England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London WC2
		27 January 2004

MR JUSTICE ETHERTON:

Introduction

1. There are before me two appeals by Mrs Fleur Draper ("Mrs Draper").
2. One is an appeal ("the First Appeal") from an order of His Honour Judge Zucker QC in the Central London County Court on 7 April 2003 dismissing Mrs Draper's application to set aside an order made by His Honour Judge Green QC in the Central London County Court on 18 February 2003 for payment by Mrs Draper of arrears of rent in the sum of £11,576.01 to the respondent landlord, St Ermin's Property Company Limited ("St Ermin's"), and for possession of 52 Bishop's Mansions, Bishop's Park Road, London SW6 ("the Flat") and other relief ("the Possession Order").
3. The second appeal ("the Second Appeal") is from that part of an order of Judge Zucker on 28 April 2003 by which Mrs Draper was ordered to pay St Ermin's costs on an application by Mrs Draper for a stay of execution of the Possession Order pending appeal.
4. On 31 October 2003, at a contested oral hearing, Mr Justice Blackburne gave permission to appeal in both appeals. He also gave permission to Mrs Draper to file and serve amended grounds of appeal in both appeals.

The background

5. On 19 July 1967 London County Freehold and Leasehold Properties Limited let the Flat to Mrs Draper's mother for a term of three years and 74 days from 17 July 1967 to 29 September 1970. On the death of her mother in 1971 Mrs Draper became the Protected Rent Act tenant of the Flat.
6. The reversionary interest in Mrs Draper's tenancy became vested from time to time in different persons. By 1992 the reversionary interest was vested in Northumberland and Durham Property Trust Limited ("Northumberland"). It was transferred to Jameson Properties Limited ("Jameson") in April 1999. In February 2002 the reversionary interest was acquired by St Ermin's.
7. Jameson commenced possession proceedings against Mrs Draper in August 2000, claiming possession of the Flat under Case 1 of Schedule 15 to the Rent Act 1977 on the ground of arrears of rent totalling £18,797.44.
8. In her Defence and Counterclaim dated 18 December 2000 Mrs Draper made no admission as to the allegation of arrears of rent. Insofar as there were arrears, she claimed to be entitled to set off in extinction or diminution of such arrears any sums awarded to her under her Counterclaim.
9. She alleged that since about 1988 the flat above had been let to a succession of occupiers, whose conduct had caused her disturbance, discomfort and inconvenience, including noise, the holding of parties, the falling down of the ceiling and the escape of water into the Flat. She took the view that Jameson and Northumberland were liable to her for those matters. She had withheld her rent with effect from November 1996 for that reason.
10. The Defendants to Mrs Draper's Counterclaim were Jameson and Northumberland.
11. In her Counterclaim Mrs Draper gave particulars of alleged breaches of terms of the tenancy, including the falling down of ceilings in the Flat on five or six occasions since 1992, the condition of the structure and exterior of the Flat, and the fact that electrical installations in the Flat were unsafe and had been disconnected.
12. She alleged that those matters also constituted a nuisance for which Northumberland and Jameson were liable, or were the consequences of negligence by them or breach of the Defective Premises Act 1972 s. 4 which had caused her loss and damage.
13. Mrs Draper thereafter paid her rent as it fell due.
14. By Jameson's amended Reply and Defence to Counterclaim Jameson denied that Mrs Draper was entitled to a set off. Jameson denied breach of any obligation to repair or breach of any covenant for quiet enjoyment. It further claimed that Mrs Draper had on numerous occasions refused to permit Jameson access to the Flat for inspecting the alleged disrepair and obtaining quotes, and had similarly refused to permit agents for the owners of the flat above to enter and inspect. No admissions were made as to any of the alleged defences. Nuisance, negligence and breach of the Defective Premises Act 1972 s. 4 were also denied.
15. Jameson further denied that it could be liable for anything that had happened before it acquired the reversion in 1999, or that Mrs Draper was entitled to set off against arrears of rent falling due prior to that time, or that Mrs Draper could recover or set off any damages in respect of losses occurring more than six years before the date of her Counterclaim.
16. Further, in its Defence Jameson alleged that, in relation to the issue of the reasonableness of making the order for possession, it relied upon breach by Mrs Draper of the term of her tenancy that she should not cause a nuisance or annoyance to other occupiers of the building of which the Flat formed part. Jameson alleged that, in breach of that term, Mrs Draper had frequently played loud music so as to disturb the occupants of other flats and had been rude and abusive to the lessees and occupiers of other flats and their guests, visitors and agents.
17. Northumberland's amended Defence broadly comprised non-admissions and denials of the various allegations by Mrs Draper. It also alleged that Mrs Draper had "throughout the period in question" refused to allow inspections when requested and refused to allow access to Northumberland, its agents and contractors. It also relied upon the Limitation Act 1980 in respect of any claim which accrued prior to Mrs Draper's Counterclaim.
18. In November 2001 Jameson amended the Particulars of Claim to include, as a ground for possession, that Mrs Draper had failed to comply with her tenancy by refusing the landlord access and all reasonable facilities for executing repairs in the Flat which the landlord was entitled to execute.
19. It also added, as a ground for possession, the allegation of breach by Mrs Draper of the term of her tenancy that she should not cause a nuisance or annoyance to other occupiers of the building, and it cross-referred to the details given in Jameson's amended Reply and Defence to Counterclaim.
20. The proceedings were eventually listed to come on for trial at the Central London County Court in May 2002. The parties attended Court with their legal advisers and witnesses. In the event, the trial could not take place since no judge was available to hear it then.
21. The trial was refixed for 9 October 2002.
22. Between the date of the aborted trial in May 2002 and the adjourned hearing fixed for 9 October 2002 the following occurred.
23. First, St Ermin's was substituted as Claimant.
24. Second, in September 2002 Mrs Draper's solicitors, Peter Horada & Co, applied to come off the record.
25. Third, on 18 September 2002 Mrs Draper applied for an adjournment of the trial fixed for 9 October 2002 because she was "awaiting reinstatement of [her] Legal Help funding and would be without Legal Representation at any hearing" on that date.
26. On 9 October 2002 the parties attended the Central London County Court before His Honour Judge Bradbury. At a hearing at which St Ermin's and its legal advisers were not present, Judge Bradbury permitted Peter Horada and Co to come off the record.
27. Upon Mrs Draper giving St Ermin's solicitors a cheque for £5,885 on account of the claim for rent arrears, and giving certain undertakings, Judge Bradbury ordered that the trial be further adjourned to 17 February 2003 and ordered that Mrs Draper pay St Ermin's costs thrown away by the adjournment.
28. The undertakings given by Mrs Draper on that occasion were to pay the rent or the balance for the period ending 24 December 2002 within seven days, to pay the rent due on 25 December 2002 and each quarterly payment thereafter on or before the due date, to give St Ermin's and the superior landlord or their respective duly appointed agents, contractors and workmen access to the flat.
29. Subsequently, Mrs Draper applied to set aside the undertakings that she had given to the court before Judge Bradbury, and St Ermin's, for its part, applied to commit Mrs Draper for breach of those undertakings. On 20 December 2002 those applications came before His Honour Judge Crawford Lindsay QC. He dismissed Mrs Draper's application and made no order on St Ermin's application.
30. On about Thursday 13 February 2003 Zelin and Zelin agreed to take over Mrs Draper's case, subject to extension of her legal aid, which was about to expire.
31. On Monday 17 February 2003 the trial was listed before Judge Green. St Ermin's representatives, solicitors and counsel and several witness attended. Neither Mrs Draper nor anyone on her behalf attended.
32. Mrs Draper's daughter, Mrs Grainger, who lived, and still lives, with her in the Flat, delivered to the Court that morning a letter from Mrs Draper dated 16 February 2003, the material part of which said as follows:

"I am the First Defendant in this matter.

I wish to give my deepest apology both to His Honour and to the Court for my being unable to attend this Hearing due to very severe increase of immobility and pain in my 'almost destroyed' right hip: I am Registered 'Severely Disabled almost housebound'. This has almost certainly been brought about by the acute stress I have been undergoing in attending Hearings whilst urgently seeking new solicitors having had appalling difficulties with solicitors used who have mishandled my case as well as being negligent.

Messrs Zelin & Zelin have agreed to act for me and this was undertaken at the eleventh hour, ie: 13 February and my Legal Aid Certificate with its public funding in reserve is being activated: but the former solicitor who acted is who holding the papers and these will be requested.

I also understand that my new firm of solicitors has contacted the Court and also the Claimants' solicitors as to events. This will be for Adjournment in the circumstances. I have been warned by reputable firms who were appraised of the facts and mishandling unravelling such a 'mess' will take time.

It should be noted that not only claimant's predecessor in title (Jameson Properties Ltd) received all rentals due but the claimant itself (St Ermins Property Co Ltd) has also received all rentals due on the normal quarterly basis and up to 25 March 2003 inclusive so there can be no claim regarding 'hardship' on their part.

I have a good and substantial defence and counterclaim: but no Schedule of Special Damages has been filed (although from the outset I instructed such) responses to witness statements (which are vitriolic nonsense) also have not been filed and so on and so on. It is some measure that the Legal Services Commission have allowed me six solicitors plus no less than four individual extensions while searching solicitors.

My daughter and I have had taken from us 14 years of normal life by this (continuing) nightmare of stress nuisance and damage to our home. I believe it to be without parallel.

I Have Given A Truthful Statement."

33. Judge Green refused to adjourn the trial. Oral evidence was given by two of St Ermin's witnesses. The Judge permitted nine witness statements to be put in evidence.
34. Judge Green delivered his judgment on 18 February 2003.
35. By the Possession Order he ordered that Mrs Draper's application to adjourn be dismissed, there be judgment for St Ermin's for arrears of rent in the sum of £11,576.01, Mrs Draper give possession of the Flat by 4pm on 2 April 2003, all Part 20 claims be dismissed, and Mrs Draper pay the costs of St Ermin's and Jameson and the costs of the Part 20 proceedings of those parties and Northumberland.
36. Unknown to Judge Green, Zelin and Zelin had sent by fax to the Court a letter on 17 February 2003, requesting an adjournment. That letter, so far as relevant, said as follows:

"We confirm that we were, on the 14th February, consulted by Mrs Draper.

Mrs Draper has had previous solicitors acting for her and, as we understand matters, a Public Funding Certificate is no longer in force. She has requested that we make representations to the Legal Services Commission in respect of her Public Funding and obtaining her file from her previous solicitors. We have undertaken to do this.

Accordingly, we would request that the present hearing be adjourned and re-listed to the first open date after 28 days."

37. On 28 February 2003 Mrs Draper applied to set aside the Possession Order. In her application she said, among other things, as follows:

"To my extreme shock and distress I have learned from a Court official that despite being a protected tenant of some 36 years standing because I was unable for submitted medical reasons to attend Court I was to be made homeless ALTHOUGH AT THE PARTICULAR TIME I gave notice of withholding of rental to my then landlords (N & D (L) Ltd/Grainger Trust Plc Mr. Geoff Davies chief Accountant, in writing: AND the then Landlords accepted responsibility AND the (continuing) disrepair and inflicted damage to my home was severe even devastating. Such action only undertaken by me in despair having continued to pay my rent in full and on time for 4 years whilst suffering appalling damage dislocation and inconvenience in my home. In fact, my (then) landlords chose to sell their reversion behind my back at auction rather than proceed against me for recovery."

38. In support of that application Mrs Grainger made a statement, with a verification of the truth of its contents, dated 2 April 2003. It said as follows:

"1. I Caroline Grainger do state that I am the daughter of Mrs. F. Draper and live with my mother at 52 Bishops Mansion SW6.

2. My mother sufferes severely from an arthritic right hip (diagnosed as 'almost destroyed) and I am her Registered Carer in receipt of official Carer's allowance therefor.

3. An appointment was arranged by Ms Heather McBreardy solicitor at Messrs. Zelin & Zelin Edgware Road W2 in the afternoon of Thursday 13 February 2003: which appointment was lengthy lasting some 40 minutes at the end of which my Mother was immensely relieved as Ms McBreardy had stated categorically she would take on the case making representations at the Court etc etc. And also confirm by DX or other to the Legal Services Commission for transfer of my Mother's Legal Aid Certificate which was 'live' at that date. Total assurances were given to my Mother: and she was taken down in the lift by a young man who appeared to be a student filling in at the switchboard/post room called 'Ken' The last words given to my mother by Ms. McBreardy before the lift doors closed were: "Don't worry everything is solvable you can go home and have a worry free evening" end quote which tremendously relieved my Mother. It may be added that Ms. McBreardy told my mother she would immediately 'contact the other side'.

4. Over the weekend of 15/16 February my Mother's health due to pain and nervous exhaustion deteriorated. In the early morning of the 16 Feb it was apparent she was unable to rise from bed. In the late evening of 16 February ie the Sunday so concerned was my Mother she might not be able to attend she dictated a Statement for such eventuality. Because of the deterioration in health this proved to be the case and was taken up with covering note to the clerk at Room 5."

39. The application came before Judge Zucker on 7 April 2003. Mrs Draper was represented on that occasion by Mr Mason, counsel, who represented her under the Bar's pro bono scheme. The application was, as I have already said, dismissed, with costs, by Judge Zucker.
40. On 14 April 2003 Mrs Draper applied for a stay of the warrant of possession because:

"Application has been made to the Court of Appeal for leave to appeal to have the order of 9th April 2003 (Hearing 7 April 2003) set aside and representations as to the grounds of my Appeal."

41. That statement was not in fact correct. The appeal was not issued until 23 April 2003.
42. The stay application came before Judge Zucker on 28 April 2003, when he granted a stay for 28 days, but ordered that Mrs Draper pay St Ermin's costs. Mrs Draper represented herself on that occasion.

Representation

43. On the hearing before me, Mrs Draper was represented by Mr Jan Luba QC and Miss Hannah Rought-Brooks. St Ermin's was represented by Mr John Clargo.

The First Appeal

The CPR

44. The application to set aside the Possession Order is governed by CPR 39.3(3) to (5), which are, so far as relevant, as follows:

"(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; and

(c) has a reasonable prospect of success at the trial."

Judgment of Judge Zucker

45. When the application to set aside the Possession Order came before Judge Zucker, it appears that he had a significant number of documents before him, but it is not clear whether they were comprised in the trial bundles that had previously been before Judge Green or were papers in the court file. He was taken through the procedural history by Mr Clargo, and had the benefit of skeleton arguments of counsel.
46. He began his judgment by referring to the hearing before Judge Green on 17 and 18 February 2003, and the letter written to the Court by Mrs Draper dated 16 February 2003.
47. He then said:

"There was no medical evidence to support what Mrs Draper said and, no doubt, having regard to the long history of this litigation, the learned judge decided to go ahead with the hearing and to have all the relevant facts placed before him."

48. He then set out the procedural history of the proceedings.
49. He then referred to the letter from Zelin and Zelin to the Court dated 17 February 2003.
50. Having next set out the relevant provisions of CPR 39.3 he concluded that Mrs Draper satisfied the requirement that the applicant act promptly within CPR 39.3(5)(a).
51. He found that Mrs Draper had not, however, satisfied the requirement in CPR 39.3(5)(b) that she had a good reason for not attending the trial. In that regard he said the following:

"9. As far as having a good reason for not attending the trial is concerned, Mrs Draper has not satisfied me about that. She clearly is to a considerable extent disabled but she has appeared on previous occasions, she has appeared today. There was no medical certificate before His Honour Judge Green and there is no medical certificate before me today to confirm that Mrs Draper's condition was such on 17th February that she was unable to attend the trial. Her letter of 16th February was before His Honour Judge Green. He considered it, I have no doubt, with the utmost care and decided to go ahead."

52. Further, Judge Zucker found that Mrs Draper had not satisfied the requirement in rule 39.3(5)(c) that she had a reasonable prospect of success at trial. On this aspect he said as follows:

"10. As far as reasonable prospects at the trial are concerned, I am not satisfied that any reasonable prospect has been shown. There is no statement or affidavit which goes into the facts. I am told by Mr Clargo, who has appeared throughout for the claimants and appeared before His Honour Judge Green, that Judge Green went very carefully into all the facts, including the question whether the landlords wished to carry out the works and whether or not they had indeed been refused entry. I note that, having given an undertaking at an earlier stage to permit access, Mrs Draper subsequently sought to resile from her undertaking.

I have no reason to believe that this is not a case where the landlords have acted properly throughout, would carry out any necessary repairs if requested to do so, and have not been permitted to do so. That, I understand, was the substance of His Honour Judge Green's judgment, which he reserved from the 17th to 18th February. There is no reason to believe that any further hearing would achieve any other result."

53. In the light of his findings that Mrs Draper had not satisfied him on the matters in rule 39.3(5)(b) and (c), Judge Zucker was bound to reject Mrs Draper's application to set aside the Possession Order.
54. He went on, however, to consider the exercise of a general discretion. As to this he said as follows:

"Of course, quite apart from the fact that Mrs. Draper has not satisfied me about the matters about which she must satisfy me, I have ultimately a discretion. Looking at the matter overall, this is clearly a case of a litigant who, for various reasons, is unable to retain her solicitors, is unable to appear on dates fixed for trial with a legal aid certificate in being and represented by solicitors, and I have no doubt that were I to set aside this judgment there would be manifold delays and difficulties in getting this case properly before a judge for a hearing. There has to be a finish to all litigation. It is time this litigation is brought to an end and I dismiss this application."

Mrs Draper's case

55. It is not in dispute on this appeal that Judge Zucker was wrong to conclude that Mrs Draper was unable to show that she had a reasonable prospect of success at trial.
56. The claims of St Ermin's for arrears of rent and possession, and Mrs Draper's Counterclaim, turn upon, among other things, disputes of fact as to damage and disrepair to the Flat and its exterior and the cause of them, and as to consequential loss and damage to Mrs Draper and her possessions, the circumstances in which and the reasons why she refused access to the Flat by St Ermin's, Jameson and Northumberland, and whether Mrs Draper had caused nuisance and annoyance to other occupiers of the building of such a kind and in such manner as to amount to breaches of her tenancy.
57. As Mr Clargo conceded before me, it is impossible to conclude, in advance of oral evidence and cross-examination, that Mrs Draper has no reasonable prospect of successfully defending the proceedings, and successfully establishing her Counterclaim, in relation to those matters.
58. Accordingly, the critical issue on the appeal is whether Judge Zucker was right to conclude that Mrs Draper failed to establish that she had a good reason for not attending the trial.
59. On this aspect, Mr Luba made the following points. First, he accepts that this Court is carrying out a process of review of Judge Zucker's order rather than a re-hearing of Mrs Draper's application to set aside Judge Green's order of 18 February 2003: CPR 52.11.
60. Second, he says that the reasoning of the Judge, in paragraph 9 of his judgment, breaks down into two components. The first is that, although Mrs Draper is to a considerable extent disabled, she had in fact appeared before him on other occasions and she appeared before him on 7 April 2003 itself. The second component is that Mrs Draper did not produce to Judge Green, and did not produce to Judge Zucker himself, any medical certificate justifying her non-attendance on 17 and 18 February 2003.
61. As to the first component, Mr Luba submitted that Judge Zucker had effectively misdirected himself. The fact that Mrs Draper had appeared on previous occasions demonstrated, in her favour, Mr Luba submitted, that she had not relied upon ill health on other occasions to avoid resolution of issues by the Court. In both May 2002 and October 2002 she had attended Court, ready to give evidence at any trial that might take place.
62. As to the second component, Mr Luba submitted that Judge Zucker had effectively treated the existence of a medical certificate or opinion as an essential evidential requirement of a successful application under CPR 39.3(5). Judge Zucker had, in effect, rejected the evidence as to Mrs Draper's physical state on 17 February 2003, which was contained in Mrs Draper's letter to the court dated 16 February 2003, Mrs Draper's application to set aside dated 28 February 2003, and Mrs Grainger's statement dated 2 April 2003, without any cross-examination.

St Ermin's case

63. St Ermin's case may be summarised briefly as follows.
64. Mr Clargo's starting point was that, on an application to set aside a judgment on the ground that the applicant's medical condition precluded attendance at Court, probative and cogent medical evidence ought to be provided to the Court from a qualified medical practitioner. That was never done by Mrs Draper in the present case.
65. Mr Clargo submitted that, in the absence of such evidence, Judge Zucker was entitled to conclude that Mrs Draper's evidence was insufficiently cogent to satisfy the requirement in rule 39.3(5)(b). In this connection, Mr Clargo emphasised that, if the deterioration in Mrs Draper's condition over the weekend of 15 and 16 February 2003 was such as Mr Draper said it was, then Mrs Draper would have called a doctor on the Sunday night, when Mrs Grainger prepared notes for a possible letter to the Court seeking an adjournment.
66. Mr Clargo submitted that, in the absence of medical evidence, there was no independent corroborative evidence of Mrs Draper's medical condition. The only evidence was from Mrs Draper and her daughter, who, as I have said, lives with her in the Flat and who, Mr Clargo submitted, might be expected to succeed to her tenancy on her death. They were both interested parties. Mr Clargo said that, to set aside an order in the absence of medical evidence in such circumstances, would be to provide a charter for Mrs Draper and other persons to set aside judgments.
67. Mr Clargo referred to and relied upon the following statement by Lord Justice Mummery in Brazil v Brazil [2002] EWCA Civ 1135 at paragraph [12] in connection with the requirement in rule 39.3(5)(b):

"There has been some debate before us, as there was before the judge, about what is or is not capable of being a 'good reason.' In my opinion the search for a definition or description of 'good reason' or for a set of criteria differentiating between good and bad reasons is unnecessary. I agree with Hart J that, although the court must be satisfied that the reason is an honest or genuine one, that by itself is not sufficient to make a reason for non-attendance a 'good reason.' The court has to examine all the evidence relevant to the defendant's non-attendance; ascertain from the evidence what, as a matter of fact, was the true 'reason' for non-attendance; and, looking at the matter in the round, ask whether that reason is sufficient to entitle the applicant to invoke the discretion of the court to set aside the order. An over analytical approach to the issue is not appropriate, bearing in mind the duty of the court, when interpreting the rules and exercising any power given to it by the rules, to give effect to the overriding objective of enabling it to deal with cases justly. The perfectly ordinary English phrase 'good reason' as used in CPR 39.3(5) is a sufficiently clear expression of the standard of acceptability to be applied to enable a court to do determine whether or not there is a good reason for non-attendance."

68. Mr Clargo also referred to the decision of Mr Justice Laddie in Thomson Directories Limited v Planet Telecom Plc [2003] EWHC 1882. That concerned an application to set aside a judgment given in the absence of the applicant who claimed he had been unable to attend on medical grounds. In that case the Judge had before him a medical certificate. Mr Clargo relied upon the case as an example of the Court placing weight upon evidence of an independent medical opinion.
69. Mr Clargo submitted that, in reaching his view, Judge Zucker would have been aware of the procedural history, which he had been told by Mr Clargo. In particular, he would have been aware of the attempts by St Ermin's to obtain access and orders made by the Court to achieve such access for the purpose of inspection and repairs, including a mandatory order granted against Mrs Draper by His Honour Judge Wakefield on 24 September 2002, the undertakings given by Mrs Draper before Judge Bradbury on 10 October 2002, the unsuccessful application by Mrs Draper to discharge those undertakings, and the application by St Ermin's for contempt for Mrs Draper's alleged failure to comply with the undertakings, which applications, as I have said, came before Judge Crawford Lindsay on 20 December 2002.

Analysis

70. I should say at the outset that I fully sympathise with the position in which Judge Zucker found himself. The history of the proceedings has been long and drawn out. There had been two previous adjournments of the trial before the hearing fixed for 17 February 2002. Mrs Draper has had several sets of solicitors. Judge Green himself considered Mrs Draper's application for an adjournment and had rejected it and had gone on to consider oral evidence and deliver judgment. There was no medical certificate in support of Mrs Draper's application. Further, before Judge Zucker, it was the contention of St Ermin's that Mrs Draper had no reasonable prospect of succeeding in the litigation, if Judge Green's order was set aside. In those circumstances, further costs would be incurred by St Ermin's that would, in all probability, prove to be irrecoverable.
71. Nonetheless, I consider that Judge Zucker's order ought to be set aside.
72. There was, and is, no dispute that Mrs Draper was at the time of the hearing before Judge Green some 74 years of age, suffering from arthritis, including, in particular, an arthritic right hip. She was then registered as disabled, had significant restricted mobility and was entitled to disability living allowance.
73. There was before Judge Zucker evidence as to her medical condition on 17 February 2003, principally in Mrs Draper's letter to the Court dated 16 February 2003, Mrs Draper's application to set aside dated 28 February 2003, and Mrs Grainger's statement dated 2 April 2003.
74. He rejected such evidence. It appears from paragraph 9 of his judgment that he rejected that evidence essentially on two grounds. First, on the basis that she had been able to appear before the Court on previous occasions and before him on that date; secondly, on the basis that no medical certificate had been produced to confirm her condition on 17 February 2003.
75. In rejecting the evidence as to Mrs Draper's condition, the Judge did not specifically refer to the lack of cogency of the explanation of Mrs Draper's medical condition by Mrs Draper and her daughter contained in their respective letters and statements to the Court. They were not subjected to cross-examination upon those statements, and so he did not and could not rely on any lack of cogency arising from any oral statements by them.
76. Mr Clargo, as I have said, submitted that the Judge was entitled to take into account the procedural history of the case. There was nothing, however, in the procedural history which could properly have led the Judge to conclude that Mrs Draper or her daughter had so conducted themselves as to be unreliable. The adjournment in May 2002 was without fault of either party. There is no evidence that the adjournment in October 2002 had been due to any impropriety on the part of Mrs Draper. In that connection, Mr Clargo relied upon the fact that Mrs Draper was ordered to pay the costs of the adjournment. There is no transcript or explanation by Judge Bradbury, however, as to the basis for the exercise of that discretion as to costs. Mr Clargo conceded that he was unable to make out any case before me, let alone before Judge Zucker, as to misconduct by Mrs Draper in relation to the October 2002 adjournment.
77. In relation to the undertaking to permit access by Mrs Draper given to Judge Bradbury at the October 2002 hearing, and the subsequent application to commit, it is to be noted that no order was made on that application. Mr Clargo, again, frankly conceded that he is not able to say, and was not in a position to say to Judge Zucker, that it was clear, in the absence of oral evidence from Mrs Draper, that she had so conducted herself in relation to denial of access that she was inherently unreliable in giving her evidence.
78. Paragraph 9 of the judgment of Judge Zucker refers, in the last sentence, to the fact that Mrs Draper's letter of 16 February 2002 was before His Honour Judge Green, who "considered it, I have no doubt, with the utmost care and decided to go ahead."
79. The decision by Judge Green was of no assistance on Mrs Draper's application before Judge Zucker. There was considerably more evidence before Judge Zucker, and Mrs Draper and her daughter were available for cross-examination before him on their statements.
80. Mrs Draper and her daughter had given a full account of why the letter delivered to the Court on 17 February 2003 was dated 16 February 2003, and that account has not been challenged. They gave a clear and full account of what took place over the weekend of 15 and 16 February. That evidence was not inherently incredible.
81. Mr Clargo laid weight, as I have said, on the fact that, if Mrs Draper's account was true, it might have been expected that Mrs Draper would have called in a doctor on Sunday 16 February 2003 in view of Mrs Draper's apparently deteriorating condition. Mrs Draper was not, however, examined before Judge Zucker as to why she did not call in a doctor, and neither she nor her counsel were asked by the Judge about that point.
82. An explanation has, in fact, been given by Mrs Draper in a witness statement dated 28 October 2003. That witness statement was referred to, without objection by St Ermin's counsel, at the contested oral hearing for permission to appeal before Mr Justice Blackburne. Mr Clargo did not object to the explanation in the witness statement being referred to in the appeal before me. In that witness statement Mrs Draper said as follows:

"13. I sent a letter to the Court stating that I was unable to attend the hearing because of a 'very severe increase of immobility and pain'. Regarding the query as to why I did not call up the GP whilst stricken with my hip, this was because it is a reoccurring condition as the GP stated and passes. However, if I were to call up my GP on every occasion that I find myself so stricken I would soon be struck off. As stated I was certain that I was being represented by Zelin & Zelin on the 17 February. However it transpired that on the 17 February the Clerks at Central London County Court had conducted an urgent, thorough search for any fax but no trace of any fax from Zelin & Zelin to the Court could be found. Incidentally, I have noted with some concern that the date given on the statement to the Court is 16 February 2003. This is a typographical error. It should have read 17 February 2003. It is not unreasonable that such an error had occurred considering that when my daughter, under very considerable strain herself, typed it in a great hurry as she had to present it before the Hearing which commenced at Central London at 10.00am and deliver this to the Clerk."

83. I would also observe that, if Mrs Draper's hip had only "locked" on the morning of 17 February 2003, as was the evidence before Judge Zucker, there was no time at that stage to obtain a medical certificate before the hearing began on that date.
84. Mr Clargo emphasised that there was certainly no explanation or excuse for the failure to obtain a medical certificate by the time of the hearing before Judge Zucker on 7 April 2003. That point, again, was never put to Mrs Draper in cross-examination on that date. Nor was the point mentioned by the Judge to counsel for Mrs Draper.
85. In fact, Mrs Draper was in effect a litigant in person between the hearing before Judge Green and the time when she became represented by Mr Mason before Judge Zucker. There were no solicitors representing her during that period. The evidence is that Mr Mason, who as I have said represented her under the Bar's pro bono scheme, was retained at a very late stage and, at the time of the hearing before Judge Zucker, was not in possession of all the relevant papers. There is no evidence to support a finding that Mrs Draper was or ought to have been aware, as a litigant in person, of the importance of obtaining a medical certificate in support of her application.
86. In all these circumstances, I consider that Judge Zucker was wrong to reject the evidence as to Mrs Draper's medical condition, at the very least in the absence of any cross-examination of Mrs Draper and her daughter seeking to challenge their evidence, which was contained in documents verified by statements of truth.
87. In the absence of any material upon which the court could rely to found some preliminary suspicion of untrustworthiness on the part of Mrs Draper and her daughter, and in the absence of cross-examination, there was no proper ground for the rejection of their evidence, simply on the basis of what was relied upon by the Judge in paragraph 9 of his judgment and what he had been told about the procedural background.
88. In my judgment, the Judge had not followed the approach of Lord Justice Mummery in the Brazil case. He had failed to take into account all the evidence before him.
89. It is to be noted, furthermore, that in the Thomson Directories case the application was rejected after cross-examination of the applicant on his evidence as to the reasons for his non-attendance.
90. Further, it is to be observed, as I have said, that Judge Zucker was proceeding on the basis that Mrs Draper had no reasonable prospect of success. This may have affected his view about the probable reasons for her non-attendance on 17 February 2002. Whether or not that is so, the fact that, as is now conceded, Mrs Draper has a reasonable prospect of success, and made her application promptly, made it even more critical, in terms of fairness and justice, that the totality of the evidence as to the grounds of non-attendance be viewed with care and that Mrs Draper be given a proper opportunity to answer any criticisms as to the cogency of the evidence presented by her, including the reasons for not obtaining a medical certificate. That would usually only be possible by cross-examination.
91. I must, nonetheless, emphasise that in the usual case a certificate by a medical practitioner will be critical evidence and, at the very least, highly desirable. My decision on this appeal, notwithstanding the absence of such evidence, turns on the particular facts of the present case.
92. Mr Clargo submitted that, even if Judge Zucker was wrong in relation to the grounds in rule 39.3(5)(b) and (c), nevertheless the appeal should be dismissed because, as Judge Zucker indicated in paragraph 11 of his judgment, he would, even so, have exercised his discretion against setting aside the Possession Order.
93. In my judgment, this is an impossible submission. The hypothesis at this point is that Mrs Draper applied promptly, had good reasons for not attending and has a reasonable prospect of success in the litigation. There could be no proper basis, in those circumstances, for denying her a right to a fair hearing on the merits. As I have said, it was impossible to contend before Judge Zucker, and it is impossible to contend before me, that there is indisputable evidence that Mrs Draper has behaved improperly generally in relation to the litigation or the attempts to achieve a resolution of the dispute between the parties.
94. Accordingly, I must set aside the order of Judge Zucker of 7 April 2003.
95. The question then is what I should direct as to the future progress of the proceedings. Mr Clargo submitted that I should return the matter to the County Court for a fresh hearing of the application to set aside the Possession Order.
96. That seems to me to be a waste of time and resources. My conclusion is that, on the information before Judge Zucker, and in the absence of cross-examination, he ought to have allowed the application. In those circumstances, the proper course is to set aside his order and direct that the Possession Order be set aside. That was, in effect, the course taken by Mr Justice Patten in London Borough of Lewisham v Gurbuz [2003] EWHC 2078 (Chy) (24/07/2003).

The second appeal

97. I can deal with this quite shortly.
98. Following the hearing on 17 and 18 February 2003 Mrs Draper applied for a stay of the warrant for possession pending appeal. That application succeeded, but Judge Zucker ordered Mrs Draper to pay St Ermin's costs.
99. Mr Clargo submits that such an order was well within the discretion of the Judge.
100. The basis of the exercise of that discretion appears from the transcript of what took place before Judge Zucker on that occasion. He took the view that the application for a stay of execution could have been made on 7 April 2003, when the matter was previously before him.
101. In my judgment, that order for costs ought to be set aside.
102. The starting point, as is well-known, is that the general order for costs is that the unsuccessful party will pay the costs of the successful party, but the court may make a different order if the facts support such a course: see CPR 44.3(2).
103. In the present case, St Ermin's knew or believed before the hearing of the application for a stay that Mrs Draper had applied to the Court of Appeal.
104. At the hearing on 28 April 2003 Mr Clargo, representing St Ermin's, conceded that, in those circumstances, a stay would be appropriate.
105. His only point was that it should be on terms that the disputed sum be paid into court within 14 days. That proposal was rejected.
106. Accordingly, St Ermin's costs could all have been avoided if St Ermin's had conceded the application and not attended the hearing of the application.
107. The submission, on behalf of St Ermin's, that, as a condition of a stay, Mrs Draper should pay into court all the money in dispute was, in my judgment, rejected by the Judge correctly. It would have stifled the appeal, since it was known that Mrs Draper had no capital money or savings to pay any such amount. It was unreasonable for St Ermin's to attend to argue for such a term.
108. In short, there were no grounds at all in the present case for ordering Mrs Draper to pay St Ermin's costs of the hearing of the stay application.
109. She does not seek an order for payment of her own costs.
110. Accordingly, for these reasons I allow the Second Appeal.