England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
HIS HONOUR JUDGE BEHRENS

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th November 2011

Lord Justice Lloyd:

1. This appeal is brought against an order of HHJ Behrens made on 15 July 2011 by which he refused an application by the sixth defendant in the proceedings, Mr Ranjit Singh, made under Rule 20.7(3)(b) of the Civil Procedure Rules, to be allowed to make additional claims -- formerly known as Part 20 claims -- against the first, second, third, fourth and fifth defendants to the proceedings, by which he also made orders for costs in favour of the claimant and the first three defendants against the sixth defendant.
2. By the claim in the action the claimant asserts her ownership of the whole, or in some cases part, of the beneficial interest in seven properties in Scunthorpe, Hull and Nottingham. According to the allegations in the claim form and the Particulars of Claim, the sixth defendant is relevant in respect of two of the properties, the claimant seeking a declaration that her interest is held by her free from any interest under any alleged trust on the part of any of the second to sixth defendants. The claim form was issued in December 2009. The two properties to which the allegation of a trust are said to be relevant in the claim form are numbers 87 and 11 Sheffield Street, Scunthorpe. According to the Particulars of Claim, 11 Sheffield Street was bought by the claimant in 1981 in the name of the late Mr Awtar Singh, who was the father of the claimant and the third, fourth, fifth and sixth defendants. The first defendant is the wife of the fourth defendant and the second defendant is the widow of Mr Awtar Singh, so the mother of the five siblings.
3. As regards 11 Sheffield Street the primary claims in the Particulars of Claim are against the fourth and the first defendants for reasons which it is not necessary to go into at this stage. 87 Sheffield Street was in the name of the second defendant and was transferred into the names of the second defendant and the claimant in 2007, and in relation to that it is said that the fourth and sixth defendants have asserted interests in various properties, including that property.
4. The assertion of those interests becomes clearer when one looks at the defence of the appellant, the sixth defendant. In his defence served on 16 April 2010 he alleged the existence of a Trust, called the Singh Family Trust, created in October 1990 by Mr Awtar Singh together with the second, third, fourth, fifth, sixth defendants and the claimant, under which their property was settled for the collective benefit of the parties and their direct descendants, extending to property both in the United Kingdom and in India. The defence annexes the documents relied on.
5. The sixth defendant's defence also has a counterclaim against the claimant for a declaration that the trust documents constituting the Singh Family Trust are valid and effective, and claiming consequential relief relating to the properties which are the subject of the claim form and also many others and the proceeds of sale of some properties already sold. From that it might seem obvious that relief of this kind should be sought not only against the claimant but also against other defendants concerned with the Singh Family Trust. I am told that similar allegations about the Trust featured in the defences of other defendants.
6. The possible relevance of additional claims clearly did occur to those who were considering the matter. The case came at a very early stage in its life before HHJ Langan QC on 16 December 2009. As I understand it, that was the return date of an application for an interim injunction by the claimant. The significance of that hearing is that HHJ Langan gave a number of case management directions including specifying 8 February 2010 as the date by which any party seeking to do so could file an additional claim. At that point, of course, the defendants had not served defences, and under CPR Rule 20.7 it would be open to a defendant who wished to make an additional claim against another defendant to do so without the court's permission so long as it is done no later than the stage of the service of the defence. Thereafter the permission of the court is required.
7. So in December 2009 HHJ Langan specified 8 February 2010 as the timetable. That was the first of eight orders by which a time was specified for the service of additional claims. The second is an order of HHJ Langan on 8 March 2010 extending the time to 26 March. The third is an order of District Judge Giles on 31 March extending the time to 9 April. The fourth is a consent order of District Judge Heath, which we are told was actually made on 26 April 2010 but must presumably have been agreed earlier than that because what is said is that it extended the time to 16 April. On 26 May 2010 at a hearing before HHJ Behrens the judge ordered that any Part 20 claims must be made by 21 July 2010. On 2 September 2010 HHJ Langan made a consent order under which any additional claim must be served by a date which is given differently in the papers but which I believe was 17 September 2010.
8. On that day the appellant did serve on the other parties a document headed "CPR Part 20 counterclaim of the sixth defendant". It was not accompanied by any claim form and therefore did not appear to comply with the rules. At a hearing before HHJ Kaye QC on 14 January 2010 the judge held that this was not a valid document; therefore as at that stage there was no additional claim. Nevertheless the sixth defendant was given until 28 January 2011, so another fortnight, as the period in which it was open to him to serve a properly formulated and properly presented additional claim.
9. Within the time that he was allowed by HHJ Kaye's order the sixth defendant amended his counterclaim against the claimant but he did not serve any additional claim documents on any of the other defendants. So that is the seventh of these eight orders and the eighth is said to be a consent order made by HHJ Kaye on 7 February. Again, according to what we are told, it extended the time to 4 February, so it had presumably been agreed in advance, but by that time the sixth defendant had still not taken advantage of even this eighth opportunity. In the meantime, in December 2010, a mediation had taken place as a result of which the claimant settled her differences with the first, second, third, fourth and fifth defendants. That was embodied in a consent order that was not filed until 12 September of this year, so no consent order disposing of the matter between those parties was before the court at the stage of the application which led to this appeal. However, a case management hearing took place before HHJ Langan on 17 March 2011 at which it was clear and common ground that the claimant and the first through to fifth defendants had settled their differences, so that the only issues that remain for trial lay between the claimant and the sixth defendant. Directions were given for that trial with an estimate of ten days and with no additional claim having been served as between the sixth defendant and the other defendants. The sixth defendant was represented by counsel at that hearing, not the same as appears for him today, but we can reasonably infer from the terms of HHJ Langan's order that there was no further application at that stage for time to serve an additional claim, nor any intimation of a wish to do so.
10. Soon after that the sixth defendant changed his legal representation. In June 2011, advised by his new advisers, he applied for a further opportunity to serve additional claims on the first through to fifth defendants. That is the application which HHJ Behrens dismissed in July and that is what is at issue on this appeal.
11. I should say that in the meantime, since then, although at that stage the trial was fixed for a date in, I believe, December, it is now fixed for June of next year with a time estimate of some three weeks plus some reading days. HHJ Behrens considered the application in the light of the extensive opportunities which had been given to the sixth defendant and, for that matter, to the other defendants for the service of additional claims, and he did so, at least to some extent, on the basis that it was an application for relief against sanctions under CPR Rule 3.9. He held that the sixth defendant had had more than enough opportunity to bring any additional claim that he wanted to in these proceedings and that he should not be allowed to do so now, the first through to fifth defendants having in the meantime settled with the claimant.
12. He rejected an argument that the sixth defendant should be allowed to raise the additional claims in these proceedings on the basis that even if he did not do so he could start separate proceedings the next day raising the same issues against the same parties. Whether it was right for the judge to treat the application as one for the relief, or involving the equivalent of the relief, of sanctions under CPR Rule 3.9 may be a moot point, but it is clear that it was a discretionary exercise under Rule 20.7(3)(b) and that the history of the case was highly relevant. The practice direction to CPR Rule Part 20 shows that the evidence which is required to be served in support of the application must describe, among other things, the history and the stage of the main proceedings.
13. On behalf of the appellant Ms Preston in her skeleton argument and in her succinct oral submissions this morning contends that the judge gave too much weight, in the balance necessary in the exercise of his discretion, to the delay on the part of the appellant before coming to the stage of applying for permission to serve an additional claim at last. She submitted that delay by itself is not a sufficient reason to deny relief. That may well be the case, but this is not a case of delay by itself; it is a case of failure to act despite eight orders in turn, some of them by consent, setting a time within which to take the step of serving an additional claim if he wished to do so; the last two of those being in the face of an abortive attempt to do the very thing which is now sought to be done, which was abortive because, and perhaps only because, one of the clearly prescribed necessary steps involved in serving an additional claim was not undertaken. It seems to me incomprehensible that, that defect having been pointed out by HHJ Kaye at the hearing in January and a further period of 14 days being allowed to put the situation right, the sixth defendant did not take the relatively simple step of serving the same document but with an additional claim form within the time allowed. However, that is the position, and after the finally allowed extension of time had expired, there was the order by way of trial preparation directions made by HHJ Langan in March of this year which addressed the preparation for trial specifically on the basis that there was no additional claim, there would be no additional claim, and the matter was to proceed only between the claimant and the sixth defendant on the issues raised by the claim form, Particulars of Claim and defence and counterclaim.
14. Ms Preston also contends that the judge misdirected himself by failing to take into account the fact that unless the application is allowed the Singh Family Trust cannot be enforced as between those individuals who are parties to it, who include the other defendants – apart, I assume, from the first -- that being a factor which in the skeleton argument it is said the judge did not mention. As it seems to me, far from not mentioning it, he referred to the argument which had been almost the opposite argument that had been put to him, namely that he should grant permission because it would avoid unnecessary duplication proceedings because, if denied permission, the sixth defendant could simply go along to the court office the next day and bring separate proceedings to enforce the Trust against the claimant and the relevant other defendants. The judge did also refer to the possibility that there might be an application to stay or strike out any such new proceedings, depending on what was said and how they were formulated, on the basis of an abuse of process by reference to the principles enunciated in Johnson v Gore Wood & Co [2002] 2 AC 1. As to that, who knows what the result of the application would be, but that was certainly a relevant factor for the judge to take into account. It does not seem to me that there is any scope for saying that the judge misdirected himself in that respect.
15. It is further argued that the sixth defendant should have been allowed to serve an additional claim at that late stage because none of the previous orders had been an unless order. It is that fact that raises in my mind the question whether this was really a case of relief against sanctions because no specific sanction had been imposed on the sixth defendant for not taking advantage of the time allowed. But given that the service of an additional claim was not something that he was required to do -- it was simply something that it might be thought he would wish to do, which was to be controlled in the exercise of the court's case management powers by the setting of a timetable in respect of the sixth defendant, and of course at the earlier stages also any other defendant who might seek to take the same step -- it seems to me that his failure to take that step in the face of the eight successive orders was plainly relevant to the exercise of the judge's discretion and something which he could legitimately take into account.
16. In her oral submissions this morning Ms Preston tells us of something that the judge would not have been aware of, namely that the consent order which was finally drawn up as between the claimant and the first five defendants has a feature which shows that it is in some way conditional on what is held to be the case as regards the validity of the Singh Family Trust. We have not been shown that consent order and, since it was not and indeed could not have been before the judge, it seems to me that it is strictly speaking irrelevant to the appeal. The appeal has to proceed on the basis that the judge erred in the exercise of his discretion and he cannot be said to have erred in the exercise of his discretion by failing to take into account some matter that was not and could not have been before him.
17. Lastly, Ms Preston puts the matter to us on the basis that there is a need, or at any rate an interest, for all parties concerned in having the validity or otherwise of the Singh Family Trust adjudicated on as between all of them, that the fact that the trial is now fixed for next June over six months ahead means that if an additional claim were allowed to be made for the first time now, albeit that the first to fifth defendants would be brought into the litigation as parties, it would be feasible for the issues to be determined at the trial starting in June, and that, even if the trial were to take somewhat longer than the three weeks presently allowed, the indication from the listing office in Leeds (where the matter is proceeding) is that additional time, if booked now, could be made available. Again, that is a matter which was not before the judge and is a matter which is not therefore relevant to the question of whether he erred in the exercise of his discretion.
18. As it seems to me, despite Ms Preston's clear written and oral arguments the judge's order was well within the scope of his discretion and was made after a proper self-direction as to the law and the relevant factors, so that the appeal must be dismissed. For myself I find it somewhat difficult to imagine how the judge could sensibly have come to any other conclusion on the history of the case. As it is, I would simply dismiss the appeal.

Lord Justice Sullivan:

19. I agree.

Lord Justice Carnwath:

20. I agree.

Order: Application refused