Harlow & Milner Ltd v Teasdale [2006] EWCA Civ 1002

Case No A1/2006/0717[2006] EWCA Civ 1002
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
(HIS HONOUR JUDGE COULSON)
Venue Royal Courts of JusticeDate Monday, 3 rd July 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE JONATHAN PARKER
Between
HARLOW & MILNER LIMITEDRespondent- v -
Between
LINDA TEASDALEAppellant
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANT APPEARED IN PERSON. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE JONATHAN PARKER:

[1]This is an application by Mrs Linda Teasdale, the defendant in the action, for permission to appeal against an order made on 15 March of this year by HHJ Coulson QC sitting in the Technology and Construction Court whereby he granted an application by Harlow and Milner Limited, the claimant in the action, to make final an interim Charging Order dated 20 February 2006. Mrs Teasdale appears in person but her husband has attended this morning and has addressed me and I am grateful to him for that.[2]The background to the application is briefly as follows. By a contract dated 27 May 2004, Harlow and Milner agreed with Mrs Teasdale to carry out building works at properties owned by her in Armley, Leeds. A dispute subsequently arose between them which was referred to an adjudicator, as provided by the contract. By his decision dated 19 May 2005 the adjudicator, Mr Alan Wood, awarded Harlow and Milner some £90,000 including interest to date. No part of that sum was paid. Harlow and Milner initially sought to enforce the adjudicator’s award not by commencing proceedings in the Technology and Construction Court but by issuing bankruptcy proceedings in the Bradford County Court based upon a statutory demand. Mrs Teasdale applied to set aside the statutory demand and on 1 December 2005 it was set aside by consent. It was, however, a term of the Consent Order that the costs of the bankruptcy proceedings be reserved to a judge of the Technology and Construction Court. The explanation for that is that Harlow and Milner had some two days earlier commenced enforcement proceedings in the Technology and Construction Court seeking summary judgment for the amount of the adjudicator’s award.[3]On 16 January 2006 the application for summary judgment together with the issue as to the costs of the aborted bankruptcy proceedings came before HHJ Coulson. By his order of that date he entered summary judgment for Harlow and Milner in the sum of some £95,000 including interest, and he made no order as to the costs of the aborted bankruptcy proceedings. Mrs Teasdale did not appear before the judge at that hearing nor was she represented. There was no appeal against the judge’s order, nor is there any application before me for permission to appeal against it out of time. Indeed, given the time that has elapsed since that order was made, it is difficult to see how such an application could succeed.[4]Mrs Teasdale failed to pay any part of the sum for which summary judgment had been granted and Harlow and Milner duly applied on paper for an interim Charging Order on Mrs Teasdale’s property. The application was granted by the judge on 20 February 2006 and an order was sealed and sent out by the Registry of the Technology and Construction Court that day. However the following day, the judge’s clerk apparently noticed that in error the order as drawn did not identify the property to which the Charging Order was to attach. The order was corrected accordingly, and on Friday 24 February a corrected version of the order was served on Mrs Teasdale’s solicitors.[5]However, since the corrected version of the order was not served until after 4.30 pm on that day, the deemed date of service on Mrs Teasdale was the following Monday, 27 February 2006. The corrected order, as had the original form of the order, gave notice that an application to make the Charging Order final would be made on 15 March 2006. In the event, given that the order was served on 27 February 2006, that notice was three working days short of the 21 days required by Civil Procedure Rules 73.5 paragraph 1. Harlow and Milner’s application to make the Charging Order final was duly heard by the judge on 15 March 2006, when he made the order against which Mrs Teasdale now seeks permission to appeal.[6]Harlow and Milner were represented by counsel before the judge, but once again Mrs Teasdale did not appear nor was she represented. However, by letter dated the previous day, 14 March 2006, Mrs Teasdale’s solicitors, Betesh Fox and Company, took two points in opposition to Harlow and Milner’s application. First they took the procedural point that short notice of the hearing had been given, that is to say three working days short. Second, on the merits they relied on the fact that there was, by then, an ongoing construction arbitration between the parties, contending that if the Charging Order were made final there would be a danger that that would effectively undermine the arbitration process.[7]The judge carefully considered both those points. He turned first to the solicitors’ point on the merits. He rejected that point. After referring to authority, he continued (in paragraph 6 of his judgment):
“The Defendant is not entitled to ignore the judgment of the court and to delay her payment to the Claimant in the hope that ‘something may turn up’. Her solicitor’s suggestion that the Charging Order should in some way be suspended, until the result of the arbitration is known, would wholly undermine the adjudication process. If it were right, it would mean that any party who was on the receiving end of an adjudicator’s decision could, if they wanted to avoid the result, commence arbitration proceedings against the successful party, and then argue that the adjudicator’s decision should abide the eventual outcome of that arbitration. It was precisely to avoid such delaying tactics that the statutory adjudication process was created in the first place.”
[8]The judge then turned to the procedural point, which he also rejected. He accepted the submission of counsel for Harlow and Milner that the instant case an appropriate case in which to abridge time by exercising the general case management powers in Civil Procedure Rules 3.1 paragraph 2. He pointed out that Mrs Teasdale had no proper ground on the facts for opposing the application to make the interim order final, and that no evidence had been provided by her that she had suffered any prejudice by reason of short notice. He concluded that the procedural point was a purely technical one, devoid of merit.[9]By her appellant’s notice, Mrs Teasdale seeks to invite the Court of Appeal to stay the order dated 15 March 2006 for 28 days, on the footing that this would enable the arbitrator to “carry out a full and proper investigation of the properties”. She also seeks to appeal against the earlier order made by the judge in respects of the costs of the aborted bankruptcy proceedings. She contends that instead of making no order as to those costs, the judge should have ordered Harlow and Milner to pay her costs of the bankruptcy proceedings.[10]I can deal straight away with the application in relation to the costs of the bankruptcy proceedings. As I have already said, there was no appeal from the judge’s order dated 16 January 2006, and there is no application before me for permission to appeal that order out of time. In any event, as I have said, it would appear that it is now far too late to seek to appeal it. In any event, in deciding to make no order in relation to the costs of the bankruptcy proceedings the judge was exercising his discretion, and there are no grounds on which the Court of Appeal might be persuaded to interfere with his decision as to those costs.[11]As to Mrs Teasdale’s reliance on the ongoing arbitration as a ground for a stay of the order dated 15 March this year, I can see no prospect of the Court of Appeal granting such a stay for the reasons given by the judge in paragraph 6 of his judgment, which I have read.[12]In her grounds of appeal, Mrs Teasdale has not sought to resurrect the procedural point which the judge rejected, but for completeness I should make it clear that there is no prospect of a successful appeal on that ground either. The judge was fully entitled to exercise his wide case management powers as he did. Indeed, I consider that he was plainly right to do so in the circumstances of this case.[13]In her grounds of appeal Mrs Teasdale does, however, seek to rely on alleged failures on the part of her solicitors to deliver a defence and counterclaim or to put in evidence on her behalf. She asks for a stay so that she can instruct new solicitors. But even if her criticisms of her solicitors were justified (and as I explained to Mr and Mrs Teasdale in the course of their submissions this morning, I can form no view at all about that) they would not provide her with a ground of appeal. The shortcomings of her solicitors, if indeed there were any, were not the fault of Harlow and Milner. If her solicitors were indeed negligent in any respect, as to which I express no view whatever, she has her own remedy against them.[14]For those reasons I conclude that the proposed appeal has no real prospect of success, nor can I discern any other compelling reason why the Court of Appeal should hear it. The application must accordingly be refused.[15]In the course of his helpful oral submissions Mr Teasdale told me that a sale of the property, the subject of the Charging Order, is imminent. As I explained to him, if permission to appeal were appropriate in this case then the question of a stay of that sale would arise. In the circumstances, however, and for the reasons I have given, I can see no basis upon which the application for permission to appeal should be allowed. It is accordingly dismissed, and no question of a stay arises.

Order

Application refused.