English and Welsh Courts - Miscellaneous

IN THE CANTERBURY COUNTY COURT

		The Law Courts Chaucer Road Canterbury Kent England CT1 1ZA
		13th January 2012

HIS HONOUR JUDGE SIMKISS:

1. This is a claim brought by the Claimant against Black Horse Limited for damages and other relief arising out of the alleged miss-selling to the Claimant of a PPI Policy in or around October 2003 in connection with a loan of nearly £5,000 in all.
2. The claim was issued on 10^th March 2011; a defence served on 7^th April 2011, which pleaded the Limitation Act and a reply which contends, as far as that allegation is concerned, that the date of knowledge, for the purposes of Section 14A of the Limitation Act 1980, was within the limitation period prior to the issue of the proceedings.
3. The allocation hearing in this case was dealt with by a telephone hearing in front of District Judge Burgess on 11^th October 2011. Each side put in lengthy skeleton arguments in relation to that hearing, which was hotly contested. In the result, District Judge Burgess allocated the case to the small claims track and, on 31^st October 2011, the Claimant issued an Appellant's Notice appealing that decision on the grounds that the case should have been allocated to the fast track by virtue of the complexity of facts and law involved, the circumstances of the parties and that the District Judge should also have had proper heed to the overriding objective, specifically that the parties should not be placed on an unequal footing by the Claimant not being legally represented.
4. The evidence of support in the Appeal explains that the claim includes a claim for damages under Section 140B of the Consumer Credit Act 1974, interest and costs arising from negligent representations made to the Claimant; breach of fiduciary duty, including an allegation that the Defendant acted as agent for the Claimant in arranging the sale of insurance; breach of FSA guidelines and an allegation that an unfair relationship arose between the parties within the meaning of Section 140A of the Consumer Credit Act 1974.
5. The limitation point is referred to as a matter giving rise to some complexity and possibly a preliminary issue. The matter came before Judge Hayward on paper for permission to appeal and he, in fact, went further than that and reallocated the case to the fast track, on the grounds that he considered that this matter was too complex to be dealt with as a small claim. The Respondents, having not been able to make any submissions to Judge Hayward and no written submissions at that stage, made an application for a re-hearing but, in fact, it was always clear that where an Order is made on paper, the parties are entitled an oral reconsideration and that is the matter that is before me today.
6. At the start of the hearing and having regard to the fact that this is a small claim in the sense of the amount at stake and the point in issue is a relatively straightforward issue of allocation, it would be disproportionate for me simply to deal with permission if I were minded to grant permission to appeal because that might then lead to a separate hearing and further considerable expense. I am happy to say that, having seen a copy of the draft judgment (for some reason only a transcript was provided of the argument and the post judgment argument and counsel only saw the transcript of the judgment in an unapproved state this morning when I gave them a copy) both counsel, having taken instructions from their Solicitors, have invited me to deal with this matter on the basis that it is an application for permission to appeal, which, if granted, would then immediately go into the appeal, which I would decide today. In accordance with my usual practice in these circumstances, I have heard full argument first and now come to set out my reasons for my decision.
7. The Appellant makes three points. Firstly, he says that the District Judge was wrong when she said that this case was clearly within the small claims limit. What District Judge Burgess says is this:

"The value of the claim is just in excess of £2,000 on the claim form and the initial documentation. Of course, the starting point is where a claim has a value of below £5,000, its starting point, in terms of allocation and the usual course of these matters is to be allocated to the small claims track in the absence of any good reason to do otherwise."

That statement of principle is impeccable and the claim form, which is completed in this regard for the purposes of allocation, specifies that the claim is in the range of £1,500 to £3,000 and costs. This is not a point which is in the forefront of Mr Bragg's arguments but he says that, because the Court might be entitled to Order compensation under the Consumer Regulations, this could conceivably take the matter above £5,000. I am not at all convinced with that argument. It seems to me that, even if compensation were Ordered, that it is highly unlikely that it would exceed an additional sum equivalent to the amount of premium and interest and that alone would not take it above £5,000. In any case, the claim form specifies the amount claimed for the purposes of allocation and the District Judge was correct.

8. The second point is that the District Judge has not given sufficient weight to the complexity of this case. At first blush, as no doubt Judge Hayward felt when he looked at the matter on paper, this appears to be an extremely complicated case. The Claimant is represented by Solicitors who have a funding arrangement and the Particulars of Claim run to sixty-two paragraphs. The Particulars allege that the Claimant was unaware that she did not have to take out the PPI policy when she took out the loan and, therefore, she claims a refund, damages for misrepresentation and negligence for failing to advise her that she did not have to take it out and various other allegations of negligence are raised. There is a further argument that there was a breach of the General Insurance Standards Council (GISC) Private Customer Code and an unfair relationship under Section 140A of the Consumer Credit Act 1974. The GISC is a voluntary code, which ceased to apply in 2005 when the Financial Services Authority issued a statutory code, which applied to the case of Gillies v Black Horse Ltd [2011] EW Misc 20, a case decided by His Honour Judge Kay QC in the Luton County Court.
9. The other point of complexity in this matter relied on by Mr Bragg for the Appellant is Section 140 of the Limitation Act 1980. Before dealing with this, I should refer to Judge Kay's decision. I do not have a transcript (although Black Horse are in the process of trying to obtain one) but I do have a detailed note taken by Black Horse's Solicitor, SCM Solicitors, which Mr Bragg has no objection to me considering. Judge Kay QC was dealing with an appeal from a Deputy District Judge in similar circumstances to the present, the Deputy District Judge having allocated the claim to the small claims track and the same firm of Solicitors acted for the Claimant in that case as in the present case. There were two points of distinction. Firstly, the GISC point did not arise because this loan was covered by the new regime and there was no argument that there was a potential breach of a statutory duty. Secondly in that case, limitation did not arise. There is a third point, which comes in connection with Mr Bragg's third ground of appeal, which is that there would be an inequality of arms if the Claimant did not have representation because this was allocated to the small claim and that point does not appear to have been argued in front of Judge Kay QC and Mr Bragg says that Judge Kay QC may well have come to a different conclusion had that point been raised. Judge Kay QC deals with the various points that are raised and, in particular, a point arising from the decision of Judge Waxman QC, sitting as a High Court Judge in the Manchester Mercantile Court in Harrison and Harrison v Black Horse Ltd and that point is raised in the original skeleton argument, which was Mr Bragg's prepared by Mr Walker counsel who acted in the telephone conference in front of District Judge Burgess about that point and that related to the amount of the commission but that point has now gone as the Court of Appeal has upheld Judge Waxman QC.
10. Judge Kay QC considers the issues in the case, which he acknowledges are, on the face of it, complex. He deals with the criteria for track allocation set out in CPR 26.8 and the Deputy District Judge's approach to them. He then considers Judge Waxman's guidance note, given at a complex case management conference of similar cases in the Manchester Mercantile Court in March 2010, where Judge Waxman says this:

"The next matter that I want to deal with is the appropriate venue for the trail of these very many claims, only some of which are being dealt with by me today. The broad consensus has been that the normal case will be allocated to the fast track and even if the judgment cannot be given within a day, it is thought that the evidence usually will occupy no more than a day. Most of the cases in these Courts will, therefore, be dealt with on that track. Cases with rather more substance or complexity (and there have been some examples today) will be allocated to the multi-track…"

He goes on:

"One of the purposes of the last hearing in this one and indeed the previous case management conference before His Honour Judge Holman, was to see whether it was possible to elicit discrete preliminary issues or test cases. That was not a proposal which attracted itself either to the Claimants or the Defendants generally, largely because it was thought that these cases are fact sensitive. I have taken the view, exercising my case management powers, that, although that is right, these are not always the simplest of cases and there are concepts, such as unfair relationship and the alleged breaches if highly specific rules under ICOB, where the facts as found then have to be analysed in those contexts. It was and remains my firm view that a few selected cases, whose decisions are given prominence and the status of a High Court decision, may well give austere or provide some guidance to those who are litigating the claims here and elsewhere."

I consider that the latter is an important statement. Whilst accepting Mr Ross' submission that in that case Judge Waxman QC, in saying that normally the starting point would be the fast track, was considering a balance between the fast track and multi-track and not as here a small claim, nevertheless, his reference to the issues that arise is an important one and the need for decisions at a higher level to determine matters such as the Harrison case.

11. Returning to the present case, Mr Bragg's submission is that the issue of limitation is an additional complexity, which should take it out of the small claim. I am not satisfied that that is the case. It seems to me that, in this case, the issue of limitation is a straightforward question of fact as to what the Claimant knew when; it is almost inconceivable that, if she has a case at all, that she had sufficient knowledge at the time she entered into the loan but at some point after that, she did ascertain facts which eventually led her to instruct Solicitors. The question that she will be asked is when she first became aware that something was wrong with the PPI Policy that she had taken out in the sense that she should have been given more advice or that she was misled, and that is a matter which is a straightforward issue of fact and while he might not be expected to ascertain the law for himself, it is a matter that the District Judge will be able to deal with.
12. The second matter is the GISC issue and, again, I am not satisfied that that adds sufficient complexity to distinguish this matter from the decision of Judge Kay QC in Gillies. In that case, the statutory regime had come into force and whether or not there is a breach is going to raise similar points. The only issue is the issue of law as to whether there was a cause of action. It obviously makes it slightly more complex but I agree with Judge Kay QC that the issues in this case of fact are knowledge and that is a matter which is suitable for a small claim.
13. This leads to the third point, which is that the equality of arms. I accept the evidence that, if this is treated as a small claim, then it is highly likely that the Solicitors will no longer be able to act and that the Claimant will have to bring this claim on his own and that does give rise to a potential inequality of arms because no doubt Black Horse will be using Solicitors to prepare these cases, whether or not a Solicitor is heard by the District Judge hearing the small claim. But, given that the issues in this case are relatively straight forward and more or less the same issues as arise in Gillies, it does not seem to me that there is any real justification that this point is a good one. The real question here is whether this is a case which should be allocated to the small claim or the fast track in order to enable there to be a fuller argument by legal representation of the issues that arise. That is an issue which the District Judge identified in her judgment when she said this:

"Essentially what the argument amounts to is that, in the event that this matter is allocated to the small claims track, is the complexity of this matter, in relation to the facts, law or evidence, going to be such that essentially the matter should be allocated elsewhere? Can this be dealt with within the ordinary small claims track? Is there anything which essentially takes it out of that? It is not a straightforward question to answer, however, on balance, what this matter turns upon is funding. It is as simple as that. It is said that, if this matter is allocated to the small claims track, the client will have to reconsider his position and the relationship with the Defendant will not be on an equal footing and there will be prejudice."

What she says in conclusion is:

"I take the view that essentially there is nothing in this case which takes it outside the ambit of the small claims track. There is nothing, given the particular facts of this matter rather than the general in relation to the claim that takes it out of the small claims track and there is nothing in relation to which the Claimant cannot be assisted by the Judge dealing with the matter at trial."

That shows that the District Judge has taken into account the various factors that arose and she was aware of Judge Waxman's decision in the Manchester PPI litigation, which I have referred to and was shown a copy of the judgment and both passages in that judgment were underlined in the copy that she was sent.

14. In these circumstances, I have to consider whether or not to give permission to appeal and whether or not to allow it. Dealing first with permission. To an extent, it is academic because I have heard full argument. Having heard full argument, it seems to me that this is clearly a case where permission should be given and, in a sense, Judge Hayward has already given permission since he then decided to allow the appeal, it is difficult to say that permission has not been given and it might have been appropriate for the Appellants simply to approach the other party and say "Well, permission has been given, let us just get on with the appeal", happily that is where we are at in any event. Under CPR 52.11(3):

"The appeal Court will allow an appeal where the decision of the lower Court was:

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower Court."

The issue here is whether the decision was wrong.

15. Mr Ross has referred me to the note at page 1663 in volume 1 of the 2011 White Book under 52.11.4 and the well-known passage in Tanfern Ltd v Cameron Macdonald [2001] WLR 1311, paragraph 32 in Brooke LJ's judgment:

"The appellate Court should only interfere where they consider that the Judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of appeal might or would have adopted but has exceeded the generous ambit within which a reasonable disagreement is possible."

And then in Phonographic Performance Ltd v AEI Redifussion Music Ltd [1999] 1 WLR 1507, at 1523:

"Before the Court can interfere it must be shown that the Judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should or should not have considered, or that his discretion was wholly wrong because the Court is forced to the conclusion that he has not balanced the various factors fairly in the scale."

16. For the reasons which I have already given, I am not satisfied that the District Judge has failed to deal with those matters. It seems to me that she has correctly set out the test; she has taken into account the matters; she has considered the issues that she should have considered; she has stated that she considered the point to be a difficult one and she has come to the conclusion that she has come to and it is not within my power to overturn a decision simply because I would, had I been dealing with it at first instance, have come to a different one. It is necessary for the Appellant to go further to persuade the Court that it is necessary to go further, taking into account those two passages I have referred to. I am not satisfied that the District Judge's decision was wrong. These matters are much more straightforward than they appear to be. Looking at the pleadings some of them have now been dealt with at a higher level or by Judge Waxman QC and the District Judge is well able to take those matters into account in guiding the litigant through the small claim and it is my experience of experienced District Judges that, in dealing with these cases which are the subject of significant numbers of claims, they become pretty experienced in the issues that arise and how to deal with them, and if something goes wrong then the litigant may appeal.
17. So, my conclusion is that the District Judge's decision should be upheld.

End of judgment