England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2006

Mr Justice Jack :

1. This is an application for permission to appeal by Mr Paul Arnold from a decision in an action brought against him by Tennero Limited. Both the facts underlying the action and the procedural history are complex. I will begin with the underlying facts, which I will take shortly, partly because they are so much in dispute.
2. Majorarch Limited was the developer of a block of flats at Eagle Wharf, Grosvenor Road, London SW1. There was a plan to make a profit by buying three of the flats 'off plan' and by re-selling them when the block was ready for occupation. They included a penthouse flat with a price of £4.44 million. Mr Arnold was involved with the plan. Most of the money was to come from Mr Ibrahim Mubarak, who is a connection of Mr Arnold. In a statement Mr Arnold describes himself as a business man and a bloodstock agent. It is the case of Tennero that he has dual nationality and residences in England and South Africa and possibly also in the United States. Mr Arnold has provided no information about himself other than as I have stated. He uses an accommodation address, namely a box at the offices of Fed Ex in the Old Brompton Road. Mr Humphrey Mainprice, a solicitor, was instructed by Mr Arnold to procure a vehicle for the scheme. Tennero was acquired as the purchaser from Majorarch. A second company incorporated in Mauritius, Cap Verde Holdings, was also acquired. This was probably intended to be the holding company of Tennero. Only one share in Tennero was issued, which was represented by a bearer share warrant. Mr Mainprice put up further money through a family trust. He apparently had and has possession of the bearer warrant. By that possession he claims that he is entitled to give instructions on behalf of Tennero. A dispute arose between Mr Arnold and Mr Mainprice as to who was entitled to act for Tennero. Mr Mainprice states that he held and holds the share for Cap Verde Holdings, but I do not know who he says is entitled to control that company, and so to whom he says that he is ultimately responsible. The scheme to make money from Eagle Wharf failed. There was litigation between Tennero and Majorarch in which Tennero sought to recover its deposits on the flats which it had agreed to purchase. Instructions were given on behalf of Tennero by Mr Mainprice. This culminated in a judgment of Newburger J delivered on 7 November 2003, [2003] EWHC 2601 (Ch). The precise financial consequence is unclear, but it appears unlikely that Tennero made any substantial recovery. In 2000 and 2001 Mr Arnold and an associate of his, Mr Dale, had been paid by Majorarch commissions of £18,000 and £42,000 in connection with Tennero's purchases. Mr Mainprice considered that these commissions were due to Tennero. He was prepared to give Mr Arnold credit for a loan of £8,000 which Mr Arnold had made to Tennero. That left £52,000 as allegedly due from Mr Arnold.
3. On 11 June 2002, on the instructions of Mr Mainprice, proceedings were issued on behalf of Tennero against Mr Arnold in the Chancery Division of the High Court. The action was later transferred to the Central London County Court. The subject matter of the action was essentially (1) the right to control Tennero and (2) the £52,000. Mr Arnold acted in person. The trial was fixed for 17 May 2004 with *an estimate of 3 days. On 1 May Mr Arnold flew to South Africa with a return flight booked for 10 May. While he was there, on 7 May he consulted Dr Christie Roux for treatment for his condition of high blood pressure and was advised not to travel in the immediate future. On that day he obtained a certificate from Dr Roux to that effect. He arranged for the certificate to be faxed by a company, Bloodstock SA, to a friend in London, Mr Egerton, with a message that he was unable to be in London on 17 May. Mr Egerton conveyed this in a letter faxed to the court on 12 May. On 17 May Mr Newman, counsel for Tennero, resisted any adjournment. His Honour Judge Cowell declined to adjourn the trial.
4. It is convenient next to refer to the relevant provisions of CPR 39. They deal with the power of the court to proceed with a trial in the absence of a party, and with the ability of such a party to have any resulting judgment set aside. They are at the centre of Mr Arnold's proposed appeal. CPR 39.3(1) provides that the court may proceed with a trial in the absence of a party but may also strike out proceedings, claims, defences and counterclaims. Thus CPR 39.3(1) states:

(1) The court may proceed with a trial in the absence of a party but -

(a) .... ;

(b) ....;and

(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

CPR 39.3(3), (4) and (5) provide:

(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 against him;

(b) had a good reason for not attending the trial; and

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

5. At the end of his judgment refusing to adjourn the trial Judge Cowell stated 'It seems to me, therefore, that this is a case in which the adjournment should be refused and the claimant can simply prove its case.' Judge Cowell then heard evidence on behalf of Tennero from Mr Mainprice and delivered a short judgment. In it the judge referred to Mr Mainprice's statement, which he impliedly accepted. He referred to a default judgment obtained against Mr Arnold, which had been set aside 'on the ground of non-service', saying that it showed that Mr Arnold knew how to operate the court's procedures. He mentioned Mr Arnold's omission to deal in his statement with Tennero's receipt of a letter. He referred to a cheque in the name of Mr Dale which was used to pay a dentist's bill saying that this increased his suspicions as to the bona fides of Mr hold's defence. He then stated 'So, in my judgment, the judgment that was obtained by default ought to be reinstated.' I do not understand why the judge adopted that course, and am uncertain how he would have had power to take it. It was to be expected that he would have delivered a judgment finding the case proved. There is no doubt, however, that he subsequently asked Mr Newman to draw up an appropriate order and that the order drawn up by Mr Newman and accepted by the judge was consistent with the success of Tennero at the trial rather than the reinstatement of a default judgment. Tennero wanted a judgment on the merits because that might be easier to enforce against Mr Arnold. That is why Mr Mainprice was called to give evidence rather than the judge being asked to strike out the defence. Tennero was taking the course referred to in paragraph 2.2(1) of the Practice Direction to CPR 39, namely, to 'prove [its] claim at trial and obtain judgment on [its] claim and for costs.' I think that the explanation can only be that following Judge Cowell's delivery of his judgment referring to the default judgment Mr Newman addressed the judge further and explained, or re-explained, what Tennero wanted. The outcome was the order. The first paragraph stated that Mr Arnold's application for an adjournment was refused. Damages were awarded against Mr Arnold in the sum of £52,000 with compound interest. An order for costs was made with a provision for £15,000 to be paid on account. The judge was not asked to deal with the issues relating to who was entitled to represent Tennero. I should therefore proceed on the basis that there was a trial at which the judge heard evidence, which he accepted, and that he was satisfied that damages should be awarded with compound interest as set out in the order. On that basis the reference by the judge to the reinstatement of the default judgment can be ignored. I should record that efforts have been made to obtain a transcript of the complete proceedings before Judge Cowell, but the tape has been lost. I do not know when the order drawn up by Mr Newman was issued by the County Court. The stamp on it is illegible. In his notice of appeal Mr Arnold states that Mr Newman drafted it on 25 May.
6. On the day of the trial, 17 May 2004, Mr Arnold booked a flight to return to England for 29 May. He arrived on 30 May and he received a copy of the order of 17 May on 31 May. I presume that he received it when he checked his mail box at Fed Ex. On 18 June 2004 he filed a notice of appeal to the Court of Appeal. The time for appealing was 14 days from the date of the order (not when it was drawn up : see the White Book at 52.4.2.) The notice asked for an extension of time. On the same day he made an affidavit of 21 pages answering the witness statement of Mr Mainprice dated 12 December 2003. It dealt with the merits of the claim against him. His notice of appeal stated that he relied on it. The facts set out in part C of the notice relating to the circumstances in which judgment was given against him were very brief. He made no witness statement as to that. On 21 June the Civil Appeals Office wrote to Mr Arnold saying that he should apply to the County Court to have the judgment set aside under CPR 39.3, and that the Office would retain the papers pending the outcome. Mr Arnold states that he did not receive the letter until 5 July. There seems to be no doubt that the Office did retain the papers. It could be understood that this was so, if Mr Arnold's application under CPR 39.3 failed, he could proceed with his appeal.
7. On 8 July 2004 Mr Arnold issued an application in the County Court to have the judgment of 17 May set aside. He made no statement in support of his application apart from what was stated in Part C of it. That included the following:

"I refer to the documents at page 89 et seq and in particular the document shown on page 90 [Dr Roux's certificate] to demonstrate that I was too ill to travel back for the hearing. I have been suffering from high blood pressure and was prescribed unsuitable medicine. As a result I was not only too ill to travel but my arrangements for representation were not completed."

The documents do not add anything to what I have previously stated.

8. The application was heard by His Honour Judge Levy Q.C. on 9 December 2004. Mr Arnold was represented by counsel, Dr Michael Arnheim, who had prepared written submissions dated 5 December. Judge Levy heard separate argument on the first two of the three matters which an applicant must establish to succeed under CPR 39.3(3) as provided by CPR 39.3(5). Mr Newman represented Tennero, as he did before me. He told me that it became clear during the course of the submissions that the judge was against Mr Arnold on the first two matters. The consequence was that he did not hear submissions on the third, namely the merits of Mr Arnold's defence. Judge Levy delivered a judgment holding that Mr Arnold had not had a good reason for not attending the trial, and he had not acted promptly when he found that judgment had been entered. Dr Arnheim asked for permission to appeal. That was refused.
9. It appears that Mr Arnold then went back to the Civil Appeals Office with the intention of pursuing his appeal against the order of Judge Cowell. When he appeared before me on 15 December 2005 Mr Arnold told me that the manager of the Office told him to forget about Judge Levy's order and to pursue his appeal against the order of Judge Cowell. Mr Arnold later' made a witness statement which included a paragraph to the same effect. It was submitted on behalf of Tennero that this could not have occurred because if Mr Arnold had shown the staff at the Office the order of Judge Levy he would have been directed to the High Court Appeals Office to pursue an appeal against that order. That would certainly have been the correct response if Judge Levy's order had been produced and Mr Arnold had wished to appeal against it. Dr Arnheim had asked Judge Levy for permission to appeal. I do not know what, if any advice he gave Mr Arnold in relation to an appeal. I would have expected Mr Arnold to discuss it with him. The straightforward advice would have been that Mr Arnold should appeal against the order of Judge Levy and that that was by appeal to the High Court and not to the Court of Appeal. On 10 January 2005 Mr Arnold made out a request form for a transcript of the proceedings before Judge Cowell, which was acknowledged on 27 January. A letter from the Civil Appeals Office dated 18 January 2005 stated that two copies of Mr Arnold's documents must be lodged no later than 31 January. By letter of 18 April he was given until 3 May to provide the transcript. The Office then wrote on 6 June to inform him that a Deputy Master had considered the papers and directed that the Court of Appeal had no jurisdiction in the matters because in view of Judge Cowell's reinstatement of the default judgment it was not a multi-track final matter. It seems that the basis of the Deputy Master's view was Judge Cowell's judgment rather than his order. The papers were returned to Mr Arnold by letter of 13 June. At this time Mr Arnold had instructed a law firm, Inlaw LLP, but it had not come onto the record. Inlaw LLP wrote to him on 27 July saying that they had obtained 'both judgment transcripts' and would 'now pursue the matter of the relevant court'. This probably refers to whether an appeal should be to the Court of Appeal or to the High Court, but it could refer to which court was to be appealed, that is, Judge Levy or Judge Cowell. A meeting the next week was suggested. On 29 July Mr Arnold filed a notice of appeal against Judge Cowell's order in the High Court. It was a copy of his notice filed in the Court of Appeal. On 24 August and 2 September 2005 Mr Arnold made further statements relating to the dispute about Tennero. On 15 December the application for permission to appeal came before me. Mr Arnold represented himself with the assistance of Mr Egerton. I ordered that the hearing should be adjourned to be listed on notice to Tennero, who should be represented. The application returned before me on 15 June 2006. Mr Arnold was represented by Mr Nick Parfitt of counsel, and Tennero by Mr Newman. I am grateful to them both for their assistance, which included a very full chronology prepared by Mr Newman.
10. The application is for permission to appeal from the order of Judge Cowell made on 17 May 2004 pursuant to the notice of appeal filed on 29 July 2005, and an extension of time for the filing of the notice is sought. As I read the Practice Direction to CPR 52 an appeal against the order 17 May 2004 would be to the Court of Appeal in so far as it was a final order, and to a single judge of the High Court in so far as it was not final. An appeal against the refusal to adjourn the trial would therefore be to a High Court judge, and is within my jurisdiction.
11. It was submitted to me by Mr Newman that it is an improper use of the appellate process to seek to appeal against the order of Judge Cowell rather than the order of Judge Levy. Put in general terms, he submitted that, where a judgment has been given in the absence of a party, the party who was absent should not seek to appeal against the judgment but should seek to have it set aside under CPR 39.3, which requires him to meet the requirements of CPR 39.3(5) which I have set out. That is the mechanism, he said, which the rules provide for dealing with the situation and is the procedural route which must be followed. To take the course which Mr Arnold had taken here was, he submitted, an abuse of the court's process.
12. On 17 May 2004 Judge Cowell first decided to treat the documents he had received sent on behalf of Mr Arnold as a request for an adjournment, and he made the decision to reject that request. That was the first decision which he made, and it finds form in the first paragraph of his order. Mr Parfitt submitted that Judge Cowell then made a second decision, namely a decision under CPR 39.3(1) to proceed in the absence of Mr Arnold. The judge did not made any such second decision expressly, and in my view a decision to proceed in Mr Arnold's absence was implicit in his decision not to adjourn, rather than being a separate decision. In any event the decision to proceed in the absence of Mr Arnold could not be the subject of an independent attack: it was only wrong if the judge was wrong to have refused an adjournment. The judge then went on to hear evidence and made the order for damages with compound interest. An appeal against that order would have to be on the ground that it was not an order which the judge was entitled to make on the basis of the evidence that he had heard. Here that would be a hopeless appeal. Mr Parfitt submitted that the judge should not have ordered compound interest. But on the evidence he was entitled to treat Mr Arnold as a fiduciary in relation to the commissions which he and Mr Dale received and to hold him accountable on that basis and order compound interest. Any appeal by Mr Arnold in respect of 17 May 2004 must be against the refusal to adjourn the trial.
13. In his supplemental written submissions Mr Newman submitted that Mr Arnold's appeal by his notice of 29 July 2005 was not an appeal against Judge Cowell's refusal to adjourn. Section 5 of the notice simply states that the appeal is against the order of 17 May 2004. It does not specify part only as being appealed. It is, however, clear from the grounds of appeal given in section 7 of the notice that Mr Arnold's complaint was that there should have been an adjournment. Mr Parfitt's first written submissions suggested in paragraphs 13 and 14 that the appeal was against the order of Judge Cowell reinstating the default judgment. But paragraphs 17 to 22 addressed the factual issues relating to the adjournment question and in paragraph 23 it was submitted that it was wrong for the court to refuse an adjournment. I do not have any difficulty in treating the appeal as an appeal against the refusal of an adjournment.
14. So the position in respect of the judgment following the trial is here no different to the position which commonly occurs where a defendant does not appear at a trial and the judge hears the claimant's evidence and gives judgment for him. An appeal against the judgment would usually be hopeless. Where a defendant was not in a position to apply for an adjournment, CPR 39.3 is needed to provide a remedy where a remedy is appropriate. For he will otherwise have none -unless the inherent jurisdiction of the court were to be relied on. A remedy will be appropriate where the defendant had a good reason for not attending and where he would have a reasonable prospect of success. He must also act promptly. Those are the three elements of CPR 39.3(5). A typical situation is where the defendant asserts that he had no knowledge of the trial date or was mistaken as to it. Then his only remedy is an application under the rule.
15. Where a defendant is in a position to assert in advance of a trial that he is unable to attend it, he may make an application to the court for an adjournment. That might be heard in advance of the trial. If it is refused, he can immediately file a notice of appeal against the decision. If the trial goes nonetheless ahead and he does not attend, can he proceed with his appeal against the refusal of an adjournment or must he proceed under CPR 39.3? He might appear to have a choice. But the application might be made at the trial, either by a written application as here or by the person's legal representative. Where it is made by his legal representative attending at court, the defendant has attended by his representative. It is doubtful if CPR 39.3 (3) would then apply. (Compare Murgai v Home Office [2003] EWHC 1870 (QB) where counsel appeared only to apply for an adjournment on behalf of the claimant. The application was refused. Counsel had no further role. The claim was struck out under CPR 3 9.3 (1)(b) and reinstatement was applied for under CPR 39.3(5) but ultimately refused on the ground that the claim lacked merit.) If it is right that where a defendant appears at the trial by counsel he is to be treated for the purpose of CPR 39.3 as attending, the defendant's only option in that situation is to appeal against the refusal of the adjournment. The appeal would probably be on the basis that the refusal of the adjournment deprived the court of the defendant's evidence, as it would be if the refusal had deprived the court of the evidence of any other important defence witness. It is where the defendant is not represented but gets a message to the court that he cannot attend and asks for an adjournment, that the options of appealing against the refusal of the adjournment and applying under CPR 39.3(3) arise. That was the situation here.
16. In the present unusual situation two questions arise: was it an abuse of the court's process to appeal against the refusal of an adjournment given the option of proceeding under CPR 39.3(3); was it an abuse of the court's process to proceed with that appeal having made an application under CPR 39.3(3)? If the answer to the second question is yes, the first question does not require an answer. In most situations where the defendant has applied under CPR 39.3(3) there will be no question of an appeal because he will not do both simultaneously, and by the time the application under the rule has failed he will be well out of time to appeal the original decision to refuse him an adjournment.
17. I have found it a difficult question, but I have concluded that it is an abuse of the court's procedures for a defendant to appeal against the refusal of an adjournment in a situation where he also has the opportunity to apply under CPR 39.3(3). I think that it is the better view that he does not have a choice because a specific provision of the rules, CPR 39.3(5), provides for an appropriate course of action in the circumstances: that should override the general right of appeal. Further CPR 39.3(5) enables the court to reconsider the question whether the party has a good reason for not attending with him present and having had the opportunity to put in further evidence. To appeal the decision to adjourn could be a way of side-stepping that process, a process which the Rules Committee has considered appropriate. I bear in mind that in Murgai Owen J. stated in paragraph 17: '…a Notice of Appeal against the order was lodged on his behalf with the Civil Appeals Office. The notice was apparently prepared for him by the RCJ Advice Bureau. He subsequently learned that the proper course was to apply to … restore the action under CPR 39.3, and made the appropriate application on 23 October.' This accords with my conclusion, but as Owen J. did not have to consider the issue, I do not think I can derive much support from the passage.
18. On the other hand, if the defendant does apply under CPR.39.3(5), he has then made a choice of remedy. In my judgment it is then clearly an abuse of the court's process to seek to revive an appeal against the original decision in an attempt to avoid, to side step, his failure under CPR 39.3(5). It would clearly be an abuse to proceed with both at the same time. It must equally be an abuse to pursue one, and having failed, to revive the other. So I conclude that as Mr Arnold applied to have the judgment set aside and failed before Judge Levy, it is on any view an abuse of the court's procedure to seek to pursue his appeal against the order of Judge Cowell. The proper route course was for him to appeal against the order of Judge Levy.
19. Mr Parfitt referred me to the decision of the Court of Appeal under 'the rules as they then were in re Edward's Will Trusts [1982] Ch 30. The issue was the right to a strip of land. The defendant who had filed no evidence was only informed of the hearing the evening before and decided not to make the journey to London. It was held by the Court of Appeal that it could hear the appeal on its merits, that is whether the judge's order in respect of the land was correct, but that the applicant could also apply to the court which tried the action for a new trial on the ground of his non-attendance. The court considered the evidence, which was mainly that filed on behalf of the plaintiff which had been before the judge, but also included an affidavit by the defendant, and concluded that the judge's decision had been correct. In the course of his judgment Buckley LJ stated at page 40:

"The proper course for the defendant to have adopted would have been to apply to Sir Robert Megarry V.-C under R.S.C. 3 5 r.2 for a new trial and for any necessary extension of the time limit under that rule; but this court is not without jurisdiction to order a new trial on hearing this appeal. It does not seem to me that any useful purpose would be served in the present case by requiring the defendant to make an application …. I think we should decide the matter here."

So the court took a practical course. There had been no request for an adjournment in that case, and so the decision is of very limited assistance. It does demonstrate that unusually a defendant may be able to mount an appeal against the merits of a decision made in his absence.

20. Mr Arnold has never appealed against the decision of Judge Levy, although permission to appeal was sought from, and refused by, the judge. Mr Parfitt suggested that I should treat the appeal from Judge Cowell as including an appeal from Judge Levy. I do not see any basis on which I could do that. If it were appropriate I could grant permission to appeal against Judge Levy's order out of time and a notice of appeal could be filed. But I was not asked to do that. I should mention that on 15 December 2005 I suggested to Mr Arnold that his appeal should perhaps be against the order of Judge Levy (page 3 of the transcript). Mr Arnold had counsel at the time of Judge Levy's order. He had Inlaw LLP to advise him subsequently. He does not seem to be somebody who cannot afford proper advice. But he has preferred to act, as he tells me, on what court staff tell him. I have my doubts as to whether he can have been advised as he says, or at least whether that advice was given on the basis of the full facts. So Mr Arnold has had from 9 December 2004 to deal with the problem, but has taken no steps to do so. I consider that it is too late now for him to say that I should consider an appeal from the order of Judge Levy.
21. Nonetheless, because I was addressed at length on the merits of Judge Levy's decision, I will consider that decision on the basis of a potential appeal from it.
22. CPR 52.1 1 provides that an appeal will ordinarily be limited to a review of the decision of the lower court. I was not asked to hold a re-hearing. So I have to approach Judge Levy's decision on the basis of a review. I was not invited to take account of any evidence which was not before Judge Levy. I have in mind what was said about review and rehearing in E.I. du Pont Nemours & Co v S T du Pont [2003] EWCA Civ 1368, quoted in the White Book 2006, at page 1534.
23. In his judgment Judge Levy recited the facts relating to Mr Arnold's request for an adjournment and what happened thereafter up to Mr Arnold's application under CPR 39.3(5). He referred to his appeal to the Court of Appeal. He referred to the failure of Mr Arnold to obtain a transcript of the judgment of Judge Cowell, which the judge did not have. He said in respect of Mr Arnold's non-receipt of the Civil Appeals Office's letter of 21 June until 5 July that if Mr Arnold chose to use an accommodation address he could not complain if he did not collect his mail expeditiously. I deduce that he asked Dr Arnheim about that delay and was provided with the accommodation address by way of explanation. He referred to Mr Newman's submissions that it was for Mr Arnold to find out promptly what had happened at the hearing on 17 May which he had not attended, that as 'a man of affairs' he should have taken advice as to the correct procedure, and that he had failed to act promptly in respect of the Court of Appeal's letter. He held that Mr Arnold had not acted promptly and the first requirement of the rule was not satisfied. In his extempore judgement he did not further identify where he thought Mr Arnold had failed.
24. The rule provides that the applicant must have acted promptly 'when he found out that the court had exercised its power . . .'. It does not say 'when he might reasonably have found out', or 'should have found out'. If, as it appears he did, Judge Levy took account of delay in finding out that judgment had been given, that is something which was outside the provision of the rule. The delays were thus the delay caused by proceeding with his appeal to the Court of Appeal, that it was 18 days before he initiated that appeal 'as opposed to the 14 days allowed by the CPR, and the delay between the apparent date of arrival of the Civil Appeals Office's letter of 21 June at Fed Ex and 8 July when the application was filed.
25. In exercising its jurisdiction under CPR 39.3(5) the Court must have its eye on the justice of the situation. I wholly accept that to succeed an applicant must establish his case in respect of each of the points contained in the rule and that the court has no residual discretion. That is well established: Barclays Bank v Ellis [2001] CP Rep 50, paragraph 13, Regency Rolls Limited v Carnall [2000] EWCA Civ 279, paragraph 44. However, the requirement for prompt action should not be construed in a draconian way to shut out a defendant with a reasonable, perhaps excellent, prospect of success at trial: per Simon Brown LJ in the latter case at paragraph 45. If Judge Levy's decision had rested on this requirement alone, I would feel some unease. I need not say more because it did not. _,
26. In concluding that Mr Arnold had not established that he had a good reason for not attending the trial Judge Levy referred to Mr Newman's submissions that Dr Roux's certificate was inadequate in that it did not say when the diagnosis had first been made, it did not say when Mr Arnold was next to be examined and gave no prognosis and it was dated 10 days before the hearing, while Mr Arnold was able to book a flight to London on the day of the trial for 12 days later. In my view the situation cried out for further explanation in support of the application. Thus: what was Mr Arnold's state of health when he went to South Africa; what was his treatment; how quickly did it take effect; when did he see Dr Roux again; when was he fit to travel; why did he communicate only through Mr Egerton? All of that required to be answered to show that Mr Arnold was not taking advantage of a temporary rise in his blood pressure to avoid attending at the trial and so to put off the trial. Mr Arnold was represented by counsel before Judge Levy. No attempt was made to adduce further evidence before him. Mr Arnold was present. No attempt -which might or might not have succeeded, was made to call him. I conclude that Judge Levy was justified in his conclusion that Mr Arnold had not established that he had a good reason for not attending the trial. I do not consider that an appeal against Judge Levy's decision would have had a real prospect of success.
27. I will next consider the position as to an appeal from Judge Cowell's decision on the basis that, contrary to my view, it is still open to Mr Arnold to pursue that appeal with its associated applications for permission and an extension of time.
28. In the course of his judgment refusing an adjournment Judge Cowell stated:

"I treat that as an application to adjourn. I gather Mr Arnold is a very astute businessman. I regard a man who uses high blood pressure as an excuse not to turn up to court as being barely honest, and I think he is just assuming that he will be given an adjournment and that he has simply not turned up to court because it does not suit him at the moment. He asked for an adjournment in December 2003 on the basis that he thought the matter should go to mediation. The adjournment was granted, since the court encourages mediation. But having received a few documents, he wrote in January saying that he did not want mediation, having seen what had been disclosed. So mediation got nowhere, and at about the same time today's trial dates of today, tomorrow and Wednesday were listed. So he has known about it for many months. I do not know precisely when he went to South Africa, but he is not here. He has dual English and American nationality and is not resident in the United Kingdom, so his connection with this country is not particularly clear. He is clearly playing about with the court and with the claimant. I treat it as an application to adjourn.

Judge Cowell then reviewed the merits of Tennero's case, suggesting that they were adverse to Mr Arnold. He also referred to the security for costs which Tennero had been required to provide. Judge Cowell should not have stated that to use blood pressure as a reason for not attending court was barely honest. High blood pressure could be a very valid reason. On the other hand high blood pressure among older people is not an uncommon condition. It can often be controlled by medication. The certificate of Dr Roux was dated 10 days before the trial and was quite brief. Mr Arnold could easily have been fit to attend the trial consistently with it. The manner in which it came before the court did not inspire confidence in Mr Arnold. There was no more up-to-date communication from Mr Arnold, nor did he get in touch with the court himself. It was to be expected that there would have been such contact - and Mr Arnold's re-arranging his flight shows that in fact he was capable of it. After some hesitation I have concluded that on the material before him it was open to Judge Cowell to be unconvinced by Dr Roux's certificate that an adjournment was appropriate. Despite his unsuitable language, that was essentially the decision that he reached. If he had misread the situation, that was not the end of the matter: Mr Arnold could apply under CPR 39.3. In the light of that it was open to him to take a firmer line than if Mr Arnold would have had no redress. Accordingly, if I had faced a straight application for permission to appeal from the order of Judge Cowell with no complications I would have granted permission to appeal but dismissed the appeal. I would have granted permission because I consider that the way the judge expressed himself in his judgment would have given the appeal a real prospect of success.

29. The ground on which Mr Arnold's appeal must fail is his pursuit of his appeal against Judge Cowell's order rather than appealing that of Judge Levy. An appeal against Judge Levy's order would have had really no chance of success. An appeal against Judge's Cowell's order would have failed. In my judgment the course he took was clearly the wrong course, and permission to appeal should be refused.
30. I should mention one further matter. I have referred to Mr Arnold's use of an accommodation address, namely a mail box at Fed Ex. That is also the address he has used on court documents. The Practice Direction to CPR 32 states in paragraph 18.1 that a witness statement should state :

(1) the full name of the witness

(2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer.'

This was not complied with.