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

		Royal Courts of Justice Strand London WC2A 2LL
		24 January 2014

1. LORD JUSTICE LEWISON: 1. In September 2006, Mr Wiemer borrowed money from Beacon Homes limited to enable him to complete the purchase of Flat 19 Tolchurch, Dartmouth Close, London W11. The amount of the advance was £224,995. That money was used to pay off a prior mortgage, and on 10 November 2006 Mr Wiemer executed a mortgage in favour of Beacon Homes to secure the advance plus interest.
2. The terms of the Beacon Homes loan mortgage conditions were incorporated into the charge. Those terms required repayment of the advance by the end of the mortgage term and entitled the mortgagee to accelerate repayment of the principal sum in certain events. The mechanism for accelerating the advance was by making a demand. Conditions H81 and H83 provided that notice could be given at Mr Wiemer's contact address, and if it was, then there was a provision about deemed service. "Contact address" was defined as the property (that is to say the mortgaged property) or, if different, "the latest address in England and Wales you have notified to us in writing as where you usually live".
3. Under the terms of a preexisting arrangement, all Beacon Homes' rights and remedies under the mortgage were transferred to Redstone Mortgages Ltd, the claimant. Redstone alleged that Mr Wiemer was in breach of the mortgage conditions and that it was therefore entitled to accelerate repayment of the loan. In paragraph 28 of its Particulars of Claim dated 5 July 2010, it pleaded a demand dated 17 March 2010. Mr Wiemer's pleaded case denied that he had ever received it, but he advanced no positive case to support the denial.
4. Redstone applied for summary judgment. The main evidence in support of the application was the witness statement of Mr Heap, who said in paragraph 15 that Redstone had made the demand on 17 March 2010. In paragraph 24, he referred to Mr Wiemer's denial of receipt, but said that the fact was that a letter of demand was sent to Mr Wiemer "at his current address", and exhibited a copy of it. It was sent to Mr Wiemer at Orchard Cottage, Grange Farm, near Bury St Edmonds.
5. Mr Wiemer has told us this morning that in fact that is a property with which he was not associated, because there is another property which apparently bears the same name and is also at Grange Farm, but has a slightly different postcode. He also says that "current address" is not the same as "contact address" as defined in the mortgage conditions.
6. As to the first point, there is no evidence to that effect. As to the second, it is in my judgment unarguable.
7. Be that as a may, under CPR Part 24.5, a respondent to an application for summary judgment must file his written evidence at least seven days before the summary judgment hearing. On 10 May 2011, Mr Wiemer gave his first witness statement, in which he referred to Mr Heap's statement. He did not deny Mr Heap's statement that a valid demand had been sent and did not repeat the pleaded denial. Mr Wiemer made a second statement on 23 June which in the event Master Teverson did not admit into evidence, but the main point that he made in that statement was that he had not signed a mortgage deal at all. He produced the signature page of a mortgage relating to property at Hanwell House, W2, which in fact gave his address at Orchard Cottage. But, again, he did not deny having received the demand.
8. That was the state of the evidence at the time when the application for summary judgment came before Master Teverson on 24 June, although as I say he refused to admit Mr Wiemer's second statement which had been served late. A skeleton argument was prepared on Mr Wiemer's behalf by Mr David Nicholls of counsel. It took no point about the non-receipt of the demand. Nor, as it seems to me, was that suggested to Master Teverson, who dealt with the arguments that were raised before him and gave summary judgment for Redstone.
9. Mr Wiemer then applied for permission to appeal out of time against Master Teverson's decision. Mr Kirk of counsel prepared a skeleton argument on his behalf, dated 22 February 2012. That document took no point about non-receipt of the demand, but he does appear to have raised the point briefly before Roth J, who gave him permission to appeal, although as I say it was not in the skeleton argument.
10. The transcript records that Roth J was told, wrongly, that the demand had not been in evidence before the Master, and therefore that although Redstone had been put to proof it had not proved its case, but still no positive case on behalf of Mr Wiemer was advanced, and Roth J noted in the course of the hearing that he (that is Mr Wiemer) had not returned to the point in his evidence.
11. Following the grant of permission to appeal, Mr Wiemer made his fourth witness statement in August 2012. Again, he gave no evidence in support of a contention that he had not received a demand, nor was it a ground of appeal in his amended grounds of appeal. Redstone filed a Respondent's Notice, asserting amongst other things that there was no real prospect that Mr Wiemer could show that he had not received the demand. In his skeleton argument dated 25 October 2012, Redstone's counsel objected to the point about the demand being raised on appeal for all these reasons. He also pointed out that there was no evidence that Mr Wiemer had notified Redstone of a new contact address. The point, thus, was squarely in issue before the appeal which took place before David Richards J.
12. On 11 January 2013, Mr Wiemer made his fifth witness statement. He had clearly been advised about the principles in Ladd v Marshall because he referred to that case by name, and said that he was aware of the principles for which it stood. What he said about the demand was:

"The court will also be mindful, no doubt, that there is a material issue which is potentially triable in that I have denied receipt of any formal demand."

13. He said nothing more on that topic, despite the fact that Redstone's skeleton argument had raised the point that no new contact address had been notified. So there was still no positive case being advanced.
14. On 5 June 2013, Mr Wiemer's new counsel prepared draft re-amended grounds of appeal in which the demand point was taken for the first time, but apart from the single sentence in Mr Wiemer's fifth witness statement, which I have quoted, there was still no evidence from him addressing that point.
15. The appeal was heard by David Richards J on 10 June 2013. He gave Mr Wiemer permission to amend his grounds of appeal so as to take the demand point. He dealt with it as follows in paragraphs 27 to 34 of his judgment:

"The letter dated 17 March 2010 was addressed to Mr Wiemer at Orchard Cottage, Grange Farm, Bury St Edmonds, Suffolk IP28 6LX. That is Mr Wiemer's address as stated in the deed of mortgage and it is accepted by him that it qualified as his contact address, as defined, at that time in November 2006. It follows that posting the letter to him at that address was a valid demand unless he had subsequently notified the claimant in writing of another address."

16. I pause to note that Mr Wiemer has resiled from what was common ground before David Richards J in suggesting, without any evidence to that effect, that the Orchard Cottage address to which the demand was sent was not in fact the right address at any time, but that is a point which was common ground before David Richards J.
17. The judge went on:

"At the start of the hearing of the appeal there was no evidence before the court that Mr Wiemer had ever given notice of a new address. His defence did not plead that he had done so, although asserting that he had not received the letter. Nor did the witness statement admitted by the Master nor, for good measure, did the witness statement which he refused to admit. The same is true of a witness statement made by Mr Wiemer on 11 January 2013, well after Roth J had given permission to appeal by reference to the alleged non-receipt of the letter.

"Mr MacPherson first sought to overcome this difficulty by reference to statements of account in respect of the mortgage loan sent by the claimant to Mr Wiemer at the address of a property in London which he had also purchased with a loan from the claimant. These statement were dated 18 July 2008, 31 March 2009, and 31 March 2010. Mr MacPherson submitted that there was a real prospect of a successful defence on the basis of an inference that Mr Wiemer had notified the claimant of a new contact address at that London property and that disclosure by the defendant would or might make this good.

"Given that the claimant had addressed the letter dated 17 March 2010 to Orchard Cottage, the suggested basis for the inference appears very weak. But in any event, as I made clear to Mr MacPherson, this was a matter within the knowledge of Mr Wiemer and should have been the subject of evidence from him and not, or not just, inference from documents sent by the claimant."

18. The judge then referred to a witness statement which Mr Wiemer had made over the lunch break during the hearing of the appeal itself. The judge quoted part of it as follows:

"I notified Redstone the claimant respondent in late December or early January 2007 that Hanwell House was my new contact address and that I lived at Hanwell House. I believe that I notified Redstone in writing by letter, but am not certain."

19. David Richards J declined to give permission to adduce that evidence, because the point had been in issue and there was no reason or plausible excuse for not putting it into evidence until the hearing of the appeal ten months later, and even then only after observations made during counsel's submissions. To adduce the evidence would require an adjournment to enable the claimant to search its records and provide evidence in answer.
20. In consequence, David Richards J dismissed the appeal. Undaunted, Mr Wiemer now seeks permission to appeal against the decision of David Richards J. It would be a second appeal, and thus must satisfy the second appeals test, namely that it raises an important point of principle or practice, or there is some other compelling reason why this court should hear a second appeal.
21. In support of his application for permission to appeal, Mr Wiemer made another witness statement dated 1 July 2013, more than two years after the hearing before Master Teverson. In that witness statement, he produces two documents which, he says, support his argument that he notified Redstone of a new contact address and which he seeks to have admitted as fresh evidence on a second appeal.
22. The first is a letter from his solicitors, Zeckler and Co, dated 9 November 2006. That was the day before the mortgage was signed. It says nothing about any contact address, and since Mr Wiemer signed the mortgage on the following day, giving an address, it plainly cannot amount to notification of a new address. So that document proves nothing.
23. Moreover, in his second witness statement of 23 June 2010, Mr Wiemer said that he had recovered files from Zeckler and Co via a delivery up action, and indeed this very letter is at page 274 of our appeal bundle which was one of the exhibits to Mr Wiemer's third witness statement. Accordingly, anything disclosed by that letter was available to Mr Wiemer even before the hearing before Master Teverson, let alone before the hearing in front of David Richards J.
24. The second document purports to be a copy of a letter sent to Redstone on 20 December 2006 informing them of a change of contact address and giving his new address as 6 Hanwell House, London W2. That letter, therefore, bears the date some six weeks after the mortgage was signed. Mr Wiemer's evidence about that is as follows:

"Unfortunately, the two letters were not in the file relating to the dispute concerning 19 Tolchurch, London W11, because they were placed in other files relating to land registry proceedings [the letter dated 9 November 2006] and another property which I owned, being 9 Edric House(?), London SW1 [the letter dated 20 December 2006]. Both files relating to the matters were packed up in boxes as both matters are no longer live."

25. . He goes on in paragraph 13 to say:

"The letter of 20 December 2006 was sent to the claimant in order to change the contact address for the three mortgage accounts I at the time had with the claimant. For some reason that letter was placed in the file account number 210333608, despite the fact that the letter relates to all three accounts, namely 201333608 [Edric House], 210326810 [Hanwell House] and 210365710 [Tolchurch]. That letter should, therefore, be in every single file. However, this letter was only in file 210333608. It appears the letter was filed in alphabetical order, thus it was in the Edric House file and not the Tolchurch file or Hanwell file."

26. n fact in his submissions this morning, Mr Wiemer resiled even from that, saying that this was not the sort of letter that would have been in every file, and he said that it was not a question of misfiling. He has also said this morning, although again it is not in evidence, that he had a laptop containing electronic records which was stolen some time before the demand and which would, or might, have contained an electronic copy of this letter.
27. These files are Mr Wiemer's own files, although they may well have been in storage. It was plain from the mortgage conditions that any change of contact address had to be made by giving written notice to Redstone. It was obviously critical, therefore, for Mr Wiemer to be able to produce, or at least to allege that he had sent, a written communication. If he had only three accounts with Redstone, and thought that he had notified Redstone of a change of contact details, why did he not search all three files in all the many months that elapsed between the grant of the permission to appeal and the appeal hearing, bearing in mind particularly that Redstone's skeleton argument for the appeal had put the point squarely in issue? We can infer that he looked in the file relating to Hanwell House because he produced the signature page of the mortgage relating to that property as an exhibit to his second witness statement.
28. So what is effectively being said is that there was one additional file, perhaps in storage, which could have been searched for what Mr Wiemer now says is crucial evidence. It is all the more surprising that this search was not carried out in view of the fact that even before the hearing before David Richards J, as Mr Wiemer's evidence shows, he was aware of the principles of Ladd v Marshall and needed to demonstrate that all reasonable diligence had been employed in producing evidence which had not been produced before the Master.
29. It is well established by the decision of this court in Aylwen v Taylor Joynson Garrett [2001] EWCA Civ 1171, [2002] PNLR 1 that the principles governing the reception of fresh evidence on appeal apply equally to appeals against summary judgment, but the current situation is in my experience unique. Not only is this an application to admit fresh evidence on a second appeal, rather than a first appeal, it is an application to admit fresh evidence when an application to admit fresh evidence going to the same issue has already been considered and rejected by the first appeal court. It is not a case, in my judgment, in which it can be said that the judge was wrong to refuse the minimal evidence presented to him. This is simply an attempt to improve on the fresh evidence that was placed before the judge.
30. Although it is not precisely in point, because it considered the power to reopen an appeal under CPR part 52.17, Uddin (A Child) [2005] EWCA Civ 52, [2005] 3 All ER 550 sheds some light on the approach. In that case, this court said:

"The principles upon which this court on a first appeal, brought in the ordinary way, will admit fresh evidence and decide the case in the light of it, or remit the matter for a fresh trial, are well known. They are encapsulated in the decision in Ladd v Marshall [1954] 1 WLR 1489, which is referred to in Taylor v Lawrence with some little modification since the CPR came into force, into which it is unnecessary to go."

The court contrasted that with a second appeal, saying:

"The principle of finality yields so as to allow a first appeal on Ladd v Marshall grounds, but it will prevail so as to disallow a second appeal Taylor v Lawrence application on such grounds."

31. That case was a case in which an appeal had already been decided by the Court of Appeal on appeal from the Family Division, so it is not quite on all fours with our case. But in the case of a first appeal, the applicant has only had one previous chance to adduce the evidence, namely at the original hearing. In the case of a second appeal, he has already had two chances, once at the original hearing and once again on the first appeal.
32. These features mean that in my judgment it is appropriate to adopt a more stringent approach to the admission of fresh evidence on a second appeal than would be adopted on a first appeal. That, I believe, is consistent with the second appeals test in CPR part 52.13, namely that there must be a compelling reason for this court to hear a second appeal if it does not raise an important point of principle or practice. But in any event, I am not satisfied that the evidence could not have been obtained with reasonable diligence, either before Master Teverson or before David Richards J.
33. But even if that condition could be satisfied, I am not persuaded that the evidence is so strong that it ought to be admitted on a second appeal. Moreover, David Richards J considered the question of receiving fresh evidence on the first appeal and rejected it on solid case management grounds.
34. I would therefore refuse the application to admit fresh evidence on a second appeal.
35. As Floyd LJ said in dealing with the application on the papers, the remaining grounds of appeal do not satisfy the test for a second appeal. I would therefore refuse permission to appeal.
36. LORD JUSTICE FLOYD: If the further evidence which Mr Wiemer seeks to adduce had been unanswerable, a difficult question might have arisen as to whether there was a compelling reason to allow a second appeal. But as my Lord has indicated, the further evidence raises a number of questions. It gives rise to an issue of fact as to whether the letter was ever received, and in those circumstances I am entirely satisfied it would be wrong to admit the evidence at this stage.
37. I therefore agree that permission to appeal should be refused.