ON APPEAL FROM
HHJ Gareth Jones
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GROSS
| Williams & Anr
|- and -
|Hinton & Anr
Russell Moffat (instructed by JW Hughes & Co) for the Respondent
Hearing dates : 13/07/2011
Crown Copyright ©
LORD JUSTICE GROSS:
" 2. … The Claimants are unrepresented and they have not attended this hearing today, and I have proceeded in this case in their absence…. I have previously considered, on 29th April, a directions hearing in this case when I adjourned the matter on that occasion because both Mr. Williamses did not attend and a medical certificate had been sent. There has been subsequent correspondence with the court and I shall deal with the effect of that in due course, but I am satisfied that both Mr. Williamses are aware of today's hearing. I have no explanation for their non-attendance, they have chosen not to attend today and having been warned that this hearing was listed today, I have decided ….to proceed in their absence.
9. …..[The Appellants] have issued a number of applications, some of which have been before the courts, one of which, potentially, is still outstanding. The nature of the claims which they have made essentially is to seek a judicial review of the proceedings of this court, that application for judicial review most recently being considered on 11th September 2008. It is right to say that so far as that application is concerned, His Honour Judge Bidder QC, who sat on this case on that occasion on 11th September 2008, indicated and gave directions for the further conduct of this case….
10. The application for judicial review was before the court very shortly thereafter, on 22nd October 2008, when Judge Pelling QC, sitting as a Judge of the High Court, refused the application for judicial review. There was then a renewal, potentially, of that application, by way of an oral hearing applied for by the landlords. That application, I was reminded in correspondence from them dated 26th May 2009, is before the High Court at present, and I was reminded of that further on 15th June 2009, when the Williamses attached to correspondence , which they had sent to this court, a copy of an alleged stay of execution from the High Court, which they said that they had received on 29th May. I have looked through that document very carefully and, indeed the other correspondence which has been sent to me. What in fact the Williamses appear to have done is that they have certainly filed a Notice of Appeal and a further reconsideration of their application for permission to judicially review the original proceedings. So far as I am aware, there has been no stay of execution granted by any superior court. The last correspondence I have seen from the Civil Appeals Office of the Court of Appeal, which is dated 26th May, indicates that the Williamses made an application on 19th May seeking permission to appeal the decision to refuse permission to claim for judicial review and a stay of execution and an extension of time, and a reminder that they were to supply their documents to the Civil Appeals Office by 9th June. There is not, so far as I have seen…..a stay of execution which has been granted, and the last order which has been made in the judicial review proceedings, following on from the order of Judge Pelling QC, is an order by His Honour Judge Curran on 18th March, which also refused permission to appeal in this case and refused permission to appeal.
11. Therefore, the order that I made on the 29th April, which indicated on that occasion the trial would be adjourned until today, is still valid. ….in answer to this correspondence sent by the Williamses to the court, I caused a letter to be sent to them on 9th June indicating that the document which they were referring to was an Appeal Notice and not a court order for stay, and I warned them expressly that the provisions of the order made on 29th April remained in force. So the position we arrive at today is that there is no valid appeal against the orders of this court which has been granted, they do not have a valid permission to make a claim for judicial review, no stay of proceedings has been granted by a superior court, and this court is entitled, as I see it, to proceed to deal with the merits of this counterclaim today and the Williamses, without giving any explanation [to] this court, have simply chosen not to attend today and take part in these proceedings. "
THE RIVAL CASES ON THE APPEAL
i) The Judge erred in deciding to determine the Respondents' Counterclaim in the Appellants' absence. In doing so, the Judge acted in breach of natural justice and/or contrary to Art. 6.1 of the European Convention on Human Rights ("ECHR") and/or made findings no reasonable Judge could have reached on the facts. ("Ground I")
ii) Having decided to hear the case in the Appellants' absence, the Judge erred in failing to ensure that the Appellants' evidence and case was fully considered, contrary, inter alia, to Art. 6.1 ECHR and Van de Hurk v The Netherlands (1994) 18 EHRR 481, at . ("Ground II")
iii) The Judge erred in treating Mr. Evans as a single joint expert and/or in permitting Mr. Evans' report ("the report") to be admitted in evidence despite the fact that the report did not contain a declaration in the form prescribed by the CPR in 35PD.3 ("the PD"). ("Ground III")
The Appellants seek an order pursuant to CPR 52.10.2 (a) setting aside the order of the Judge, together with an order pursuant to CPR 52.10.2(c), directing a new hearing.
" The effect of Article 6(1) is, inter alia, to place the 'tribunal' under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision……"
i) As to Ground I, the Judge had properly satisfied himself at the outset of the hearing that the Appellants were aware of the hearing; that there was no explanation for their non-attendance and that they had chosen not to attend. The Judge had carefully analysed the correspondence in question and had done everything he could have been expected to do; he was right or entitled to proceed in the absence of the Appellants.
ii) As to Ground II, the Judge had done more than he was obliged to do.
We did not, in the event, call upon Mr. Moffat to address us on Ground III.
A PRELIMINARY QUESTION – APPEAL OR CPR 39.3?
" (1) The court may proceed with a trial in the absence of a party….
(3) 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.
(4) An application under ….paragraph (3) must be supported by evidence.
(5) 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 enter judgment or make an order against him;
(b) had a good reason for not attending the trial;
(c) has a reasonable prospect of success at the trial. "
" If a defendant seeks to appeal without first making a CPR 39.3 application, when she could have made such an application, the appellate court could still entertain her appeal, although particularly following our judgments in this case, it will normally require unusual facts before it should do so."
Later, however (at ), Lord Neuberger MR added the following observation:
" As pointed out above, my first point does not mean that there is an absolute bar in every case to a defendant seeking to appeal against a decision, when she could first have made a CPR 39.3 application."
In his judgment (at ), Lloyd LJ agreed with Lord Neuberger MR that "the normal course" should be to apply under CPR 39.3 even if there were independent grounds of appeal.
" Although evidence on the merits will have been put in under CPR 39.3(4), such evidence can only be relied on in support of the appeal against the original order if CPR 52.11(2) and Ladd v Marshall are satisfied. It seems to me inherently unlikely that they would be satisfied in those circumstances because, almost certainly, the evidence could have been adduced at trial if the party in question had attended the trial…."
Building on those dicta, Mr. Mason submitted that it might well be easier to adduce fresh evidence under CPR 39.3 than it would be on appeal, so emphasising that the course followed by the present Appellants conferred no "backdoor" advantages. Suffice to say that it is unnecessary on this appeal to express any view one way or the other on this submission and whether Lloyd LJ's observations are to be construed as Mr. Mason sought to do.
i) It does not at all follow that in subsequent cases the decision (to entertain an appeal when the correct course was to apply by way of CPR 39.3) would be the same (as Lord Neuberger MR observed in Pereira, at , in the passage already cited). I take this opportunity of underlining the importance of Pereira in providing guidance for a litigant unhappy with a decision reached in his/her absence.
ii) I am firmly of the view that the mere fact that a litigant is a litigant in person ("LIP") would not, at least ordinarily, constitute an "unusual fact" (within Lord Neuberger MR's observations in Pereira at ), warranting this Court entertaining an appeal when the correct course was to proceed by way of CPR 39.3. It is one thing to make even generous allowances, as the Court invariably does, for LIPs; but there should not be one rule for LIPs and a different rule for those legally represented.
iii) There is nothing in the materials before this Court to support the submission that greater familiarity with the Welsh language, rather than English, gave rise to any difficulty in the present case; as Mr. Moffat in effect submitted, the Appellants betrayed ample familiarity with English in their various dealings with the court system. I should add that I am far from saying that a want of familiarity with English would or should, at least ordinarily, constitute an "unusual fact" for present purposes; the scope for abuse would be manifest not to mention the extra costs that would be entailed.
" Your letter dated 26 May 2009 has been referred to HHJ Gareth Jones QC who states:
'The document identified is an appeal notice and not a court order for stay. The provisions of the order made on 29 April 2009 remain in force'. "
It appears (see below) that the Appellants' letter of the 26th May enclosed the notice seeking (inter alia) permission to appeal to the Court of Appeal – i.e., the same notice to which reference was made in the Civil Appeals Office letter of the 26th May, 2009.
i) The 9th June letter is most unusual. To my mind, it was prompted by the Judge's determination to dispel any suggestion that there had been a stay of execution and to reiterate that the provisions of the 29th April order remained in force – so that the trial of the counterclaim would proceed on the 29th June. By this stage, the Judge was well apprised of these proceedings. He had already made the order of the 3rd April and the 29th April order (see above). It may well have appeared to the Judge that the Appellants were searching for an excuse to put off the evil day. I regard it as most improbable that court officials would have failed to post an unusual letter of this nature, specifically commissioned by the Judge.
ii) Given that the letter was dated 9th June, I would be minded to resolve the doubt as to the manuscript annotation by reading it as "9th June" – an inherently more likely conclusion, justified by a permissible reading of the unclear writing on the document. If right, it disposes at once of these submissions advanced by Mr. Mason.
iii) But even if my reading of the manuscript note is wrong, so that it did read "7th June", it does not seem to me that the point advances the Appellants' case. All that it then reveals is that whoever made the note erred as to the date of the posting. It does not go further and cast doubt on the fact of posting. It does not do that in terms and there is no basis for inferring that the fact of posting should be called into question – for the reason I have already sought to give. Additionally, we were told by Mr. Moffat (who appeared before the Judge on the 29th June, 2009) that the question of "9th" or "7th" June was considered by the Judge on that occasion; plainly it gave rise to no doubts on the part of the Judge that the letter had been posted.
iv) For my part, I conclude without hesitation that the 9th June letter was posted to the Appellants, most probably on that day.
" Use at trial of witness statements which have been served
32.5 – (1) If –
(a) a party has served a witness statement; and
(b) he wishes to rely at trial on the evidence of the witness who made the statement,
he must call the witness to give oral evidence unless the court orders otherwise or he puts in the statement as hearsay evidence.
(5) If a party who has served a witness statement does not –
(a) call the witness to give evidence at trial; or
(b) put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence. "
As it seems to me, this provision is clear. The Appellants did not attend the trial. They neither called the witnesses who had given statements nor did they put in those statements as hearsay evidence. The Respondents could have adduced the Appellants' witness statements as evidence but wholly understandably did not do so. Those witness statements thus never became evidence at the trial.
" I understand that my duty in providing written reports and giving evidence is to help the Court and that this duty over-rides any obligation to the party who has engaged me. I confirm that I have complied with my duty.
I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct.
I have endeavoured to include in my Report those matters which I have knowledge of or which I have been made aware of that might adversely affect the validity of my opinions.
I have indicated the sources of all information I have used.
I have not, without forming an independent view, included or excluded anything which has been suggested to me by others.
I will notify those instructing me immediately and confirm in writing if, for any reason, my existing report requires any correction or qualification.
I confirm that I have not entered into any arrangement where the amount of payment of my fees is in any way dependent upon the outcome of the case.
I confirm that this report complies with the requirements of the Royal Institution of chartered Surveyors as set out in Surveyors Acting as Expert Witness: Practice Statement. "
POSTSCRIPT – THE CLAIM FOR AN INJUNCTION
LORD JUSTICE MOORE-BICK: