Sweetman v Shepherd & Ors [2008] EWCA Civ 344

Case No A2/2007/0410Case No A2/2007/0411Case No A2/2007/0412[2008] EWCA Civ 344
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE IRWIN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 5 th March 2008
Before
LORD JUSTICE PILLLORD JUSTICE MAURICE KAY
Between
SWEETMANAppellantSHEPHERD & ORSRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr S Woolf (instructed by Messrs Lawrence Sternberg & Co) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is an application for permission to appeal. It is made by Mr Keith Ivan Eugene Sweetman. It is a renewed application, permission having been refused on a consideration of the papers on 5 September 2007. The application was set down for oral hearing before two lord justices. On 14 December 2007 Pumfrey LJ was sitting with me. It became obvious at an early stage that counsel appearing on the application was unaware of a very detailed skeleton argument in support of grounds of appeal which had been prepared by Mr Pymont QC and runs to 40 pages. That had not been supplied to Mr Steven Woolf, who appeared on the 12 December, as he does today, by his client, and clearly Mr Woolf needed an opportunity to consider its contents and decide which points were, on such further consideration, worth pursuing. Mr Pymont had appeared at the trial of the action before Irwin J, who gave judgment on 2 February 2007 following a two-day hearing in December and a further day in early January. The court adjourned the application directing that it be heard by two lord justices “one of whom to be Pumfrey LJ”. Sadly the untimely death of Pumfrey LJ has meant that the order cannot be carried out and I am hearing this application with Maurice Kay LJ.[2]Mr Woolf realistically accepts that the judgment of Irwin J is full and comprehensive. He heard three claims by Mr Sweetman, which have been described as the Shepherds Action, the Nathans Action and the Lawyers Action, an action by Mr Sweetman against solicitors acting for him. The learned judge set out in considerable detail the background history which is lengthy and involved a consideration of a “factual matrix”, as Mr Woolf puts it, in 1991, the first actions having commenced in 1997. Irwin J decided to strike out the actions. He found that the delay was such that there could not be a fair trial. In his helpful submissions Mr Woolf has realistically accepted that points which had been raised in the grounds of appeal about the applicant’s lack of funds and his solicitor’s lack of resources and the claimant’s personal difficulties could not realistically be pursued and I fully agree with his decision not to develop those grounds which were, with respect, hopeless.[3]What Mr Woolf has concentrated on are grounds set out at paragraph 7 of the Grounds of Appeal, which are considered by Mr Pymont in his very full skeleton argument. Of those Mr Woolf has pursued only three points. He has referred us to the judge’s conclusions, which are set out at paragraphs 158 to 164 of the judgment. The points taken are that the judge has erred in law in his approach to the relevance of delay. The judge has found that it would be necessary to “take the attendance list to 20 people and perhaps more than 30”. Having regard to the documentary evidence available, that is not an accurate assessment.[4]Before considering the judge’s conclusions in more detail it is necessary to go back to his earlier findings to some extent. In doing so I draw attention to the care with which the judge has analysed the evidence and the clarity with which he has set out his reasoning. At paragraph 132, when assessing the conduct of the claimant under the heading “Delays,” the judge stated: Thirdly the claimant has in my judgment demonstrated a consistent pattern through all these cases. His failures and delays are repeated over and over again. In my view he has been toying with the opponents and consciously manipulating the system.” There was not an abuse application before the judge but that summarised his view of the manner in which the claimant’s cases had been conducted. A general conclusion under the heading “Delay” is set out at paragraph 138:
“Impecuniosity has not been the true reason for his delays. In my view he has seeking to keep these cases alive in case something comes of them rather than seeking genuinely to pursue them to a conclusion.”
[5]The judge’s findings and the submissions on behalf of the applicant must be considered in the light of those findings and that analysis. Mr Woolf has rightly referred to paragraph 161. I do not propose to read it in full. I have referred to his submission that the availability of documentary evidence was such that a fair trial is still possible about the events including those back to especially in 1991. Further submission is made that one of the defendants, Mr Nathan, in the Nathans action of course, is a convicted fraudster and has served a prison sentence so that the range of factual enquiry necessarily would be limited. He submits that it is not realistic to think that 20 or 30 people would be contactable and prepared to give evidence in these matters, having regard to their own conduct and the passage of time. That, of course, is a double-edged question. The adducing of oral evidence inevitably becomes more difficult with the passage of time.[6]It is submitted that the admissions made by the applicant in his reply limit the scope of the factual enquiry necessary. It is submitted that in the Lawyers Action no oral evidence would be required and this, it is submitted, could be decided substantially on the documents. The judge has put it too high, submits Mr Woolf in his general conclusion. The judge did, at paragraph 163, mention the conduct, “amounting to an abuse of the court’s process” and states the general conclusion at the end of paragraph 161:
“The consequence is there is a strong likelihood that a fair trial on each action is now impossible.”
The judge then referred to the prospective timetable which would inevitably involve a substantial further passage of time.[7]I have considered those submissions. Though persuasively presented, they do not in my judgment create a situation in which I am able to say that there is a real prospect that the court would overrule the decision of Irwin J and allow the action to proceed. The matter has been carefully considered on paper by Hughes LJ. He has given full reasons for his refusal. I agree with those reasons. I do not find it necessary to set them out again. His general conclusion was that the judge’s conclusions upon delay “betrayed no error of principle”. I agree with that.[8]This was a careful judgment. The circumstances required such a judgment. The applicant had the appropriate careful and conscientious hearing. I see no real prospect that the conclusions of the judge would be reversed. For those reasons I would refuse permission to appeal.[9]I agree and do not wish to add anything except to record my tribute to the clarity and thoroughness of the judgment of Irwin J.

Order

Application refused.