Black v Pastouna & Anor [2005] EWCA Civ 1389

Case No B2/2005/0335[2005] EWCA Civ 1389
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRKENHEAD COUNTY COURT
(HHJ PHIPPS)
Venue Royal Courts of JusticeDate Monday, 31st October 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE CARNWATH
Between
CHRISTINE BLACKAppellant-v-
Between
NADIA PASTOUNARespondentNATASHA PASTOUNARespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R HALL (instructed by 1 Law Solicitors) appeared for Appellant for THE RESPONDENTS DID NOT ATTEND AND WERE NOT REPRESENTED
J U D G M E N TMonday, 31st October 2005

LORD JUSTICE CARNWATH:

[1]This is a renewed application for permission to appeal, Jacob LJ having refused permission on the papers. The claim related to a property at 144 Irby Road in Pensby. The proposed appellant before us, Miss Black, had a relationship, as is admitted, with a wealthy man, Mr Pastouna. The other parties to the case before us are his daughters who are now the owners of the property.[2]The simple case for the Pastouna side is that Miss Black was party to an assured tenancy based on documents which she had signed, beginning in May 1997, and that having failed to maintain her payments, the Pastounas are entitled to possession.[3]Miss Black's case is rather more complicated. She said that in fact Mr Pastouna bought this property in early 1997, in principle for her, and that she contributed £20,000 to the purchase (that money being derived from a property that she had sold). The other £40,000 was contributed by him, but on some form of understanding that the property would eventually come to Miss Black. Her case was that the assured tenancy, which she had admittedly signed, was in fact a sham and the purpose of that arrangement, to which she apparently was a knowing party, was to secure Housing Benefit from the relevant council which would, in effect, service the money put up by Mr Pastouna.[4]There was a lack of documentary material. The judge, however, focused on two particular pieces of information. One was a letter written by a solicitor to Mr Pastouna in April 1997. The solicitor had apparently been consulted by Mr Pastouna about the possibility of contributing a sum of money in respect of the property. The solicitor advised him against what he was proposing to do and suggested that there should be a straightforward tenancy agreement at proper market rent and that Miss Black should purchase an option to buy the property at a price to be agreed. The judge thought that advice seemed to be consistent with the idea that there should be a tenancy agreement. No option to buy was agreed between them.[5]Perhaps more significantly, after the relationship between the two had apparently broken down, and after the property had been transferred to the daughters, a notice to quit was served because of failure to pay rent. There is a manuscript note signed by Miss Black to Mr Pastouna which appears to have been dated 14th October 2003. That is recording the fact that a sum of money of four figures was to be paid by the Housing Benefit office into Mr Pastouna's bank account. Miss Black is asking for that to be taken into account. The judge was struck by the fact that, if her account was correct and that she was in fact a substantial part owner of the property, that fact was not mentioned in the letter.[6]Mr Pastouna admitted having had the £20,000, but he said that he had been asked by Miss Black to hold it to protect her from a former partner who was apparently threatening her and that he had held it as an investment on her behalf, although over the years he had in fact paid back some £8,000 of it. She apparently admitted having had some of that money, but said that was in the nature of a gift.[7]It can be seen from that brief account that this was not an entirely straightforward story. As often happens when a relationship breaks down, the parties have not organised their affairs as clearly as they might. The judge, however, had to decide who was fundamentally telling the truth. He saw the witnesses and decided, for reasons which he explained, that Miss Black's story was not credible. The documents I have referred to certainly gave him considerable support for that. But he might, in my view, have made rather more of the fact that her account depended on her, in effect, saying that they were all parties to a criminal conspiracy to defraud the Housing Benefit office. In any event, it seems to me the judge's reasoning was entirely clear.[8]Mr Hall, however, says we should review that. He says that the judge should not deal with all the relevant evidence. In particular there were inconsistencies in Mr Pastouna's account which he failed to address adequately. For example, the judge did not mention that Miss Black's daughter gave evidence that she had overheard a conversation which seemed consistent with her story. However at the relevant time the daughter was aged 14 or 15 and it is very difficult to see how that would have made a major difference to the judge's view of the principal witnesses. There is also a neighbour, Ms Barton, who apparently was told by Miss Black of an account which was consistent with her story. But again that is no more than a straw in the wind since Ms Barton had no direct evidence of the fact.[9]Mr Hall mentions the point that there is documentary evidence relating to invoices and money which had been apparently spent on the property by Miss Black which he says is inconsistent with her being a mere assured tenant. But there is a dispute about who actually bore the cost of that. Again the judge has not mentioned it, but these again seem to be very much straws in the wind in relation to the substantial issue he had to decide.[10]In any event, looked at overall, it seems to me that it is quite impossible to expect this court, as an appellate court, to overturn the judge's findings, which were based on the evidence he heard from the principal witnesses as supported by the strands of the very inadequate documentary material.[11]Even if that was not a sufficient reason to refuse permission, for my part I would regard the fact that the proposed appellant's case depends on her being party to a conspiracy as a very strong factor against any suggestion that permission should be granted. I would refuse permission.

LORD JUSTICE BROOKE: I agree. I only wish to add one thing. This is a case in which the appellant is assisted from public funding in bringing this renewed application. Solicitor and counsel have come all the way from Liverpool for this 10.00am appointment. It could very easily have been conducted by video-conference between this court and Liverpool. The existence of a video-conferencing facility was announced in the last annual report of the Court of Appeal and the existence of the facility is also explained very clearly, with details of all the arrangements that need to be made, on the Court of Appeal website (www.civilappeals.gov.uk).

[13]In addition, the Practice Direction to CPR Part 32, although entitled "Practice Direction - Written Evidence", states that guidance on the use of video-conferencing in the civil courts is set out in Annex 3 to that practice direction. The guidance itself makes it clear (at para 1) that it applies to all cases where video-conferencing ("VCF") is used for parts of legal proceedings generally. This phrase includes applications to the Court of Appeal. The guidance also states:
"A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation."
[14]I would add that it is incumbent on those advising parties appearing before this, or any, court to take all the steps they can in accordance with CPR Rules 1.1 and 1.3 to reduce the cost of the proceedings. This includes taking advantage of such cost-saving facilities as video-conferencing whenever they are available and it is appropriate to use them.[15]In every case involving an application to the Court of Appeal which is likely to last half an hour or less, the Court will expect the parties or their advisers to apply these criteria when they consider whether the use of VCF would be desirable. If the Court is not satisfied that there are any features of the application which warrant an oral hearing with the applicant or his advisers present in court, it may direct that any recoverable costs may be limited to the cost of conducting the hearing by video conference, if these are likely to be less than the cost of attending court and any associated travel expenses.[16]On this occasion we will direct that the matter go to an assessment of funding, but I also direct that the costs judge who conducts the assessment should enquire what the comparative costs would have been of a video-conferencing appointment for half an hour from Liverpool, as compared with the costs which will be set out in the bill presented for assessment by the appellant's solicitors.[17]Since this matter raises a point of general importance this short judgment will be released from the usual restrictions on the citation of judgments on an application.

ORDER

application refused; matter to go for comparative costs assessment.