England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(His Honour Judge Weeks QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 28th May 2002

1. LORD JUSTICE WALLER: This is an application for permission to appeal a judgment given by His Honour Judge Weeks QC on 21st December 2001. The applicant is Mr. Toth. He was the claimant in the action brought against Mrs Augar.
2. On any view this was an unfortunate action brought between these two persons who had at one time been in close business contact and, it would seem, personal contact as well. There were in essence two claims. The first was a claim for remuneration based on an oral contract made in December 1993. The issue on this aspect was whether that contract was made with Mrs Augar personally or whether it was made with a company called Gosport Leisure Limited. The second issue in the case was a claim to have shares in a company which was the second defendant in the action, Ice Sport Limited. Again, that was based on an oral contract allegedly made in April 1994. Thus, one can see that the action ultimately coming to trial in December 2001 was concerned with events many years previously.
3. Mrs Augar apparently was originally assisted by solicitors but, funds having run out, she represented herself from December 1998. Mr. Toth was originally legally aided but legal aid was withdrawn in February 2001, and from thereon he, too, represented himself. The trial was the subject of what one might call various management directions. There was, for example, a direction given by Master Bowles on 12th June directing the exchange of witness statements and the usual matters, the subject of such directions, but including a time estimate of three days so far as the trial was concerned. Mr. Toth was represented by solicitors at that management conference. Master Bowles made further management directions in September 2001, and on this occasion the time estimate was given as five days.
4. The action was heard by Judge Weeks over five days. The applicant, Mr. Toth, called some 15 witnesses, and Mrs Augar called, I think, seven witnesses. Both Mr. Toth and Mrs Augar gave evidence themselves. In addition, a witness statement was read from Mr. McCallum, which had been signed shortly before his death in December 2000.
5. The judge in his judgment reviewed the evidence given at the trial, and he concluded in relation to the first issue as follows:

"I accept the evidence of Mrs Augar and Mr Taylor. The agreement was that Gosport should pay Mr Toth, which was what in fact happened. Mrs Augar appeared to me a much more credible witness than Mr Toth, and where their evidence differs I prefer that of Mrs Augar. It follows that I do not accept Mr Toth's evidence, that he was later told by Mrs Augar that the payments to him were being debited to her loan account from Gosport."

6. In relation to the second issue, he again reviewed the evidence, and he concluded as follows:

"Again, therefore, I prefer Mrs Augar's evidence that there was no second agreement. It is plain that Mrs Augar did intend Mr Toth should be a director, an employee of Ice Sport. Mr Toth was offered the chance to become a director and cannot now complain if he turned the offer down. Mrs Augar intended that Mr Toth should become an employee of Ice Sport on a monthly salary of £2,460. He was so employed. Mr Toth's claims against Mrs Augar under the second agreement, therefore, fail."

7. Finally, it should be said that he dealt with a claim for damages as against Ice Sport and he dismissed that. He refused permission to appeal. In essence, the grounds on which he refused were that the issues were ones of fact and depended on the credibility of the witnesses, and that there was no reasonable prospect of success and, as regards the third point, that the second defendant was insolvent.
8. In his grounds of appeal, what Mr. Toth first of all suggests is that the court allowed an unreasonably short time to hear a case which involved the testimonies of 24 witnesses. With respect to Mr. Toth, the original estimate of three days, and then ultimately an estimate of five days, should have been ample to deal with a case of this kind, and it is not surprising that the time estimate of five days was given. It is furthermore not surprising that the judge made some efforts to keep within that time limit. Mr. Toth then complains that he was not allowed to examine his witnesses. Again, he may have misunderstood the modern procedure. The procedure allows witness statements to be put in. They stand as the evidence-in-chief of the witnesses. It is not normally permissible for persons calling witnesses who put witness statements in to be allowed to examine them. He complains that in relation to cross-examination a guillotine was imposed, a very short guillotine. Once again, without a transcript of the proceedings, one cannot see precisely what happened. It is not surprising in a case of this sort that the judge should seek to impose time limits on the cross-examination of witnesses, and the very fact that he does that cannot be a matter for complaint.
9. Mr Toth then complains that the defendants only provided a bundle at the opening of the trial. It does seem as though the defendants did produce a bundle at the beginning of the trial. There is a letter from Mrs Augar which explains the circumstances in which that happened. But, so far as one can see, the case being down to last five days, no serious injustice would seem to have been done by the fact that a bundle was produced at that stage. There is a complaint about the fact that two witnesses of the claimant did not attend. The complaint is that the judge did not do more to compel those witnesses to attend. It seems ultimately that one did attend and thus no point arises on that one. The other was dealing with an area of the case in relation to which the judge had, in any event, heard considerable evidence. Mr. Toth complains about not being able to read a file while he was giving evidence. He complains that he had some evidence of fraud in relation to certain witnesses which he was not able to give. Again, one does not know the full details of that. It is not surprising, so far as credibility is concerned, that there may have been some limit on what the claimant was entitled to call as evidence in relation to a witness's credibility. He complains that the defences witnesses were allowed to make speeches instead of answering the questions. He complains that the defendants produced new witnesses outside the timetable for the exchange of the witness statements and he complains that the judge failed to appreciate the true nature of his numerous witnesses who provided first hand evidence, and misunderstood the relationship between his witnesses and him.
10. During his submissions to me, Mr Toth has criticised certain parts of the judgment. He suggests that certain of the facts in relation to payments do not accord with the documents. He referred to paragraphs 16 and 17, saying that they did not accord with what his bank statements showed. He criticizes the judge for getting a date wrong in relation to his wrongful dismissal. The judge said that that was withdrawn and dismissed on 26th January 1996. Mr. Toth says that it was much earlier, in July of the previous year. He says that the judge got the wrong place for the tribunal. He says that certain of the defendants' witnesses contradicted themselves. He says that the judge has failed to take that into account.
11. In a case of this sort one must stand back. Clearly, it would be impossible to analyze the detail of all of these complaints without there being a full transcript of the trial in the court below, and that would be an extremely expensive exercise for the parties. If one allowed the case to go to the Court of Appeal, there would be three or four days of argument in the Court of Appeal analysing those transcripts. The question at the end of the day is this: is there a reasonable prospect, at the end of that exercise and all that expense, that Mr. Toth would succeed? Certainly, if he did not succeed one is putting him to all that expense for no purpose. In my view, when one sees what this case is about, one sees that what the judge has done is to accept the evidence of Mrs Augar. He has found that she was a more credible witness. He preferred her evidence when it differed from that of Mr. Toth. When one appreciates that those issues depend entirely on the question of which of the witnesses should be believed, there is no reasonable prospect of Mr. Toth succeeding on an appeal. It would do him no favours at all to suggest that he should incur great expenditure in bringing the case before the Court of Appeal. In those circumstances, this application must be refused.
Order: Application refused.