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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM Central London County Court
HHJ MITCHELL

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 March 2015

Mr Justice Supperstone :

Introduction

1. I will refer to Davis Solicitors LLP as the Claimant, and Fida Raja and Hande Riaz as the Defendants.
2. This is an appeal by the Claimant against the decision of HHJ Mitchell made at the Central London County Court on 1 August 2014 refusing the Claimant relief from sanctions, their appeal against the decision of Deputy District Judge Parker dated 13 December 2013, having been struck out on 31 March 2014, the Claimant having failed to comply with an 'unless' order of the court. Permission to appeal was granted by Knowles J on 18 December 2014.

The Factual Context

3. The Claimant is a firm of solicitors which practises from 34-36 High Street, Barkingside, Ilford, Essex. Ms Nancy Ballard, who appears for the Claimant, as she did below, is a sole practitioner in the firm.
4. The Defendants retained the Claimant with regard to the disrepair of a boiler at a property in respect of which they were co-tenants.
5. These proceedings relate to a claim made by the Claimant in respect of an unpaid invoice in the sum of £2,970 plus interest and costs. The Defendants defended the claim and counterclaim for damages for consequential losses incurred as a result of the alleged breach of duty and negligence of the Claimant. The counterclaim was resisted.
6. On 13 December 2013 Deputy District Judge Parker gave judgment, following a trial that had lasted one and a half days. The Claimant was ordered to pay to the Second Defendant £6,000 and to the Defendants the sum of £590 plus interest. In addition the Claimant was ordered to pay the Defendants' costs. The total sum to be paid by the Claimant to the Defendants pursuant to the judgment was the sum of £21,613.08 by 28 February 2014.
7. In his judgment DDJ Parker stated:

"It is difficult to conceive of a worse case in relation to poor service and a breach of the implied term in relation to reasonable skill and care.

The work undertaken by this Claimant has been shoddy, has failed to consider or make an assessment of the case as it developed, has failed to advise or have regard to the fact that the Defendants were not indigenous to England and their knowledge of the law and customs was challenging to them. Above all the Claimant has been negligent. I am satisfied to the requisite standard of proof."

8. The Claimant filed a Notice of Appeal seeking permission to appeal against the order of Deputy District Judge Parker.
9. On 11 February 2014 HHJ Wulwik, upon reading the Claimant's Notice of Appeal and a transcript of the judgment of DDJ Parker, ordered the Claimant to file a transcript of the hearing before the judge.
10. On 3 March 2014 Judge Wulwik ordered that:

"Unless the Claimant by 4pm on the 17^th March 2014 files and serves a skeleton argument in support of the Appeal and lodges an Appeal Bundle, the Appeal shall be struck out and the Stay of Execution imposed by paragraph 3 of the order of the 11^th February 2014 shall be discharged without further order."

11. On 31 March 2014 Judge Wulwik, upon reading a letter from the Defendants' solicitors dated 19 March 2014, the court file and noting the terms of the order he made on 3 March 2014, and that the Claimant on 17 March 2014 filed a skeleton argument but failed to lodge an Appeal Bundle as required by the order of 3 March 2014 or otherwise in accordance with CPR PD 52B.6, ordered that:

"Pursuant to the Order of the 3^rd March 2014 the Appeal is now struck out and the stay of execution imposed by paragraph 3 of the Order of the 11^th February 2014 is discharged."

12. On 2 April 2014 the Claimant wrote a letter for the attention of Judge Wulwik, having received a notice of his Order of 31 March 2014, stating:

"This is extremely unfair and concerning when the appeal bundle was filed with the Court on the 31^st December 2013. The bundle consisted of the full papers in the Trial bundles."

The Claimant requested discharge of the order of 31 March 2014 without need of a formal application for relief of sanction.

13. On 3 April 2014 Judge Wulwik, through HM Courts and Tribunals Service, responded as follows:

"(a) The Court has no record of receiving an Appeal Bundle on the 31^st December 2013.

(b) Civil Procedure Rules Practice Direction 52B.6 at 6.4 deals with the contents of an Appeal Bundle. If the bundle that the Claimant says it filed on the 31^st December 2013 consisted only of the papers in the original trial bundle, it would not have complied with CPR PD 52B.6 at 6.4;

(c) The Appellant's Notice was put before His Honour Judge Wulwik immediately following his return from annual leave in February 2014;

(d) The Claimant must make such application to the Court as they think fit."

14. On 7 April 2014 the Claimant made an application for relief from sanctions.
15. The application was heard by HHJ Mitchell in the Central London County Court on 1 August 2014 when he dismissed the application.
16. On 21 August 2014 the Claimant filed a notice of appeal from the decision of Judge Mitchell.

The Civil Procedure Rules

17. CPR rule 3.9 provides:

"Relief from sanctions

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence."

18. Practice Direction 53B – Appeals in the County Courts and High Court provides in Section 6 (Conduct of the appeal), so far as is material:

"6.3 Appeal bundle: As soon as practicable, but in any event within 35 days of the filing of appellants notice, the appellant must file an appeal bundle which must contain only those documents relevant to the appeal. The appeal bundle must be paginated and indexed.

6.4 Documents relevant to the appeal:

(1) Subject to any order made by the court, the following documents must be included in the appeal bundle—

(a) a copy of the appellant's notice;

(b) a copy of any respondent's notice;

(c) a copy of any appellant's or respondent's skeleton argument;

(d) a copy of the order under appeal:

(e) a copy of the order of the lower court granting or refusing permission to appeal together with a copy of the judge's reasons, if any, for granting or refusing permission;

(f) a copy of any order allocating the case to a track;

(g) a transcript of the judgment of the lower court or other record of reasons (expect in appeals in cases which were allocated to the small claims track and subject to any order of the court).

(2) The following documents should also be considered for inclusion in the appeal bundle but should be included only where relevant to the appeal—

(a) statements of case;

(b) application notices;

(c) other orders made in the case;

(d) a chronology of relevant events;

(e) witness statements made in support of any application made in the appellant's notice;

(f) other witness statements;

(g) any other documents which any party considers would assist the appeal court.

6.5 Service of the appeal bundle: A copy of the appeal bundle must be served on each respondent—

(a) where permission to appeal was granted by the lower court, at the same time as filing the appeal bundle;

(b) where the appeal court has granted permission to appeal, as soon as practicable after notification and in any event within 14 days of the grant of permission;

(c) where the appeal court directs that the application for permission to appeal is to be heard on the same occasion as the appeal, as soon as practicable and in any event within 14 days after notification of the hearing date."

19. In Denton v TH White Ltd [2014] EWCA Civ 906, the Master of the Rolls and Vos LJ, in a joint judgment, stated at paragraph 24:

"… A judge should address an application for relief from sanctions in three stages. The first stage is to indentify and assess the seriousness and significance of the 'failure to comply with any rule, practice direction or court order' which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate 'all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]' ".

The Decision of HHJ Mitchell

20. The judge noted that (1) the Claimant says that "she had already delivered the papers that were necessary for the appeal to the respondents, who do not seem to deny that is the case, but what they do say is, '…that they never received an appeal bundle. That is the case with the court'." (para 2); (2) Ms Ballard maintains that "she was not required by 6.5 to serve a bundle; not required by the rules" (para 3).
21. The judge referred to the fact that in early April 2014 by letter Judge Wulwik drew Ms Ballard's attention to the fact that there was no bundle at court as required by PD 52B, para 6.4. He said that the purpose of requiring a bundle "is to enable the court to pick up the case without having to rummage through the file and find individual documents" (para 3).
22. The judge noted that the application for relief from sanctions was made promptly and stated that if Ms Ballard had filed a bundle at that stage "it seems to me it would be likely that I would be granting relief from sanctions" (para 4). However

"the position is that no appellant's bundle was filed and it still has not been and the result is that the court is at a disadvantage. … this is not a trivial breach. It could have been remedied by filing an appellant bundle, with the application for relief from sanctions and I would almost certainly have granted relief. But the case has just wandered on without that having been done and I am being faced with having to rummage through the papers to try and makes sense of what is being said"(para 4).

23. In respect of the grounds of appeal from the decision of DDJ Parker, the judge said (at para 5):

"… although I could not form a definitive view because I have not had enough time, it seems to me it is highly dubious as to whether there are grounds of appeal at all. If there were substantive grounds, they seem to concentrate on the disrepair, whereas the judgement concentrates, to a large extent, on the professional conduct and in those circumstances, although it is not a matter for me, it does seem to me that I have to look at the merits of the appeal and they do not seem to me to be very strong."

Grounds of Appeal

24. A number of grounds of appeal were set out in the Notice of Appeal filed on 21 August 2014. However before me Ms Ballard limited herself to the grounds set out in a skeleton argument that she e-mailed to the court at about 1pm on 18 February 2015. In summary the grounds advanced in her oral submissions were that:

i) the breach was not significant;

ii) but for the Defendants' solicitor sending a letter dating 19 March 2014 to Judge Wulwik contending that the Claimant had not complied with his order, the judge would not have struck out the Claimant's appeal. The Defendants' action in this regard was "opportunistic" (per judgment in Denton at para 40);

iii) the judge erred in considering the merits of the appeal.

Discussion

25. Ms Ballard submits that the failure to file an appeal bundle was not a significant breach of CPR PD 52B because all relevant documents had been served on the Defendants and the Claimant had complied with all court orders in every other respect. There was, she submits, no prejudice to the Defendants because permission to appeal had not yet been granted and therefore there was no need for them to incur any costs.
26. I reject this submission. Paragraph 6.3 of PD 52B requires an appeal bundle, paginated and indexed, to be filed as soon as practicable, but in any event within 35 days of the filing of the Appellant's Notice, which in this case was by 4 February 2014. Paragraph 6.4 identifies the documents that must be included in the appeal bundle and the documents that should also be considered for inclusion. Not only did the Claimant fail to comply with the Practice Direction, but Ms Ballard ignored the 'unless' order of Judge Wulwik of 3 March 2014 relating to the lodging of an appeal bundle. She made no application to set aside the 'unless' order. It was only after the order of 31 March 2014 striking out the appeal that she wrote to the court. In fact, as Mr Dean, for the Defendants, observes it was not strictly necessary for the judge to make the order of 31 March 2014 as the Claimant's failure to lodge an appeal bundle by 4pm on 17 March 2014 would have resulted in the appeal being struck out without further order, pursuant to the terms of the order of 3 March 2014.
27. At various points in the appeal process Ms Ballard has attempted to explain why the default occurred. Mr Dean describes the reasons that she has given for the default as being "fluid". First she said in her statement dated 7 April 2014 in support of the Claimant's application for relief from sanctions that she had filed a bundle of documents used at the trial at the court on 31 December 2013 (para 7), and that skeleton arguments for the appeal were filed and served on the court and the Defendants' solicitors on 17 March 2014 (para 10). In her letter of 2 April 2014 she said that "the appeal bundle was filed with the court on the 31^st December 2013". The letter continued: "the bundle consisted of the full papers in the Trial bundles". At this point she was not accepting there was a breach of the Practice Direction.
28. Now her position is that whilst she considered it unnecessary to file an appeal bundle, she accepts that she was in breach of the Practice Direction. However she states that the reason she made no attempt to correct the breach or even to serve an appeal bundle before the hearing before Judge Mitchell was because she did not think that filing an appeal bundle would assist. She thought, she says, that what was important was to make an application for relief from sanctions as promptly as possible. She stated that she thought it was only necessary to have an appeal bundle once permission has been granted. She did not appear to appreciate the need for applications for permission to appeal to be presented in accordance with the rules so as to ensure the effective management of the appeal process at the permission stage.
29. At another point during the course of her oral submissions Ms Ballard said the reason she did not file the Appellant's bundle was because she did not have the sealed notice of appeal. She also said that there was nothing else to put into the agreed bundle which was required by the terms of paragraph 6.4 at the time.
30. Ms Ballard made the point before Judge Mitchell, in her grounds of appeal (para 9) and in her written submissions to this court (para 2), that the Claimant was not in breach of PD 52B 6.5. This is correct, however it illustrates her failure to appreciate the importance of complying with PD 52B 6.3 and 6.4. Even now Ms Ballard has produced an incomplete and not properly paginated "Appeal Bundle". I can well understand the difficulties that Judge Wulwik and Judge Mitchell must have encountered when dealing with this case in the absence of any appeal bundle.
31. I reject Ms Ballard's submission that the Defendants have, by their solicitors' letter of 19 March 2014, bringing to the court's attention the Claimant's breach of the Practice Direction, acted "opportunistically and unreasonably" (see Denton, para 40) because they had the trial bundles. As Mr Dean points out that letter was written after the 'unless' order was made on 3 March 2014 and after 17 March 2014 when the appeal had been, at least arguably, automatically struck out (see para 26 above). In any event the recitals to the Order of 31 March 2014 make clear that Judge Wulwik in making that Order did not rely on the letter from the Defendants' solicitors alone (para 11 above).
32. Judge Mitchell described the breach in this case as being "not a trivial breach" (para 4). In Denton the Master of the Rolls and Vos LJ stated (at para 26), that "it would be preferable if in future the focus of the inquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant". In the circumstances I have referred to I consider the breach in this case to be serious and significant.
33. Ms Ballard has explained why the default occurred. I do not consider any explanation she has given constitutes a good reason. She has put forward reasons for not complying with PD 52B 6.3 and 6.4 which indicate a continuing lack of understanding of the importance of the rules. The purpose of PD 52B 6.3 and 6.4 is clear. It is to assist the orderly conduct of appeals throughout the appeal process.
34. In considering "all the circumstances of the case" as Rule 3.9(1) requires the court to do, Judge Mitchell was entitled to have regard to the merits of the underlying appeal. Having read the judgment of DDJ Parker and the grounds of appeal, I consider that Judge Mitchell was plainly entitled to form the view that the merits of the appeal "do not seem to be very strong" (see para 23 above).
35. Judge Mitchell was also entitled in considering all the circumstances of the case to have regard to the fact, as he did, that even by the time of the hearing before him, more than five months after the date by which the appeal bundle should have been filed, the Claimant was in continuing breach of the Practice Direction. The fact is that Ms Ballard had deliberately decided not to comply with the Practice Direction and the 'unless' order because she considered that what she had done in terms of filing and serving documents for the appeal was sufficient.

Conclusion

36. For the reasons I have given this appeal is dismissed.