England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE BIRD)

		Royal Courts of Justice Strand London, WC2A 2LL
		22 July 2014

1. SIR TIMOTHY LLOYD:

2. This is an appeal from an order of HHJ Bird made on 18 October 2012, which records that it was made upon the trial of the action. The substantive order was that the claim was allocated to the multi-track, it was then dismissed and permission to appeal was refused. That is rather succinct order which conceals a substantial previous procedural history. It has led to a substantial appeal which has been brought by Mr Kelly, the Claimant.

3. The history of the litigation began when Mr William Kelly, the Claimant, brought proceedings against the present Defendants, Mrs Sheila Miller, Mrs Joan Brewer and a charity called Animal Aid, by a claim form in September 2009, by which at that stage he sought to recover a sum just under £10,000. That, he said, he had paid out as a trustee of the charity, which he had been between April 2008 and earlier in September 2009, and he had not been reimbursed for this expenditure.

4. I should mention at this stage that Animal Aid, the third Defendant, is an unincorporated body and Mrs Miller and Mrs Brewer were sued on the footing that they were among its trustees. I record that the unincorporated charity which is sued is registered at the Charity Commission under the number 702713 and is not to be confused with Animal Aid 264, a company limited by guarantee, which is registered at the Charity Commission under number 1143133. Nothing turns upon that for the purposes of the present appeal, but it is as well to know which charity one is talking about.

5. In September 2009 Mr Kelly brought the proceedings which were given the number 9LV54854. Later, in February 2011 he brought a second claim which was given the number 1LV80738 against the same Defendants, by which he claimed further sums amounting at that stage to £5,274.84, which he said he had discovered since the issue of the first claim form to have been due and owing to him. He might possibly have amended the earlier proceedings but he issued the second proceedings and the two were later consolidated.

6. Before the issue of the second claim form there was a hearing on the first claim. Both of the claims were in the Liverpool County Court from which this appeal is brought. DJ O'Neill sat in the court on the first claim n 18 December 2009, hearing counsel for the Claimant, so the order records, and the Defendant in person. By that order DJ O'Neill entered judgment for the Claimant for an amount to be determined by the court. He dismissed an application by the Defendant and gave various directions, including case management directions, and reminded the parties of the availability of ADR via the National Mediation Helpline. So that was the position as regards the first claim: judgment for the Claimant on liability, quantum to be determined.

7. In December 2010, again before the issue of the second claim form, there was a hearing before DJ Sykes, reflected in an order drawn up on 11 January 2011, in the course of which the District Judge recorded that the Defendants seek only to put the Claimant to proof in relation to all sums which he seeks and that they did not rely on an amended defence, which they had by then put in.

8. Then, as a matter of history, the Claimant issued his new claim form. At a hearing on 24 February 2011 before DJ Wright, the order was made that the two claims be consolidated and that the Defendants file and serve an amended defence by 28 March. The Defendants did file an amended defence on 18 March 2011, which we have in our bundles.

9. This case seems to have come before pretty well all the district judges sitting in Liverpool at some stage, as well as several deputy district judges, and I do not intend to refer to every single hearing.

10. The next significant one was before DJ Coffey on 22 August 2011, by which the Defendant's application to set aside the judgment was dismissed and the judgment dated 18 December 2009, that is to say the judgment as to liability, was ordered to stand. The Defendant's counterclaim was struck out and three separate defences were struck out. The amended defence that I have already mentioned of 18 March 2011 was ordered to stand as the Defendants' defence as to quantum in the consolidated action. So the position reached by then was that the Claimant had judgment for liability on both claims but quantum remained to be proved and determined. Various district judges made various further directions about that.

11. The next hearing I need to mention was a direction that the matter stand for trial as to quantum with a time estimate of two days, so this was clearly not just the ordinary disposal hearing, which is not expected to take more than half an hour or an hour at the most.

12. The next significant hearing was before DDJ James on 19 December 2011 at a stage when all parties were in person. We have the benefit of a transcript of the hearing before DDJ James as well as of the judgment, and it is clear that one of the things he was trying to do, as other district judges also tried to do, was to define, limit and confine the issues as to quantum so that the court would be able to focus to the best advantage on what matters really were in dispute.

13. DDJ James' order records that in relation to Adams Vets invoices, those:

14. " . . . invoices raised are regarded as legitimate expenses of Animal Aid".

15. It also records that:

16. "The principles underpinning the Defence are that certain expenditure was either not disbursed by Claimant on the Defendant's behalf or, alternatively, was either unauthorised [or] not legitimately in the furtherance of the Defendant's charitable aims."

17. In reading that paragraph I have corrected one obvious error of the wording.

18. The Deputy District Judge made various case management directions, including that the Defendant and Claimant jointly prepare a Scott schedule showing the items claimed by the Claimant as to whether they were disputed and, if so, on what basis. The order, again, recommended to the parties that they should consider alternative methods of determining the amount to be paid by the Defendants to the Claimant, if possible to include mediation. As I say, we have the transcript of DDJ James' hearing and reference has been made to a number of passages in that transcript which led the judge to record what he did. One of Mr Kelly's claims is on a cheque for £2,020 which was stopped because it had not been signed according to the mandate and there was some reference to that, but in the light of what was said about that before HHJ Bird, I do not need to go further into the detail of that.

19. DDJ James did refer to the fact that one of the lines taken by the defence was that Mr Kelly had mismanaged the trust or had run down the assets of the trust and DDJ James recorded that that is not a point which had commended itself at an earlier stage of the proceedings and he clearly regarded it as not open to the Defendants at that point.

20. He also obtained some clarification from Mr Dickenson, who was acting for the Defendants as a McKenzie friend and, if I may say so, judging from the transcript, was a helpful and informed McKenzie friend. The Deputy District Judge was able to obtain from him clarification that led him to record that there was no issue but that Adams Vets invoices were legitimate expenses of the charity.

21. There is one further point that I should record at this stage, which is that a point taken in the amended defence was that Mr Kelly, as a trustee of Animal Aid, had signed accounts in May 2009 recording as being a true and fair account the position of the charity as at the end of the financial year ending 31 March 2009. That did not show any sum as being due to him, it showed one single debtor, which was Her Majesty's Revenue and Customs.

22. Mr Kelly mentioned to the District Judge that this was a point which was taken in the defence and the judge said, "Well, it comes back to the issue about what does the defence actually encompass and this is not a point which is a defence." What the judge then said is:

23. " . . . I have recorded the two principles of the defence and if it doesn't fall into one of those principles it is not a defence . . . "

24. So that is a fairly clear indication, although not spelled out in terms in the judge's order, that it was not going to be an admissible line of defence that the particular item for which Mr Kelly claimed reimbursement had been incurred before 31 March 2009, so that he was precluded from claiming it by having signed the accounts.

25. So that was the hearing before DDJ James and a number of further hearings took place. A Scott schedule was put in by the Defendants. I am not sure whether it was an agreed one, because one of the points taken by the Defendants at that stage was that the Claimant had made the payments in issue as a donation to the charity. That was a new point and that was dealt with before DJ Heyworth at a hearing on 13 June 2012. On that occasion the Defendants were again assisted by Mr Dickenson, and the order records that the Defendants withdrew their contention that the Claimant had made the payments in issue as a donation. They contended that the main thrust of their case was that the Claimant was not authorised to spend the money in question and the District Judge also recorded his view that the issues had been identified as set out in the order and the transcript of DDJ James. He made no further order on the application.

26. Eventually the matter came to HHJ Bird for trial. It had been listed for two days. It took, as I understand it, four days in October 2012 and, as I say, came to judgment on the 18th.

27. Despite the admirable and, as it seems to me, constructive efforts of the succession of district judges to limit and define the issues, most unfortunately it became clear after HHJ Bird had given his judgment that he was quite unaware that judgment had been entered for liability and was also unaware that any of the issues that were in dispute on quantum had been limited or defined by the succession of orders at hearings before the district judges. It is clear that the judge assumed he was hearing the trial of the action with all issues open for him to determine on the evidence and the submissions that were put before him. It is highly regrettable that that situation arose. The position before him was, as previously, that Mr Kelly represented himself and Mr Dickenson assisted, as it were, in representing the Defendants.

28. A case summary had been prepared for the learned judge which recorded that there had been a judgment on liability and recorded a certain amount about the history as to the procedural hearings before the succession of district judges. It is a matter of extreme regret that the judge was not made aware of the true basis on which it came before him. Most regrettably, the conclusion that I have come to, for reasons that I will explain, is that this, together with the way in which the judge approached the matter, renders it necessary to allow the appeal, to set aside the judge's order and to remit the matter for hearing before a different judge in the County Court at Liverpool on the correct basis.

29. It would have been a good idea for all of the case management of the case at the earlier stage to be dealt with by the same district judge, but in fact the district judges, as it seems to me, if I may say so, made an admirable effort in terms of attempting to refine and define the issues of quantum. What went wrong is that HHJ Bird was unaware of the basis on which the matter came before him. The judge gave his judgment on 18 October which runs to some 45 paragraphs. We have the transcript of that and we have the transcript of the proceedings after judgment. From that it is apparent that the judge had been unaware until that moment that there were judgments as to liability and that all that he had had before him was a determination of quantum. He said, "I cannot overturn the judgment of the district judge, but having made findings on the issue that was before me ..." in effect he was determining that the sum due to the Claimant was nil.

30. The basis on which he determined that is set out in his substantive judgment and I do not propose to go into every item that he covered because they proceeded from a claim amounting to some £5,397, for reimbursement of staff wages and expenses, to more or less the opposite extreme, a claim for the reimbursement of £54.99 for the cost of what was described as a cat cage but what, according to the documents referred to by the judge, was an indoor guinea pig or rabbit cage. The judge rejected that for reasons he explained in paragraph 39 of his judgment.

31. So the issues before the judge on quantum varied widely in their amount and their nature and their significance. Thus to start with the first that he had to consider, there was a sum of £530 in respect of fees relating to a planning application which the judge dealt with at paragraph 17. The judge rejected that, at least in part, because the application related to land owned by Mr Kelly and he said this was an example of a trustee doing something which he must not do, namely putting himself into a position of conflict with the trust. That, if it were a valid point, would, as it seems to me, be a defence on liability and that was not a point taken in the amended defence and not open to be taken on the trial of quantum. Whether there are other reasons for rejecting that claim is another matter, but that is one respect in which the judge's reasoning was based on something that was not and should not have been treated as open before him.

32. A number of points the judge rejected either wholly or in part because they had been incurred, if they were incurred at all, before 31 March 2009 and therefore, accordingly, the judge regarded them as excluded by Mr Kelly's signature to the 2009 accounts, which he treated as an acknowledgement that there was nothing owing to Mr Kelly from the charity at that point and, in effect, if he had paid out anything on behalf of the charity before that date it had been either waived or reimbursed to him. That, for reasons that I have briefly mentioned, seems to me a point that was not open to the judge or to the Defendants at that stage and, as it seems to me, all points in respect of which the judge's judgment was based on that, are points where his judgment has been shown to be wrong because of a procedural and jurisdictional error, the judge taking into account matters that he ought not to have taken into account.

33. The 2009 accounts point applies to a number of different claims, including some court fees in respect of unsuccessful litigation against a company called Wastetech. It applies to some of the claims in respect of staff wages and expenses, vehicle expenses, vets' fees and medication and some of the other smaller items.

34. There is an item which I have mentioned in respect of a stopped cheque. This cheque was signed by Mr Kelly and Mrs Rhodes in favour of Mr Kelly for the sum of £2,020. They were not authorised signatories and the bank therefore declined to honour the cheque. At some point at an earlier stage, Mr Dickenson had accepted that that sum had been approved by the trustees but at the trial before HHJ Bird, that concession, if it was made, was withdrawn and it was therefore up to Mr Kelly to prove his underlying entitlement, which was a claim in respect of sums that he had paid out for wages and for cat food.

35. So there is a variety of claims made and there is a variety of defences asserted. It was, of course, open to the Defendants, as they had said they would, to put in issue the fact that Mr Kelly had paid these sums at all to the entity to whom he claims to have paid the sums, whether it was the vet or the supplier of cat food or the supplier of medication or to the relevant employee of the charity.

36. The judge looked at some of the evidence in that respect and it is fair to say that he took a rather poor view of the evidence that Mr Kelly had given, as compared with that which he had heard from Mr Alan Watts, who was, in effect, the treasurer or had been the treasurer of the charity, who gave evidence for the charity before the judge and who has represented the charity at the hearing before us. The judge records at paragraph 13 that he found Mr Alan Watts as "a careful man and an impressive and patient witness", doing his best to assist the judge to reach the right decision in the matter, whereas he had regarded Mr Kelly as a less reliable source of assistance. He recorded at paragraph 43 that Mr Kelly, he did not doubt, had begun the exercise in good faith, but that he had asserted the claim without much in the way of solid basis to demonstrate that it was properly made out. I should record that the judge refused permission to appeal.

37. Mr Kelly applied for permission to appeal to this court. His application was at first rejected on the papers by Sir Richard Buxton in May 2013, but it was then renewed orally, Mr Kelly by then having the benefit of representation by Mr John Pugh of counsel on a direct access basis, who put forward an advocate's statement under the practice direction to CPR part 52 and who was able to persuade Tomlinson LJ on 25 July 2013 that permission to appeal ought to be given. Tomlinson LJ ended his judgment by adding himself to the number of judges who had urged the parties to consider the benefit of the Court of Appeal mediation scheme and he recommended that this should be taken advantage of. Sadly, as with previous urgings, this did not bear fruit.

38. So the matter has come before us today, Mr Pugh representing Mr Kelly, Mrs Miller and Mrs Brewer here in person and Mr Alan Watts representing the charity. I say "here in person", not physically here in the Royal Courts of Justice but present in Liverpool and able to hear and take part in the proceedings by a videolink which has been, I am sure, a commendable method of achieving economy consistently with a proper hearing of the appeal.

39. Mr Watts spoke on behalf of the charity and, in effect, on behalf of all the Defendants since the position of Mrs Brewer and Mrs Miller does not in substance differ from those of the charity with which they are concerned. Mr Watts' principal point was that he considered that Mr Kelly had not yet fully accounted to the charity for the large volumes of cash that used to come in to the charity. The charity runs a shop, it runs an activity of rescuing and finding homes for cats and dogs and it has a number of sources from which it receives cash. It receives cash from the shop takings, it receives cash from monies paid for the homing of animals and there are no doubt other sources of receipts of cash. Likewise, it tends to pay sums out in cash and that was, we are told, the practice both while Mr Kelly was active as a trustee, as well as before.

40. However, Mr Watts' point is that he does not feel and the charity does not feel that it has had a proper account from Mr Kelly of his dealings with all the cash. A point made from the start in the amended defence was that surely Mr Kelly had enough money available to him, in particular from the cash takings, to have defrayed all these various sums, which he claims to have spent out of his own money on behalf of the charity. Mr Watts in that sense sought an account from Mr Kelly of his dealings with cash on behalf of the charity and sought to raise that as a defence to the claim on the footing that there might have been found to be more cash of the charity available than is admitted by Mr Kelly. It was therefore a matter of proof as to whether Mr Kelly had really spent these sums of money, if he had spent them at all for the benefit of the charity, had he spent them out of the charity's money or had he spent them out of his own money?

41. It is fair to say that at the hearing before DJ Coffey an application was made to the court by the Defendants for an order that Mr Kelly should disclose all relevant documents but the District Judge was only willing to order the disclosure of those documents that were relevant to the issues in the case. That would be a perfectly understandable and, indeed, correct line for a district judge to take as a matter of case management as regards the issues in litigation where there was not a claim for an account against Mr Kelly. I have already said that although there was once a counterclaim by the Defendants against Mr Kelly, that counterclaim was struck out by one of the orders that I have already mentioned.

42. So, as it seems to me, it is not a valid point that would have been open to the Defendants before HHJ Bird to say that Mr Kelly was not entitled to the relief claimed because he had not demonstrated before the County Court what had happened to all the cash received on behalf of the charity during the time that he was active as a trustee. That really was the principal point relied on by Mr Watts. As I say, HHJ Bird had, of course, to take a view as to whether he accepted evidence from Mr Kelly that Mr Kelly had paid out items out of his own money and that, if he had, that he had done so on matters that were properly incurred for and on behalf of the charity.

43. Mr Pugh has submitted that the judge's approach to the question of whether the sums spent were properly authorised on behalf of the charity failed to take proper account of the nature of the evidence. That is a matter which, if it stood on its own, might very well not amount to a sufficient ground of appeal. Likewise, a view as to the reliability of Mr Kelly's evidence in matters not supported by documentation would have been a matter for the judge to decide as between the rival witnesses and to consider the substance of Mr Kelly's evidence.

44. If those had been the only matters of which complaint was made, then it seems to me that the judgment would be likely to stand. But for the reasons that I have briefly mentioned, it seems to me that the judge's misunderstanding as to the nature of the hearing that was before him and, more particularly, his complete unawareness of the fact that the issues at large between the parties had been confined by the succession of hearings before the district judges that I have mentioned, together with the fact that in more than one respect the judge relied for the rejection of Mr Kelly's claim on points that were, as a result of those district judges' orders, not truly open and in dispute between the parties, means that Mr Pugh has succeeded in demonstrating that the judge's order was reached following what is a serious procedural irregularity in the proceedings below and regrettably, as one has to say, given the history of the litigation and the fact that in essence the four days incurred before HHJ Bird will have been entirely wasted, it seems to me that the court's order must be to set aside the order appealed and to remit the matter to the County Court at Liverpool to be reheard before a different judge on a proper basis.

45. I add that the judge to hear the rehearing should be a judge nominated by the Designated Civil Judge at Liverpool and the nominated judge should hear first a pre-trial review at which he or she can consider what directions should be given to achieve as economical, efficient and just a hearing of the outstanding issues as to quantum as is achievable. I say "the outstanding issues as to quantum" because it seems to me the starting point is that no issue to be open at that hearing which would not have been open at the hearing before HHJ Bird if he had properly understood the position. I would hope that the effect of a pre-trial review may be to further limit the issues because it is clear that, given the sum of the amounts claimed, the amount of time and effort that has already been deployed is more than disproportionate and a further hearing will only add to that disproportion, unless focus can be addressed in a specific way to the issues that are more important and the items of claim that are more important in terms of quantum.

46. The only further point that I would wish to add joining, as I have described, a succession of judges, is that it is still not too late for the parties to consider the benefits of mediation. As Tomlinson LJ said, a skilled mediator could achieve a great deal in the course of a proper mediation between the parties. Mr Pugh is, I am sure, aware of that and will be able to advise Mr Kelly, as he perhaps has already.

47. Mrs Brewer, Mrs Miller and Mr Watts may well, as litigants in person, be unaware of the benefits of mediation. My understanding is that at some stage in the history of the litigation, the Defendants have been willing to contemplate mediation. It can be a very commendable way of achieving a satisfactory result for all parties with relatively little in the way of effort and expenditure and I join those judges who have said the same before in commending it to the parties.

48. LORD JUSTICE MCFARLANE:

49. I agree that the appeal should be allowed for the reasons that my Lord has given. I also agree that the outcome should be as he describes, with the case being reheard before a fresh judge nominated by the designated civil judge in Liverpool.

50. I wish just to offer one or two further thoughts. Both sides -- and I include Mr Kelly in this -- will greet the prospect of having to have all of these matters reheard by a judge with a very heavy heart. Although Mr Kelly has succeeded on the appeal I suspect he, along definitely with those gathered listening to us in the Liverpool County Court, will not relish that prospect.

51. It is impertinent for me to suspect this, never having met any of the parties before, but I suspect they will all agree about a number of things. First of all, they all came to be in any form of relationship with each other and involved in this endeavour because they wished to support Animal Aid in its work in trying to relieve suffering and to care for animals in the Liverpool area. It is the love of animals that drew them together and that valuable work has, to a degree, been thwarted by what has gone on between them as individuals, albeit having a role in the charity over the past five years. The affairs of man have cut across what they would wish to be involved in doing and, as often is the case, it is affairs of men in relation to money that lead to a falling-out.

52. I suspect all will also agree that this has been a very unhappy period for them. It is expensive. It may not necessarily be expensive in financial terms, although there will have been a financial cost, but it is expensive, at least in terms of the time it will have taken up, for every single one of them to have been involved in this, the thought they have had to put into it, the worry that it has generated and the degree of emotional stress that each of them will have felt by being party to these proceedings. I suspect they all just want to get on with their lives now and return, if they wish, as I am sure they do, to the valuable work upon which they were all engaged. The sooner this unhappy period is brought to an end the better, to allow life to carry on and a line to be drawn under this.

53. We all know that in every aspect of everyday life when there is a dispute about money, eventually there is an end result. It may be a dispute in the workplace about the rate of pay, it may be a dispute about damages for an injury, it may be a dispute such as this, it may be a divorce case, but there is always an end result, there is always a figure at the end and the process by which you get to the figure in a fair way, quickly, is as important as whatever that figure is at the end of the day. Something that is a process that gets on and gets to the end finishing tape soon is, I would have thought, to be preferred and that is why my Lord and other judges have stressed mediation.

54. None of you have been well served by the court process and that is regrettable. The idea of starting all that again is, as I say, one that you will not welcome. So signing up just to sit down in a room with a mediator and see where you get to cannot be a bad idea and I would urge each of you -- because you all, in fact, I suspect, feel about this in the same way from your different perspectives -- to take up the suggestion of mediation.

55. LADY JUSTICE RAFFERTY:

56. I also agree. I seek to add only this. There are too many animals ill-served, ill-treated, unloved and too few individuals of noble, strong heart who want to do all they can to put that right, no matter how late in the day. My Lord Lord Justice McFarlane has it perfectly. All parties in this case, I am confident, are of that mindset and I would deferentially suggest that when they are considering whether to mediate and, if they mediate, how to approach matters, that they remind themselves that this court understands the nobility of their purpose throughout and that the time may have come for that to take priority over other, more human, interests.

57. (Following costs argument)

58. SIR TIMOTHY LLOYD:

59. Mr Pugh, on behalf of Mr Kelly, applies for the costs of the appeal and the costs of the hearing below. As it seems to us, the costs of the hearing below ought to await the outcome of the subsequent trial, if one has to take place, and therefore our order will be that the costs of the hearing before HHJ Bird are to be reserved to the judge hearing the new trial as to quantum. The costs of the hearing below, where Mr Kelly represented himself, would be simply the litigant in person basis of costs, the hourly rate and the disbursements.

60. So far as the costs of the appeal are concerned, which include the application for permission to appeal -- which, as I mentioned, came to an oral hearing before Tomlinson LJ at which Mr Pugh represented Mr Kelly -- Mr Pugh seeks an order which would cover the fees that Mr Kelly has to pay him, Mr Pugh, and also separate disbursements which would include the documents and so on, as well as the litigant in person's hourly rate.

61. In principle, Mr Kelly, having won the appeal, is the successful party and ought to obtain an order for his costs.

62. On behalf of the charity and, in effect, on behalf of all the Defendants, Mr Watts makes the point that we have identified an error on the part of HHJ Bird by proceeding on the wrong basis. Why, he says rhetorically, should the charity have to bear the cost of the judge's error? As it seems to me the fallacy in that is that it was for those appearing before HHJ Bird to attempt to make sure that the judge was aware of the basis on which the matter should proceed and it is quite interesting that in the discussion after HHJ Bird had given judgment, Mr Dickenson, who was, as I have mentioned, assisting the Defendants, asked the judge at a very early stage, in effect to set aside the judgment on liability which had already been entered and of which Mr Dickenson was well aware but the judge was wholly unaware. If the judge had been made aware of that at an earlier stage, then it may be that the judge would not have made the error that led him to conduct the matter in the procedurally irregular manner that I have described and which has justified, in my view, allowing the appeal. It is therefore not, I think, just the judge's fault. Whether, even if it were, that would justify Mr Watts' submission is another matter, but it is not, I think, a proper view of the case that the Defendants and those representing them have not in any way contributed to the error.

63. For those reasons I would make the order sought by Mr Pugh, namely that the Defendants pay the Claimant's costs of the appeal on the litigant in person basis to include the costs of the application for permission to appeal. There is no schedule or summary of those costs, despite it being a one-day hearing and maybe in a case brought and defended by litigants in person that is not surprising. The result is that the costs will have to be submitted to detailed assessment if they cannot be agreed.

64. LORD JUSTICE MCFARLANE:

65. I agree.

66. LADY JUSTICE RAFFERTY:

67. I also agree.