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 HIGH COURT OF JUSTICE
CHANCERY DIVISION
(SIR DONALD RATTEE)

		Royal Courts of Justice Strand London, WC2
		23 March 2006

1. LORD JUSTICE LLOYD: This is an application for permission to appeal by Mr Egbert Adolphus Gayle. It would be a second appeal because the appeal is ultimately against an order made in the Bromley County Court following a judgment by Mr Recorder Elvidge on 10 September 2004. The first appeal was to the High Court. Permission was granted for that appeal, and the appeal eventually came before Sir Donald Rattee, sitting as a judge in the Chancery Division, and was dismissed on 18 November 2005. The claimant is Mr Gayle. The defendants are Mrs Dasmie Rose Gayle, who is the claimant's ex-wife, and Mrs Maizie McKnight. The claimant is a son of Sylvia Agatha Gayle, now deceased, and one of her two executors.
2. The proceedings relate to the ground floor flat at 74 St. Asaph Road, Brockley, London SE4. Originally, the claimant put forward a case which I can summarise roughly in this way: the property was bought in May 1989 in the names of the defendants solely to provide a home for the deceased, Mrs Sylvia Gayle. The price was £74,000 and was provided as to £30,000 by a loan from the claimant himself and as to £44,000 by a loan on a mortgage by the Halifax Building Society. I should say that the claimant was in fact the lessor, the grantor of the lease, because he had bought 74 St Asaph Road with a view to it being divided into flats. It was so divided and leases were granted, at any rate a lease was granted to the ground floor flat, and maybe also of the upper floor flat. The upper flat is not of any relevance to the history of the case, but the ground floor flat was the subject of a lease by the claimant to the defendants on 19 May 1989 for £74,000, paid for in the way that I have mentioned. The intention was to provide a home for the deceased, Mrs Gayle, and for Mrs McKnight.
3. Mrs Sylvia Gayle died on 24 December 1991. She had left a will by which she appointed the claimant and his brother, Popsy Gayle, as her executors. The claimant took a grant of probate on 31 October 2002. The papers suggest that there had already been a previous grant to Popsy Gayle. The claimant's case was expressly brought as an executor of Mrs Sylvia Gayle. The first defendant resisted the claim and brought a Part 20 claim in response, asserting that she had a beneficial interest in the property.
4. A document which also featured in the history was a document called a power of attorney dated 25 November 1992, given by Mrs McKnight, then called Maizie Finley, to Mr Gayle. The document does not appear to be a power of attorney because its text, after the opening words, and leaving out words that are not relevant, is:

"I Maizie Finley hereby leave my half share of the flat situated at 74 St. Asaph Road and all insurances to do with the said property, I hereby give them all to Mr E A Gayle.

"I dissolve all claims from the said property during life and after death. No relative should put in any claim or claims against this property. I hereby give the property to E A Gayle to do as he pleases."

5. So what it said is that that is a gift of any beneficial interest that she had. The claim by Mr Gayle as executor was the subject of a defect of a procedural nature, in that, since there were two executors, both of them ought to have been parties. This point was taken in the county court and an order was made to the effect that Mr Gayle should join his brother and co-executor either as a claimant, or if he would not agree, then as a defendant. That did not happen and in consequence, the claim was struck out and the matter proceeded only on the counter-claim.
6. Mr Gayle appears in person today, as he has done on most occasions, but not quite all occasions, up to now. He has had a great deal of help from Mr Okunowo, appearing as a McKenzie friend, and Mr Okunowo tells me that Mr Gayle's problem was that he had had lawyers acting for him, but that they ceased to act for him shortly before the striking out application and left him in the lurch, unable – not least because he is illiterate – to explain the position and deal with the striking out application before the county court. As Mr Okunowo says, that was the beginning of Mr Gayle's problems.
7. That seems to have happened in 2004. I do not have a copy of the order in the bundle, but there is a reference to it in a later judgment to which I will refer in a moment.
8. So the case proceeded on the Part 20 claim brought by Mrs Dasmie Rose Gayle. Her claim was for a declaration as to the ownership of the flat, for an order for sale and appropriate directions as to accounting. That came to trial before Mr Recorder Elvidge, as I say, and according to the note of judgment that I have it came to trial on Monday 6 September and he gave judgment on Friday 10 September. The judgment discloses that Mr Gayle then had help from a Mr Emmanuel, who told the Recorder that an application had been filed on the Friday before the Monday, so 3 September, for an adjournment of the case to seek legal representation. The Recorder refused that application. He said that there had been ample time to seek representation, the case had been listed for a long time, and he refused an adjournment. So Mr Okunowo says that that simply added to Mr Gayle's problems.
9. The judgment of the Recorder sets out the history that I have mentioned as regards the lease of the lower flat, which remains in the names of Mrs Rose Gayle and Mrs McKnight. He refers to the matrimonial history of the claimant: married to Mrs Rose Gayle in 1968; separated in 1990; petition for divorce in 1991, which was the subject of a decree absolute.
10. He then says that it is common ground that the intention was to provide a home at St Asaph Road in the ground floor flat for Mrs Sylvia Gayle and for Maizie McKnight. It is said that the claimant paid his mother's share of the bills if there was a shortfall and Maizie contributed what she could. Mrs Sylvia Gayle died, as I have said, in December 1991 and in 1992, Mrs McKnight emigrated to America. It is agreed, he says, that there were then discussions about the position between the parties. The judgment, which I have in a copy signed by the Recorder, though not a transcript, because the tape had been lost, goes on some time later to say this, having referred to the so-called power of attorney, and to some other matters proceeding between Mr Gayle and his wife. At paragraph 18 in the copy I have, he says this:

"Therefore, the position in 1992 was that the first and second defendants were both prepared to transfer their interest in the property to the claimant. The claimant accepted in evidence that they were willing to do this. The reason they were prepared to do so was that the property then had no net equity, the market having fallen. For the same reason, the claimant did not proceed with the transfer, but instead decided to use it for himself and there was no legal or equitable transfer from either of the defendants. The second defendant was in America and the first defendant did not demur since she said that she was browbeaten by the claimant and he agreed to meet all the outgoings. He denies this.

"Having seen the way in which each of them gave their evidence I have no hesitation in preferring the evidence of the first defendant on these points. I find that the claimant did agree to meet all the outgoings. I accept the first defendant's evidence that, in order to pay the Halifax mortgage, the claimant took in tenants after 1992. The arrears on the mortgage to the Halifax in 2002 were £2,500."

I pause to say that at that point the Halifax took possession proceedings.

11. Then the Recorder says that Mr Gayle went into occupation and paid some of the sums due under the mortgage to the Halifax, who have taken no further proceedings. He says:

"Even if I were in doubt about the terms of the agreement under which he occupied, he had the use and occupation of the flat in the defendant's name since 1992 in any event and must account for this. It is accepted as part of his own claim as an executor that the first defendant had stated that he would meet all the outgoings on the property."

12. The Recorder had in the meantime said something about tenants being put into the property. He then comes to the conclusion that the property was clearly in the legal names of the first and second defendants and still belonged to them, and he was going to make declarations of ownership accordingly. He then came back to the question about what to do about the second charge which, it will be remembered, was a charge back to the claimant. He said:

"On any view I find that his mortgage which was repayable over 15 years … must be deemed to have been discharged by him."

13. He goes into the calculations, and deals with the question of the benefit of occupation. He then came eventually to the particular conclusion that he did. He ordered the claimant give up possession by a given date. He ordered that the legal charge in favour of the claimant be declared to be discharged. He declared that the whole beneficial interest was held in common by the first and second defendants in equal shares. He gave judgment against the claimant for a sum of £14,700 and costs, and dealt with the Halifax mortgage.
14. That was therefore a virtually complete victory for the defendants on the counterclaim, and Mr Gayle appealed. As I say, he got permission to appeal to the High Court. The grounds of appeal say that the Recorder made the decision without considering all material facts and evidence in relation to the case. It was an unreasonable decision and was the result of misdirection. They also say that Mr Gayle attended the court on the premise that he was presenting a case on his application for injunction. He was then made to argue a case that had been withdrawn. He did this without proper legal representation. He therefore did not have a fair hearing. It is also said that the judge made a decision with inconclusive evidence and thereby by way of a misdirection.
15. The case, as I say, came before Sir Donald Rattee and I have a note of his judgment. At that stage Mr Gayle had the benefit of counsel representing him, and the note of judgment that I have is prepared from that counsel's notes. The judge recites in summary the history. He refers to the 1992 power of attorney document, and the history of what happened at the property thereafter. The judgment helpfully fills in a gap by saying that an order was made in the Bromley County Court in March 2004 that unless the claimant joined his brother Popsy Gayle as a claimant or defendant, his claim should be stayed. He did not join his brother, so that action came to an end. So that confirms the detail on that.
16. The judge goes on to refer to the trial before Mr Recorder Elvidge, to the fact that during the course of the pleadings Mr Gayle had the benefit of solicitors, but only of a McKenzie friend at trial. He then refers to the basis of the Recorder's judgment, which he summarises at paragraphs 11 and 12 of the note. I think it is sensible that I quote that. He says:

"11. It is apparent from the note of the Recorder's judgment that his order which he made was based on the following conclusions:

"(a) The claimant's claim to be entitled to the beneficial interest had been stayed, so there was no claim to the beneficial ownership of the flat to compete with that of the first and second defendants as registered joint owners of a joint lease.

"(b) The claimant had been allowed to go into occupation on the basis of an arrangement between the claimant and the first defendant, whereby the claimant would meet all outgoings including the mortgage with the Halifax, the claimant's mortgage and any others which had to be made. It is accepted that the claimant had paid some of the amounts due but did not pay all the amounts which were due. The mortgage had grown to £52,000 from the original £44,000.

"(c) Since the Recorder was satisfied in the absence of a claim from the beneficial ownership, it follows that he accepted the fact that the claimant was in occupation pursuant to an informal arrangement."

"12. (a) The first defendant claimed not only possession but also a declaration that the claimant was liable for use and occupation. In the counterclaim, the first defendant had alleged from the time the claimant entered occupation, he was liable to pay a reasonable amount. The judge had to calculate how much. He treated the charge as having been discharged and ordered payment in addition. The amount owed to the Halifax was greater than it would have been, the endowment policy was for a lower value. It was the aggregate of these that produced the sum of £14,000.

"(b) The justification for discharging the charge, to be paid over 15 years, was that it was part of the outgoings on the flat and must be taken to have been made in accordance with the agreement."

17. Then the judge refers to the question of the adjournment, and to the grounds of appeal. The first was the refusal of the Recorder to adjourn, leaving Mr Gayle at a substantial disadvantage. Sir Donald said that that was a decision within the Recorder's discretion as a matter of case management and was not a decision that could be said to be plainly wrong. Then it is said that there were criticisms of the weight given by the Recorder to parts of the evidence and conclusions not supported by the evidence. In respect of that, the judge refers to allegations made in relation to a property at Chudleigh Road, which had been the matrimonial home, as I understand it, of the claimant and the first defendant. I think the judge rejected that as an unfounded point in terms of credibility, and then there was a challenge to the proposition that there were discussions about the terms of the occupation. The judge said that it was impossible to conclude that there was no basis for that finding of fact. Then it is said that the Recorder gave no effect to the 1992 document, but as the judge said, that was inconsistent with the claimant's original case. He refers to a number of other points. He therefore dismissed the appeal.
18. The appeal to this court would be a second appeal and is, accordingly, subject to the constraints on such appeals imposed under section 55 of the Access to Justice Act 1999. There must be either an important point of principle or practice or some other compelling reason for the Court of Appeal to hear the appeal. This is not a case that raises an important point of principle or practice, but by saying that I do not wish to be thought to underestimate its importance as a practical matter for Mr Gayle. The question is whether there is a compelling reason for the Court of Appeal to hear the appeal. On Mr Gayle's behalf, Mr Okunowo has said that the Recorder's judgment really fails to deal fairly or properly with the history of the transaction of the purchase and fails to grapple with the fact that the property was originally bought for Mrs Sylvia Gayle with funds, in effect, provided by the claimant by way of £30,000 loan and, in particular, by way of the fact that he took responsibility for the payment of the Halifax mortgage except insofar as Mrs McKnight was able to pay anything. He says that Mrs Rose Gayle paid nothing at all and was never really intended to have any share at all, and that her share was intended to be basically held on trust for Mrs Sylvia Gayle.
19. That was clearly Mr Gayle's case to an extent; it may not have been very clear at the trial because of the way that the matter had proceeded but that was clearly part of his case at any rate. The difficulty is that the Recorder heard the evidence and made findings as to credibility and made findings of fact accordingly. There really is no basis even on a first appeal, let alone a second appeal, for saying that the judge got the matter wrong in that way. It is interesting that permission was given for the first appeal, which to some extent proceeded on the same basis. But Sir Donald Rattee seems to me to have dealt with the matter in a way to which no exception could possibly be taken, rejecting the appeal on the basis that it was for the judge to make findings of credibility and findings of fact and to proceed on the basis of the case as it had been put to him. I can see no basis for disagreeing with that and no prospect of the Court of Appeal allowing an appeal even if this had been a first appeal. As it is, there is certainly no basis for saying that the requirement for a second appeal, any truly compelling reason why the Court of Appeal should hear the matter, is satisfied.
20. The matter came on paper before Jonathan Parker LJ, who dealt with it on 20 February. He refused permission to appeal of course. He also refused an extension of time. So far as that is concerned, the judge's order, as I say, was in November and the appellant's notice is dated 3 February, which is well out of time. The appellant's notice as I have it says in support of an extension of time, that Mr Gayle did not receive a copy of the order from the court and nor did his solicitor, and that it was only much later that he got a copy of the order. I do not know of course whether Mr Gayle was at court, but I find it difficult to suppose that even if he was not, that he was not made aware very shortly after 18 November 2005 that his appeal had been dismissed.
21. In those circumstances, he had 14 days in which to appeal and he had, of course, solicitors representing him at that time. Some short period of delay after that, in circumstances in which he had to act in person, would be understandable and excusable, but a delay to 3 February seems to me quite unexplained and I therefore agree with Parker LJ in refusing an extension of time. But even if I were to have granted an extension of time, I would refuse permission to appeal.

Order: Application refused. Extension of time refused. Stay of execution refused.