England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
(HIS HONOUR JUDGE VINCENT)

		Royal Courts of Justice Strand London, WC2
		19 May 2003

1. LORD JUSTICE JONATHAN PARKER: This is an application by Miss Corinne Abrahams, the first defendant in possession proceedings, for permission to appeal out of time against an order made on 3 February 2003 by His Honour Judge Vincent, sitting at Plymouth County Court, dismissing her appeal against an order dated 9 October 2002 made by Deputy District Judge Schofield, also sitting at Plymouth County Court. By the latter order the district judge dismissed Miss Abrahams' application to set aside a possession order dated 14 May 2002. The possession order was made at the suit of Sterling Credit Ltd, as mortgagee, in respect of freehold premises known as Wren Cottage, 3 The Terrace, Crafthole, Torpoint Cornwall, of which Miss Abrahams is the owner. The application for permission to appeal was refused by Lord Justice Buxton on the papers on 7 April 2003.
2. Miss Abrahams appears on this application by Mr Alex Troup, of counsel. The possession order was made in the absence of Miss Abrahams or her representative. On 7 August 2002 she applied to set aside the order under CPR 39.3 (3) which provides as follows:

"Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside."

Paragraph (5) is in the following terms as far as material:

"Where an application is made under paragraph ..... (3) by a party who failed to attend the trial, the court may grant the application only if the applicant -

(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial."

3. At the hearing before the deputy district judge Miss Abrahams gave evidence to the effect that the legal charge on which the possession proceedings are based was a forgery in that her signature on the charge had been forged by Mrs Nel Lister, who was living with her at the property. Miss Abrahams further stated that she became aware of the possession proceedings in the summer of 1998, but that she had been assured by Mrs Lister at that time that she - Mrs Lister - would thereafter take over all responsibility for repaying the loan and interest under the terms of the charge. Miss Abrahams went on to say that she had not become aware of the possession order made on 14 May 2002 until July 2002 and thereafter had acted promptly to set it aside. However the deputy district judge did not believe her evidence. At letter B on page 4 of the transcript of his judgment the deputy district judge said this:

" ..... she failed apparently to do anything other than trust this lady [that is a reference to Mrs Lister] whom she knew was a crook and she is now coming along and asking us to believe her in court today. I am afraid I do not believe her. I do not believe she has told the truth to this court."

Lower down on the same page just below letter D, he said:

"I do not believe she did not know about the order [that is a reference to the possession order]. I do not believe she did not know about the previous orders and I believe that she knew about them or purposely made a point of not knowing about them by taking whatever steps she did and, therefore, I believe she did know about it and she did not act promptly."

That part of the judgment dealt with the requirement under CPR 39.3 (5) (a).

4. The deputy district judge turned to the next requirement, that Miss Abrahams demonstrate she had "a good reason for not attending the trial". As to that, the deputy district judge said:

"She said that she was led to believe by ..... [and then there is a reference to Mrs Lister] that everything was okay."

The deputy district judge then referred to evidence which Miss Abrahams had given to the effect that Mrs Lister had been guilty of forging a charge on a previous property in Reading owned by Miss Abrahams. As to that evidence, the deputy district judge said at page 4 of the transcript just above letter G:

"I do not believe any of that. I believe she purposely hid behind this fraudster in the hope that she could get away with it on the back of somebody else's fraud which, in my view, almost implicates her in the fraud. So I think that she did not have a good reason for not attending the trial and it was her own fault that she did not do so."

The deputy district judge concluded his judgment by saying:

" ..... I have absolutely no doubt that she has not told the truth to this court today and I have no hesitation in dismissing her application."

5. Miss Abrahams' appeal against the deputy district judge's order came before His Honour Judge Vincent on 3 February 2003. In his judgment the judge made it clear that he was conducting a review rather than a re-hearing. As a concession to Miss Abrahams however, he heard further evidence adduced on her behalf pursuant to leave which had been given earlier by His Honour Judge Tyzack by his order dated 27 January 2003. At page 5 of the transcript of his judgment at letter B the judge said:

"Having reviewed the judgment of the learned district judge, and that I ought to emphasise, is the process on which I am embarked, a review rather than a re-hearing, I consider that he reached the clear view that Miss Abrahams' account was utterly implausible and not worthy of belief."

Later in his judgment the judge said, just above letter G on page 5 of the transcript of his judgment:

"Taking all of the factors together, the deputy district judge was entirely right, in my judgment, to form a conclusion that this appellant was not worthy of belief. He therefore had no difficulty in rejecting her application on the first two heads of CPR 39 (3) and in my judgment, in that respect, his decision was beyond criticism."

The judge accordingly dismissed Miss Abrahams' appeal.

6. The proposed appeal to this court is a second-tier appeal, to which CPR 52.13 (2) applies. That paragraph is in the following terms:

"The Court of Appeal will not give permission [that is to say permission to appeal in a second appeal] 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."

7. Mr Troup concedes rightly, in my judgment, that the proposed appeal raises no important point of principle or practice within sub-paragraph (a) of that rule. However, he submits that there is a compelling reason why the Court of Appeal should hear the proposed appeal in that the effect of the deputy district judge's judgment, as upheld by His Honour Judge Vincent, is that Miss Abrahams has in effect been branded a fraudster. He reminds me that a high burden of proof is required to establish fraud, and he submits that the hearing before the deputy district judge had a number of unusual features about it in the context of the ultimate finding of fraud. Thus he points out that the application was an interlocutory application at which the hearing of oral evidence is unusual. He tells me that the decision of the deputy district judge to take oral evidence at that hearing came as a surprise, both to Miss Abrahams who was present and gave evidence and also a neighbour, Mrs Brown, who also gave evidence.
8. Mr Troup further points out that the proposed defence by Miss Abrahams to the possession proceedings, namely that of forgery, was not investigated in any depth. He points out that there was no evidence tendered on behalf of the claimant in the proceedings, Sterling Credit Ltd; and that there was no reference in the judgment of the deputy district judge to Miss Abrahams' demeanour in giving her evidence. Accordingly, he submits, the deputy district judge's findings on that evidence must have been based, in effect, on what he regarded as internal consistencies in Miss Abrahams' account. He submits the task facing the deputy district judge was that of assessing the evidence at face value. He submits that the Court of Appeal would be in as good a position in that respect as the deputy district judge, or for that matter the judge, in undertaking that task.
9. As to the merits of the appeal, Mr Troup submits that Miss Abrahams has not merely a real prospect but a good prospect of success.
10. He has taken me, in some detail, through the judgment of the deputy district judge, pointing out what he submits are weaknesses in the judgment, which the Court of Appeal might well consider to be weaknesses, which, in effect, undermine the finding of fraud which the deputy district judge made. Mr Troup submits that there has to be compelling evidence to support the finding of fraud and that no such evidence was adduced before him.
11. In refusing the application on the papers, Lord Justice Buxton concluded that the criteria for a second tier appeal were not satisfied. I agree with that assessment. I cannot, for my part, see any compelling reason why the Court of Appeal should hear the proposed appeal.
12. The mere fact that there was a finding, in effect, of dishonesty against Miss Abrahams in relation to the evidence which she gave does not in itself begin to provide a compelling reason within the terms of the rule. On analysis, it seems to me that that is all Mr Troup's submissions amount to.
13. Lord Justice Buxton went on to say that in his view the proposed appeal had no realistic prospect of success. Once again, I entirely agree. The fact that the claimant did not give evidence is immaterial. The burden was on Miss Abrahams to bring herself within the terms of the relevant rule - CPR 39.3 - and she failed to do so.
14. The short answer to the application is that the deputy district judge, having heard Miss Abrahams give oral evidence, entirely disbelieved that evidence. That he was fully entitled to do. His Honour Judge Vincent, on appeal, could find no basis for going behind the findings of the deputy district judge in that respect, and, I have to say, neither can I.
15. Finally, I would also respectfully agree with Lord Justice Buxton's statement that -

"the contention that the appellate court is in as good a position as was the deputy district judge to assess Miss Abrahams' credibility is plainly wrong in view of the terms of the judgment of the deputy district judge."

16. In the course of the hearing Mr Troup handed in the further evidence which was placed before His Honour Judge Vincent, pursuant to the earlier order of His Honour Judge Tyzack, consisting of a letter from Willmett & Co dated 20 January 2003 relating to the sale of the Reading property and a witness statement by Mrs Susan Doorne also relating to that transaction. That additional evidence, in my judgment, goes nowhere towards providing a proper basis for granting permission in this case.
17. Accordingly, despite Mr Troup's helpful submissions, I have no hesitation in dismissing this application. It follows that questions of extension of time do not arise.
Order: Application dismissed