Case No: B2/2010/2344 
Neutral Citation Number: [2011] EWCA Civ 1481
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STAINES COUNTY COURT
HIS HONOUR JUDGE REID QC
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 16th November 2011

Before:

LORD JUSTICE WARD
LORD JUSTICE TOMLINSON
and
LORD JUSTICE LEWISON
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Between:

	Howard	
Appellant	
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Stanton	

Respondent	
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(DAR Transcript of 
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Mr Dean Underwood (instructed by Batchelors Solicitors) appeared on behalf of the Appellant.

The Respondent appeared in person.

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Judgment

Lord Justice Lewison:

1.	Mrs Howard was the tenant of a house, 84 Green Lane, Sunbury-on-Thames. Her landlord was Mrs Stanton.  At the start of the tenancy Mrs Howard paid a deposit of £2,250.  The rent payable under the tenancy was £1,125 per month but was later increased to £1,250 per month.  As the tenancy was coming to an end, Mrs Howard did not pay the last month's rent for the month of March 2009. Instead she asked for it to be taken out of the deposit and for the balance of £1,000 to be returned to her.  Mrs Stanton did not return the balance of the deposit, so Mrs Howard brought a claim in the county court for its return.  Mrs Stanton served a defence and counterclaim.  In her defence she said that the property was empty in March and that she had arranged for a locksmith to gain entry, but that entry was refused by Mrs Howard's daughter. The keys were finally handed over to an agent acting for her on 23 March.  She said that at the end of the tenancy the house was in poor decorative order and that there were items of damage.  She said that she had received estimates to rectify the damage amounting to £3,300 odd, and was prepared to accept that half was attributable to wear and tear.  She said that she was unable to let the property until the 16 May due to its poor state, leaving a shortfall in rent of £1,875.  Her counterclaim was for £2,475.  Mrs Howard disputed these allegations.

2.	The claim and counterclaim were tried by District Judge Batcup in the Staines County Court on 14 January 2010.  He heard evidence from both parties and from Mrs Howard's daughter.  He gave judgment for Mrs Howard for the balance of the deposit, £1,000, and dismissed the counterclaim.  He also refused permission to appeal.  Unfortunately no note or transcript of his judgment has survived.  However, he was able to explain that he found that Mrs Stanton did not come up to proof in justifying the sum counterclaimed.  He said that, on the basis that she was able to re-let the property some six weeks after the end of the tenancy without carrying out any work or spending any money, there was no damage to the reversion.  Accordingly, because of the legal rules contained in Section 18 of the Landlord and Tenant Act 1927, no damages were recoverable.  

3.	Mrs Stanton wanted to appeal against that decision.  She filed an appellant's notice in which, amongst other things, she asked for permission to appeal.  On 22 March 2010 HHJ Reid QC directed her to obtain and lodge a transcript of District Judge Batcup's judgment by 12 April 2010.  Paragraph 3 of the order said that if the transcript were lodged the application for permission to appeal would be heard on the first open date after 12 April 2010.  Unfortunately, as I have said, it was not possible to obtain a transcript of the judge's judgment because of administrative errors in the Staines County Court.  Nevertheless, the application for permission to appeal proceeded and notice of the hearing was given on 14 June 2010.  That notice said: 

"The hearing of the defendant's application for permission to appeal (see copy attached) will take place at 10am on 20 July 2010 at the Staines County Court sitting at the Guildford County Court [and an address is given]."

4.	In accordance with that notification the hearing did take place on 20 July 2010.  It came before HHJ Reid QC.  Mrs Howard did not attend and was not represented.  At the hearing the judge not only granted Mrs Stanton permission to appeal but he went on, on the same occasion, to hear the appeal itself and to allow it in Mrs Howard's absence.  The order recited that notice had been given to Mrs Howard, but, apart from the notification of the hearing which I have just quoted, we have not seen anything which required Mrs Howard to attend the hearing.  Understandably Mrs Howard is dissatisfied with the judge's decision not having been present on the occasion on which he gave it. She has therefore lodged her own appellant's notice against that decision.  Mr Dean Underwood, appearing pro bono for Mrs Howard, to whose excellent skeleton argument I wish to pay tribute, has drawn our attention to the Civil Procedure Rules part 39.3(3), which provides that 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.

5.	This sub-rule appears in a rule headed "Failure to Attend the Trial" and CPR 39.1(1) begins with the statement that the court may proceed with a trial in the absence of a party.  CPR Part 39.1 says that the word “hearing” includes a trial, but it does not say that the word “trial” includes a hearing.  There is therefore a serious question mark whether that sub-rule applies to an appeal at all.  However, as Mr Underwood also pointed out, the court's general case management powers, and especially those under CPR Part 3.1(m), may well have entitled the county court itself to set aside HHJ Reid's order allowing the appeal.

6.	However that may be, I am satisfied that it was not an abuse of process for Mrs Howard to have appealed to this court against HHJ Reid's order.  Since Etherton LJ has given permission to appeal, in my judgment we should decide the appeal on its merits.  
7.	Where the question before the court is whether permission to appeal should be granted, the respondent is not usually required to attend on the hearing of the application for permission itself.  Paragraph 4.15 of the practice direction accompanying CPR Part 52 says that: 

"Notice of a permission hearing will be given to the respondent but he is not required to attend unless the court requests him to." 

8.	We have seen no such request.    Mrs Howard also says that she was told by staff at Staines County Court that there was no need for her to attend.  That would be entirely unsurprising given the statement in the practice direction.  The purpose of the separate stage of permission to appeal is to filter out hopeless cases.  If an appeal has no real prospect of success then permission to appeal will be refused.  If there is a real prospect of success then permission will be granted.  In that sort of case the usual practice is to hear the appeal itself on another day.  Sometimes an order is made for the hearing of an application for permission to appeal, with the appeal to follow immediately if permission is granted, but that did not happen in the present case.

9.	In my judgment, for the judge to have proceeded to hear the substantive appeal in the absence of such an order or request, and in the absence of Mrs Howard, was a serious procedural irregularity which caused injustice.  The injustice is shortly stated: Mrs Howard has had no opportunity to argue her case on the appeal from the district judge.  In fairness to Mrs Stanton, she fully recognised this and explained that it was not at her request that the judge determined the merits of the appeal; it seems to have been something which he did entirely off his own bat.

10.	The injustice in the present case is compounded by two features.  First, the judge did not in his judgment explain where he thought that District Judge Batcup had gone wrong in law.  Second, the judge appears to have made adverse findings against Mrs Howard on points that were not contained in Mrs Stanton's defence and counterclaim.  The judge did not explain why he had taken this course.  These are points which Mr Underwood powerfully made in urging us to deal with the merits of the appeal itself, and they are points which Mrs Stanton will have to consider very carefully indeed.

11.	Very regrettably in the present case, Mrs Howard has been denied justice.  I would therefore allow the appeal.  Mr Underwood has asked that if the appeal is allowed we should restore the order of District Judge Batcup; in other words, to decide the merits of the appeal itself.  But in my judgment that is a step too far.  The procedural irregularity consisted of deciding Mrs Stanton's appeal on the merits in Mrs Howard's absence, not in the grant of permission to appeal.  That irregularity and injustice can be corrected by setting aside HHJ Reid's order allowing the appeal and remitting the appeal for redetermination on the merits by a circuit judge.  I appreciate of course that there is a very small amount in dispute, but it would be unfair to Mrs Stanton to deny her the opportunity of arguing her appeal on the basis of the permission which HHJ Reid granted to her.  In addition, Mrs Stanton applied for an adjournment of the hearing before us on the ground that, unlike Mrs Howard, she was not legally represented.  That adjournment was refused, partly on the basis that the real point in the case was the procedural point rather than the merits of the underlying appeal itself.  If my Lords agree, I would therefore allow the appeal to the extent of setting aside paragraph 2 of HHJ Reid's order and remitting the appeal for determination by a circuit judge.

Lord Justice Tomlinson:

12.	I agree.  I would only add that, as appears from the order made subsequent to the hearing before HHJ Reid, he was evidently under the impression that Mrs Howard was in some way at fault in having failed to attend the hearing before him.  For the reasons explained by my Lord, that was a mistaken view.

Lord Justice Ward:

13.	I agree with both judgments.

Order:  Application refused