England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2010] EWCA Civ 1486

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		Neutral Citation Number: [2010] EWCA Civ 1486
		Case No: B4/2010/1594

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
HER HONOUR JUDGE BUSH

Royal Courts of Justice
Strand, London, WC2A 2LL

17th November 2010

B e f o r e :

LORD JUSTICE THORPE
and
MR JUSTICE COLERIDGE
____________________

Between:

	Johnson	Appellant
	- and -
	Johnson	Respondent

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(DAR Transcript of
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____________________

The Appellant appeared in person.
Mr A Wynne appeared on behalf of the Respondent.
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HTML VERSION OF JUDGMENT
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Lord Justice Thorpe:

This is Mr Johnson's appeal against an order made by HHJ Bush, sitting in Telford on 28 May 2010.

Behind this case is a relatively uncomplicated ancillary relief trial in the county court which commenced with the filing of the form A on 9 June 2008. The milestone order to which I then move is the directions order made by District Judge Nield on 12 June 2009. The wife's solicitors were before the court. The wife was before the court, but the husband, who acted in person, was not. There was a financial dispute resolution hearing on 28 September 2009. Again the wife's solicitors were before the court but the wife did not attend because she had received notice from Mr Johnson that he did not intend to be present, and indeed he was not present. So inevitably the case had to go for trial since the FDR hearing had been aborted.

There was a certain amount of correspondence between the husband and the court in which he suggested that he had not had essential documents, and particularly the wife's responses to his questionnaire. Accordingly, a review hearing was set in order to consider whether or not the case would be ready for the two-day fixture that had been granted on 25 and 26 January. Neither party was before the court on 14 January. The husband explains his absence at a hearing which was essentially convened to explore his submission that the case was not ready, by claiming that he had written to the court on 12 January and he had asked by his letter for an adjournment on 25th and he had assumed that the date of trial would not be effective unless the court notified him of the failure of his application. It is inevitable that I observe that that is a complete reversal of assumption. The husband had to assume that the 25th was effective unless he received notification from the court that the court was either granting an adjournment or, of its own motion, adjourning the trial. He must have known that a failure to attend on 25 January risked a trial without his participation. Furthermore, on 20 January he received a telephone call from the wife's solicitors asking him to confirm the address at which they would serve the trial bundle. That must surely have given rise to the inference that the trial was going ahead, otherwise what point in serving the bundle? Mr Johnson says that the bundle was served late since it was not served until 23 January. It seems that his service address was his office, which was not staffed on the 23^rd, and the bundle was effectively served on a neighbouring business.

So when the case came for trial on the 25th there was the wife represented by solicitors and counsel, she herself there ready to give evidence, and no appearance from Mr Johnson. The district judge proceeded in his absence and that is hardly surprising, because on a comprehensive review of the history of the litigation it emerges that the husband had not attended at court on any occasion but had developed the practice of writing letters to the court asking for things that he wished to see happen, or which he thought ought to happen, without ever issuing formal applications. It was no way to treat a court and it is hardly surprising that the district judge was not in a mood to grant any indulgence to a litigant who had demonstrated throughout the interlocutory proceedings that he was not participating on any terms but his own.

Nonetheless, the district judge carried out his resulting task with conspicuous care. He delivered a judgment which, over the course of some 31 paragraphs, explained precisely why he was making the clean break order that he did on the basis that from a Malta account the wife should receive a specific sum and the husband the greater balance. Mr Johnson was dissatisfied and he brought his appeal, as I have already said, to HHJ Bush. She considered the position first of all in the context of an application for extension. The rules provide an absolute right of appeal from the district judge to the circuit judge providing that the notice of appeal is filed within the fourteen days provided by the rules. If the notice is not so filed then effectively the appeal becomes a matter of discretionary review. Unless the circuit judge extends time, the notice is ineffective. HHJ Bush considered the whole history, considered the communications in January, had regard to the fact that the notice was some nineteen days out of time, as she calculated it, and that thereafter solicitors engaged by the husband had not been as effective as they should have been. That culminated in her discretionary decision to refuse the extension. She went on to deliver the supplementary opinion that the appeal would in any event have failed even had it been lodged in time.

The matter was then brought to this court and Black LJ heard Mr Johnson, who is an extremely eloquent advocate of his own cause, and in the end was persuaded to grant him an on notice hearing with appeal to follow if permission granted. She did that at a considerable handicap because she did not have before her the all important judgment of the district judge. Today we have that advantage.

Mr Johnson's most relevant submissions are that the district judge was misled by counsel for the wife when asked whether there was any material in the trial bundle that would have been new to Mr Johnson. He categorically said no, nothing new therein. We know that the trial bundle was entirely conventional since it contained no more than the main suit documents, the application for ancillary relief, the forms E, the questionnaires and the answers thereto. All that the bundle did was to put those core documents in order, paginate them and provide an index. So the complaint that Mr Johnson did not have the applicant's replies to his questionnaire is an empty complaint in the whole history of the case and it is perhaps understandable that counsel answered the district judge's question as he did.

Of the circuit judge it is said that she exaggerated the extent of the default since the notice was not 19 but 15 days out of time: that is an error which must be put into proper proportion. It is unthinkable that the circuit judge would have delivered a different conclusion had she calculated 15 rather than 19; the difference is of no materiality. With all due respect to Black LJ, this permission application should not, in my opinion, have been given the further life that it was given, although the judge's commendable caution is understandable since, absent the core judgment of the district judge, she was of course apprehensive that this court had not turned up every stone; but as an adjourned permission application it is completely plain to me that it nowhere clears the high hurdle constituted by Section 55 of the Access to Justice Act 1999. There is no important point of principle or practice; there is no other compelling reason. Mr Johnson feels himself the victim of injustice, but, as he has himself recognised during the course of his eloquent submissions, he is essentially the author of his own misfortune, or, as it might be said in this case, the author of any injustice that he subjectively feels has been visited on him. A litigant who ignores the interlocutory stages and who seeks to set his own terms for engagement, inevitably takes huge risks, and the judge simply did his best in the difficult circumstances into which he was plunged by Mr Johnson's failure to participate.

I would simply refuse this application for permission.

Mr Justice Coleridge:

I agree. The husband was given ample opportunity to argue his case before the district judge at first instance. He failed to attend any hearing or take that opportunity and failed, firstly, to attend the final hearing, because, by his own estimation, the hearing was not ready. Litigants who are given precious court dates would be wise always to attend unless they have absolute and clear notice from the court that the case is not going to proceed. However, on the merits of the appeal I cannot find anything to justify criticism of the district judge's careful and full judgment. Given particularly the wife's financial responsibility for the children over many years to come, the result seems to me to be well within the band of fair results which the district judge could determine. Accordingly, I too would not grant permission to appeal.

Order: Application refused