a three-quarters full cup of orange liquid, which he assumed was orange juice, that he drank the liquid, gulping it down in one go, and that his injury was caused by the negligence and/or breach of statutory duty or principle. In the particulars given of the last allegation, he said that Principal caused the creation of a poisoning hazard in permitting a cup containing Diversolv, which had the appearance of orange juice, to be left in an orange juice dispensing machine. He claimed that he suffered personal injuries, for which he claimed damages. He was later to give accounts inconsistent with what was pleaded (in a letter from his solicitors to his medical expert, in his witness statement and in his oral evidence) as to where he found the liquid which he drank.

Principal defended the claim and denied negligence.

3. On 10th October 2000 District Judge Jones allocated the case to the multi-track and directed that liability be tried as a preliminary issue. He ordered standard disclosure by list by 10th November 2000 and that witness evidence be exchanged on 5th January 2001. All that was done at a time when Mr Tamina had solicitors acting for him. The District Judge also directed that the action be placed in a trial window in March with a four-hour estimate for the hearing.
4. On 15th January 2001 the county court received an application from Mr Tamina's solicitors to cease to act for Mr Tamina. Mr Tamina told me that he had a disagreement with the solicitors. It appears that it was over payment. A district judge ordered that his solicitors cease to act on 18th January.
5. On 24th January the court's computer records show that his solicitors ceased to act for him and his own contact details were updated to show his address at 22 Sandywell Close, Manchester. All court computer generated orders and letters will automatically have been sent to that address. On 13th February 2001 the file was referred to a district judge, who the next day ordered a directions hearing to be treated as urgent business. At the foot of his manuscript order the district judge wrote that Mr Tamina's solicitors had ceased acting and that the notice of appointment should be sent to Mr Tamina personally. On 16th February 2001 notices that there was to be a directions hearing on 23rd February were sent to Mr Tamina and to the solicitors for Principal. But Mr Tamina says that he never received the notice, although Principal, which appear to have received all the communications sent at the same time as communications from the court sent to Mr Tamina, did receive them.
6. At the hearing on 23rd February, attended only by Principal, the Deputy District Judge ordered that the trial of the issue of liability be listed for a day's hearing on 22nd June 2001 at 10.00 a.m. Principal was ordered to lodge an indexed bundle of documents at the court not more than seven, and not less than three, days before the start of the trial. The parties were directed to seek to agree the contents of the trial bundle. A notice of the trial date was automatically posted to Mr Tamina and to Principal's solicitors on 26th February. When the order was drawn on 27th February again copies were automatically sent to the parties on 28th February. None of these communications, which Mr Tamina now says were never received by him, was returned to the court undelivered.
7. Mr Tamina said in his skeleton argument accompanying the appellant's notice that on 18th June he had contacted the court to require a case management direction, and was advised to attend at the county court for a 30-minute directions hearing, his purpose being to agree to a trial timetable. He told me at the last hearing that the person to whom he spoke in the County Court was the listing officer in the Manchester County Court. He said that he spoke to a Ms Hughes. He says that when on 22nd June he attended the County Court, Principal's legal team shocked him with "a plea for trial" before the Recorder. He says that he asked the Recorder for an adjournment. He told me that no judgment was given by the Recorder refusing his adjournment application.
8. The trial then proceeded. Mr Tamina, as the claimant, gave evidence and was cross-examined until the midday adjournment. Mr Tamina then chose to leave, to use his description to me. He did not appear again in the case, so in the afternoon the case proceeded in his absence. Principal's witnesses were called. The Recorder then gave judgment. He pointed out that Mr Tamina's account of what occurred was not corroborated and that much depended on the reliance the Recorder could place on Mr Tamina as a credible, honest and accurate witness. The judge found a number of inconsistencies in Mr Tamina's evidence in relation to where was the cup or mug from which Mr Tamina drank, why the liquid was in the cup or mug and why he drank the contents. The judge decided that his evidence was implausible. The judge also said that it was difficult to accept that a man of Mr Tamina's intelligence and experience in the hotel trade and of his education would have drunk a three-quarters full tea-cup containing a yellow substance and that he would have not had noticed, from either the smell or the taste, that he was drinking something very different from orange juice. He considered therefore that Mr Tamina had failed to discharge the burden of proof on him.
9. The Recorder also referred to the oral evidence of Jason Wigglesworth, the sous chef, who on the day of the incident had been told by Mr Tamina "anyone could swallow chemicals and it would be the hotel's fault". The judge accepted that evidence. He therefore dismissed Mr Tamina's claim.
10. Mr Tamina in his Appellant's Notice said that he considered the order to be "in breach of fair justice". He said that the learned judge was wrong in law not to have adjourned or set a new hearing date, and he gave three grounds. The first ground was that the judge's refusal of Mr Tamina' application for an adjournment was wrong. The second was that officers of the court failed in their duty, either deliberately or mistakenly, to advise or notify him of the order of the court of 23rd February 2001 giving the hearing date. He says that he was not aware of that hearing and did not attend the court. He says that the blame for that was to be attributed to the officer of the court. The third reason was what he called the default or misconduct of the opposite party which had failed to comply with an order for disclosure until the date of the hearing. He said that all that amounted to a miscarriage of justice.
11. It is plain that Mr Tamina has not understood the meaning of the order made by the Deputy District Judge on 23rd February 2001. Discovery had been given the previous year, at the time when Mr Tamina had solicitors. All that the court was asking Principal to do was what it would have asked Mr Tamina to do, had he turned up at the directions hearing (which he should have done), that is to say that the claimant should have produced a bundle of documents for the court. It was not an order for disclosure. There was no obligation to serve those documents on Mr Tamina, though as a matter of courtesy Principal's solicitors did so. They say that they did so three days before the hearing. When the application for permission to appeal came before me on 14th January of this year, Mr Tamina told me that the Recorder had given no judgment, nor had he otherwise given reasons for refusing an adjournment. I directed that the hearing be adjourned. I made an order requiring Mr Tamina to put in proper evidence of his allegations against the court officials and against the solicitors on the other side, I directed that he put in an affidavit which could be seen by the court officers and the solicitors, and I directed that the affidavit should set out, in as much detail as possible, the facts on which he relied. I warned him that the affidavits would be provided to the court officers and the solicitors for their comments. In his affidavit Mr Tamina merely alleges that the court failed to notify him of the order of 27th February 2001. Nothing is said about the alleged conversation with Ms Hughes. Accordingly what is said in his skeleton argument on that matter is mere assertion and is not evidence. It is in any event refuted by the county court. Ms Hughes flatly denies ever advising Mr Tamina that the trial hearing was to be a directions hearing. It is singularly unlikely that she, a lady in the correspondence section of the Manchester County Court, would have given incorrect advice of that sort. A glance at the computer records would have told her that the trial was listed to be heard that day.
12. Mr Tamina in his affidavit also alleges serious misconduct by Principal's solicitors in failing to lodge and deposit the trial bundles until at or after the trial date. I have already commented on Mr Tamina's misunderstanding of the order of the District Judge. He also raises some new allegations in his affidavit that there was a breach of the order of the District Judge on 10th November 2000 for the exchange of witness statements.
13. Mr Tamina further alleges in his affidavit that the Recorder was wrong not to state his reasons for refusing the application for an adjournment.
14. Principal's solicitors, Perkins Mainman, have responded to these allegations. First, they point out that disclosure was given, witness statements were exchanged and allocation questionnaires completed, as required by the court. This was done for Mr Tamina by his solicitors. The allocation questionnaire, completed by Mr Tamina on 21st September 2000, gave, as the only factual witness to be called, Mr Tamina himself. He also intended to call one medical expert. But normally such expert would hardly have given evidence at a liability trial. Liability is primarily concerned with whether or not the acts alleged to have occurred, that is to say the circumstances of Mr Tamina drinking the orange liquid, did occur in the way Mr Tamina suggested. Only if that was established and it was shown that Principal was responsible would it be necessary to go to the medical evidence in order to see what damage was suffered. Further, the solicitors say that at the hearing on 23rd February 2001 the Deputy District Judge produced a letter sent by Mr Tamina to the court in which he said that he was abroad from February to May 2001. They further say that at the hearing, when Mr Tamina indicated he wanted an adjournment, he did so on the ground that he did not have the witnesses he required. The witnesses he required were the hospital doctor who treated him on the day of the incident, his GP and his wife. The solicitors say that the Recorder gave a reasoned judgment refusing the application and they have produced a detailed note of the judgment. The note records that the Recorder said that the application for an adjournment had been made by Mr Tamina on the basis that there were material witnesses who were unable to be present. The Recorder gave as his reasons for refusing the adjournment that none of the witnesses whom Mr Tamina had wished to call could deal with the mechanics of what happened in the hotel, and Mr Tamina's application for an adjournment had not been heralded by correspondence or prior communication, which of course it should have been, had he acted properly. Thus, the story given to me by Mr Tamina at the last hearing has been falsified in at least two ways. His application for an adjournment was not because he was taken by surprise to find the hearing was the trial. Further, the judge gave a reasoned judgment fully explaining why in the exercise of his discretion the application for an adjournment should be refused.
15. The solicitors say that the judge, after Mr Tamina chose to absent himself, took every precaution to ensure that any evidence from a witness of Principal was the subject of questioning by the judge.
16. In the light of the material now before me, I need only be brief in giving reasons on this application.
17. Mr Tamina was quite correct to say that the Recorder made one factual error in his judgment on the adjournment, in stating that the solicitors for Mr Tamina remained on the record until March 2000. But the Recorder's reasons for refusing the adjournment did not depend on that in any way. I have already given those reasons. In my opinion to suggest that the judge made some error in refusing an adjournment with which this court could interfere is fanciful. In my judgment the judge properly exercised his discretion and was plainly right to refuse an adjournment in the particular circumstances. There is no real prospect of succeeding in respect of that complaint.
18. Second, the ground that the court failed to notify Mr Tamina of the order of 23rd February 2001 is equally without substance. Mr Tamina places great reliance on the fact that he has received a letter dated 4th July 2001 from his former solicitors which, he says, shows that those solicitors were sent the order of the court of 23rd February 2001. What in fact the solicitors say is this:

"I enclose for your attention the following letters written to you on 2nd January 2001, 15th January 2001, 26th January 2001 together with order from the court, 23rd February 2001 together with bill of costs and 29th March 2001."

19. Mr Tamina construes the reference to the order from the court as being the order dated 23rd February 2001, when on a natural reading it goes together with the letter of 26th January 2001, the reference to 23rd February 2001 being a letter of that date going together with the bill of costs referred to. There is no evidence before me to show that the solicitors did receive the order from the court of 23rd February 2001. I have already explained that the production of letters from the court to parties in litigation is generated automatically by computer and that none of the letters which Mr Tamina claims not to have received has ever been returned to the court undelivered. In contrast, letters sent to Principal's solicitors at precisely the same time and produced by the computer in precisely the same way have reached them. I am far from satisfied that he did not receive any of the material notices. He was in contact with the court before 22nd June 2001. He knew of the hearing date, because he attended on that date. There is no evidence whatsoever to support his story that he thought it was to be a mere directions hearing. He did not apply for an adjournment on 22nd June from the Recorder on the ground he alleged of being previously told it was to be a directions hearing. The county court, in my judgment, in no way failed in its duty.
20. As for the allegation that Principal's solicitors were guilty of misconduct, in my judgment that is equally hopeless. Mr Tamina has not understood the order of 23rd February 2001, as I have indicated. He has misunderstood the nature of the obligation imposed on the solicitors to produce a trial bundle for the court. In any event, no injustice is shown to have been caused by Mr Tamina not having a trial bundle earlier, for whatever reason.
21. I conclude that this would be a quite hopeless appeal. It is bound to fail. This application has taken up far too much time of this court as a result of allegations, which are without foundation, made by Mr Tamina.
22. I have no hesitation in refusing this application.
Order: Application refused.