Lemas & Anor v Williams [2009] EWCA Civ 360

[2009] EWCA Civ 360Case No B5/2007/2365
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
His Honour Judge Hornby
Claim Nos: 6BO01973; 6BO02019; 6BO053728
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/04/2009
Before
LORD JUSTICE MUMMERYLORD JUSTICE RIMERLORD JUSTICE SULLIVAN
Between
(1) RODERICK LEMASAppellants(2) GEORGE SEALYAppellantWINSTON WILLIAMSRespondent
Mr Anthony Allston (instructed by direct access) for AppellantsMr Abdul Gofur (instructed by Coldham Shield & Mace) for RespondentHearing Hearing date: 23 January 2009
Judgment

Introduction

[1]Two applications for permission to appeal are before the court. They are by Roderick Lemas and George Sealy, two of four defendants whom the claimant/respondent, Winston Williams, sued in Bow County Court for possession of a house at 26 Purleigh Avenue, Woodford Bridge, Essex (‘the house’). The other two defendants were Darren Lewis and Marvin Clarke. The order challenged is one dated 16 August 2007 by which His Honour Judge Hornby ordered possession and made costs orders against all defendants.[2]Mr Lemas seeks to appeal on the ground that the house is an asset of a settlement created by Mr Williams of which he and Mr Sealy are trustees; and that he was lawfully permitted by the trustees (or at least by Mr Sealy) to occupy it, as were Mr Lewis and Mr Clarke. Mr Sealy seeks to appeal on the ground that he was never served with the proceedings, wrongly ordered to give possession (as he was never in possession) and wrongly ordered to pay costs. Neither Mr Lewis nor Mr Clarke took part in the proceedings and both were debarred from defending them.[3]The trial was difficult because whilst Mr Williams (who had previously acted in person) had the benefit of representation by Mr Abdul Gofur, as he did before us, Mr Lemas acted in person. It is apparent that he did not present his case to its best advantage. That was because he refused to give evidence despite the judge’s encouragement to him to do so and his explanation of the disadvantage to Mr Lemas if he did not. Mr Sealy took no part in the trial.[4]The original grounds of appeal were unimpressive and Mummery LJ refused permission to appeal on the papers. The applicants then had the wisdom to retain Mr David Altaras, who represented them on an oral renewal of their permission application that also came before Mummery LJ. Mr Altaras persuaded him that there might be something in the proposed appeals, Mummery LJ permitted Mr Altaras to produce new grounds in place of the old and adjourned the applications to the full court, with the appeals to follow if permission were to be granted. On the adjourned applications, the applicants were represented by Mr Anthony Allston. Both applicants not only need permission to appeal but also extensions of time for doing so. The order was made on 16 August 2007, whereas Mr Lemas’s appellant’s notice was not filed until 17 October 2007, over five weeks late; and Mr Sealy’s appellant’s notice was not filed until 15 January 2008, over four months late.[5]I will first set out the story by reference to the judge’s findings and to what the documents appear to show, although not all the documents can be taken at face value. Many that I will mention were not referred to by the judge and may not have been in evidence. Mr Gofur told us that the original trial bundles are not available, and suggested that this may be connected with the fact that the solicitors who instructed him at the trial have since been the subject of a Law Society intervention. Having summarised the story, I will explain the course of the proceedings and the judge’s judgment and will then come to the arguments and my conclusions.

The story

[6]Mr and Mrs Lemas were originally the joint registered proprietors of the house. They had owned it since 1989. A restriction on the title suggested that the beneficial title was owned otherwise than by them as joint tenants and there is no evidence as to how it was owned. The house was charged to Abbey National Plc (‘Abbey’) to secure a loan enabling them to buy. Mr Lemas got into financial difficulties and was adjudicated bankrupt. By September 2001 they had negotiated a sale of the house to Mr Sealy. It is unclear how Mr Lemas’s status enabled him to participate in that or what his trustee’s attitude to it was. The case prompts a concern that Mr Lemas was anxious that the trustee should not look to the house or its proceeds for the benefit of his creditors. All we know of the bankruptcy is that the trustee vacated office on 5 March 2008 following the final meeting of creditors on 29 February 2008.[7]Contracts for a sale to Mr Sealy were eventually exchanged on 2 May 2002 at a price of £127,000. Title difficulties were presented by two cautions that had been registered. Completion was to take place within seven days of the production of evidence of their removal, with a target date of 1 July 2002. If they were not removed by then, either side could rescind the contract.[8]On 14 May 2002 Abbey took possession of the house. On 28 May it wrote to Mr and Mrs Lemas’s solicitors saying that the sale to Mr Sealy could proceed at £127,000 provided the mortgage account was redeemed out of the proceeds. The sale did not, however, complete and on 15 July Abbey wrote to Mr Lemas telling him that it had placed the house on the market at an asking price of £196,950. It asked him to remove all the furniture and other effects. That price suggests that the proposed sale to Mr Sealy had been at an undervalue.[9]Mr Williams entered the scene in the latter part of 2002, when he met Mr and Mrs Lemas. He had learnt from Mr Lemas’s mother that they were in financial difficulty and that Abbey was proposing to sell the house. He met Mr Lemas there. He said he would see if he could borrow some money to prevent its sale by Abbey.

The judge summarised Mr Williams’s account as being that:

‘7. … he signed an agreement with Mr Lemas’ wife, that if he loaned a certain sum of money to Mrs Lemas, which would prevent the property from being re-possessed by the Abbey, that he would be given a 30 per cent interest in the property, or an increase in the valuation. 8. He said that in due course he provided the sum of £30,000, and that was given to Mrs Lemas, and she was able to pay off the Abbey National. A legal charge was placed on the property….’
[10]The charge is dated 24 October 2002. It was signed by Mrs Lemas and Mr Williams and purports to record a loan of £60,000. That figure was incorrect. On 22 November 2002 Mr Williams made a statutory declaration in support of a caution he lodged as protection for his charge (it was registered on 2 December 2002) in which he said:
‘I loaned Ms Lemas £60,000 to pay on her mortgage to Abbey National to prevent her property from being sold. This was for the purpose of recovering her home. I therefore have an interest in the property of £60,000. I paid £20,000 prior to the 24.10.02 and the other £30,000 I paid on the 24.10.02 at an Abbey National Branch in Chingford. I also have £10,000 which I wanted to pay in on the 24.10.02 but the building society limited the amount I could pay in at the time. I am still holding this sum for further payment.’
[11]That suggested that he had lent only £50,000 to Mrs Lemas. On 28 April 2005 he made a statutory declaration saying he had lent her only £30,000, all of which had since been repaid by monthly payments, the last on 28 April 2005: he said he had intended to lend her more but did not. His evidence to the judge was at least consistent with that declaration. But evidence he had earlier given to His Honour Judge Roberts on 4 June 2007 was to the effect that he had in fact been repaid only about £22,000, out of the rents of a property owned by Mr or Mrs Lemas at 1107 Newham Way he had rented for them.[12]The judge’s account moved to 2005, when Mr and Mrs Lemas agreed to sell the house to Mr Williams for £250,000. Mr Williams’s evidence was that he understood that he was buying the house from Mrs Lemas and her mother and that Mr Lemas had no continuing interest in it. The judge found that there was a proposal that Mr Williams and Mr Lemas might run the house as a residential home; there was a prospect that if Mr Lemas made a useful contribution to that venture, he might earn some income from it.[13]Mr Williams was proposing to borrow money for the purchase from Amber Homeloans Limited (‘Amber’). On 7 April 2005 Amber instructed Shah & Co, solicitors, to act in relation to the mortgage; and Mr Williams retained them to act for him on his purchase. Mr and Mrs Lemas retained Shahid Rahman, solicitors, to act for them on the sale, who on 11 April wrote to Shah & Co enclosing a draft contract showing a purchase price of £249,000 and saying they were acting not just for Mr and Mrs Lemas but also for Mrs Jane James (the mother). Their letter said that Mr Williams was buying the house together with Ms S. Brown (his girlfriend).[14]Shah & Co’s instructions were short-lived. By 19 April Mr Williams had instead retained Norman H. Barnett & Co (‘NHB’), solicitors, who also acted for Amber. NHB wrote to him on that day enclosing a note of their charges, referring to the forthcoming completion and asking for the balance required to complete. Some of the documents suggest that completion was originally intended to be on or about 27 April although that did not happen. NHB wrote to Mr Williams on 21 April recording that he had agreed to cancel the caution he had lodged and that the loan protected by it was to be deducted from the purchase price. To the latter end, Mr Williams made the statutory declaration of 28 April to which I have referred. Had completion taken place on 27 April and the loan repaid on that day, the declaration might have made sense. As those things did not happen, it is not easy to know what to make of it – or of Mr Williams’s Delphic observation in it that ‘I expect to receive £117,000 … on or about 29th April 2005.’[15]The judge did not refer to it (it may not have been in evidence), but our documents include a letter dated 27 April 2005 from Russell Jones & Walker (‘RJW’), solicitors, to Mr Williams. It was, however, addressed to him c/o the house, where he was not resident, and Mr Allston told us that that was because it was Mr Lemas who was organising the transaction to which it related. There was no evidence as to whether Mr Williams saw the letter – or whether it was in fact he who gave the instructions to which it refers. It reflects that on 26 April Mr Williams had instructed RJW to prepare a draft accumulation and maintenance trust ‘which will be constituted with the property that you are in the process of purchasing, and the purchase of which will complete today.’ The last part of that was wrong, of which RJW were probably unaware. The letter continued: ‘The accumulation and maintenance trust will provide for Jessica Lemas to inherit 90% of the trust fund upon her attaining the age of 25 years and for Nathan Lemas to inherit 10% of the trust fund upon attaining the age of 25 years. I understand that you will not be living at the property. It is intended that your trustees will rent out the property, which will generate income for the trust. Your trustees will be able to advance income from the trust to Jessica and Nathan as and when they see fit for their maintenance, benefit and education. They will also be able to inherit the trust fund upon attaining the age of 25 years, again for their maintenance education and benefit. I understand that the property was purchased with the financial assistance of your girlfriend. I understand that she is not intended to be registered as a proprietor of the property in terms of the contract for the sale and therefore I understand that the money she paid to you was a gift. If the payment is not a gift but instead your girlfriend intends to obtain an interest in the property, this will have implications in terms of the drafting of this accumulation and maintenance trust. I can not advise your girlfriend in this respect and I must therefore recommend that she obtains independent legal advice in respect of the money she has given to you for the purchase of the property and likewise, whether she should object to you placing the entire property in trust. Once you have placed the property into the trust you can not retrieve the property from the trust. You have made a gift of the property to the two beneficiaries of the trust, Jessica and Nathan. I understand that you have had to obtain a mortgage from the bank to purchase the property. Please advise me whether the charge is registered against the property to be placed into the trust. If so, please advise how it is intended for the mortgage to continue to be paid. If you are to continue to pay the mortgage on the property I would suggest that a further agreement is drafted ancillary to the trust document which confirms that you are agreeable to settling the mortgage, but at the same time will make no claim on the property. The debt, as a result will remain a liability of your estate. You have instructed me solely to draft the trust document. … I would advise that you contact your mortgagees to ensure that they are agreeable to the property being placed in trust but for your name to remain on the mortgage documents. The Trust document will need to be registered at the Land Registry, which will show the Trustees of the trust as the legal proprietors of the property and not you. Your name can not remain on the title documents…. Finally, I have drafted the accumulation and maintenance trust and this will be discussed in our meeting today at 12 noon. I advise you to take financial advice in terms of placing the property into trust. I have not provided you with tax advice in respect of the drafting of the trust. … I can provide you with tax advice. ...”[16]So the story moved into an area redolent of improbability: one in which Mr Williams and perhaps his girlfriend were proposing to buy the house from Mr and Mrs Lemas for £250,000 with the intention of promptly settling it on trust for their two children and so returning the entire beneficial interest to the family. Moreover, Mr Williams was proposing to borrow -- and to incur a personal liability to repay -- £212,500 from Amber for the privilege of doing so. Mr Williams’s evidence was that he had no intention of settling the house on the children. But central to Mr Lemas’s case was that Mr Williams had done just that; and he relied on a trust deed that Mr Williams admittedly executed.[17]The trust deed was drafted by RJW. A space for the date on the first page is blank. It was made between Mr Williams, as ‘the Settlor’, and Mr Lemas and Mr Sealy as ‘the Trustees’. It recited that the Scheduled property had been transferred or delivered to the trustees and that further money or property might be paid or transferred to them, all such property being defined as ‘the trust fund’. It described Jessica (then 9) and Nathan (then 15) as the primary beneficiaries. They are the children of Mr and Mrs Lemas. The trust fund was held on conventional accumulation and maintenance trusts, to be held as to 90% for Jessica and 10% for Nathan on their respectively attaining 25 years of age. There is no need to detail the trusts. Clause11.1 provided that, during his lifetime, Mr Williams had the power of appointing new trustees and clause11.2 provided that if Mr Lemas should be unable or unwilling to act or should die before the defined ‘closing date’, it was Mr Williams’s wish that Mrs Lemas should replace him. Part 2 of the document contained administrative provisions, including the powers of an absolute beneficial owner in relation to the management of the trust fund.[18]The Schedule described (in type) the original trust fund as being £10. To the left is written (in manuscript) ‘26 Purleigh Avenue, Woodford Green, Essex IG8 8DU’. Whoever wrote that intended to convey that the house was part of the trust fund. Underneath that, the document is (in type) described as having been ‘Signed as a deed and delivered by’ each of the parties. The document was signed by Mr Williams in the presence of a solicitor with A.H. Page, solicitors, and against his signature is written (in manuscript) ‘28/4/05’. Below that appear the purported signatures of Mr Lemas and Mr Sealy, both apparently witnessed by a Mr Shillingford, and below each is written (in manuscript) ‘01/05/05’.[19]Mr Williams’s evidence was that he did sign the trust deed on 28 April 2005 but that the Schedule did not include the manuscript reference to the house. It would have been surprising if it had. He did not own the house, he had not contracted to buy it and he had not ‘transferred or delivered [it] to the Trustees’; and the Schedule purported to do no more than describe property that had been so transferred or delivered. His case – disputed by Mr Lemas -- was that he never intended to settle the house on trust for the Lemas children.[20]Back to the sale of the house. On 5 May 2005 Mr Williams wrote to NHB. They were proposing to cease acting for him, the inference from his letter being that he had not satisfied their money laundering inquiries. Contracts for the sale and purchase of the house were, however, exchanged on 20 May 2005. The price was £250,000. Mr Williams, the judge found, paid a deposit of £37,500 financed as to £36,000 through his bank card and as to £1,500 in cash, although a letter from Mr and Mrs Lemas’s solicitors (which may not have been in evidence) recorded that contracts had been exchanged with a nil deposit. Mr Williams borrowed from Amber the balance required to complete, which the judge found to be £212,500. Completion was fixed for 20 July. On 2 June Mr Williams wrote to HM Land Registry enclosing a form withdrawing his caution lodged in December 2002.[21]By 6 June Mr Williams had instructed A.H. Page in place of NHB. By 14 June he had instructed Macleish Littlestone Cowan in their place. Completion took place on 6 July. Despite earlier indications of an additional vendor and purchaser, Mr and Mrs Lemas were the only transferors and Mr Williams the only transferee. Mr Williams was registered at HM Land Registry as proprietor of the house on 21 July, when Amber’s charge was also registered.[22]On 11 July Mr Williams signed a document saying, in relation to the caution he had withdrawn, that Mrs Lemas had owed him £117,000, but he acknowledged receipt of a cheque from her solicitors in that sum in full discharge of the caution. It is difficult to reconcile that with his statutory declaration of 28 April 2005, which said that Mrs Lemas had only ever owed him £30,000 and had repaid it in full, although it did include the reference to an expected receipt of £117,000 from an unnamed person. Mr Allston’s explanation of the £117,000 was that it was not owed to Mr Williams but to Mr Sealy. Mr Gofur’s explanation of the £117,000 was that Mr Williams received it as part of a scam in which Mrs Lemas was engaged, and Mr Williams had given evidence to the judge to that effect.[23]As for the subsequent history of the house, Mr Williams’s evidence was that, until about December 2005, he used the rents from 1107 Newham Way to pay the Amber mortgage. Mr Lemas then evicted the tenants, Mr Williams could not meet the mortgage payments and in April 2006 Amber commenced possession proceedings. At some point, however, and until about May or June 2006, Mr Lemas provided Mr Williams with rents from the house with which he paid the mortgage. But Mr Lemas then also stopped doing that, following which, in about June 2006, Mr Williams took possession of the house, changed the locks and rented it out. Things came to a head in July 2006 when the house was unlawfully re-possessed by Mr Lemas and occupied by the other defendant occupiers. That led to the litigation.

The proceedings

[24]Three sets of proceedings were issued in July 2006. On 10 July Messrs Lewis and Clarke issued injunction proceedings (6BO01973) against Mr Williams to stop him interfering with their occupation of the house and His Honour Judge Roberts granted them an ex parte injunction on 11 July. Their evidence asserted that Mr Sealy was their landlord. On 14 July Mr Williams issued a claim (6BO02019) against Mr Lemas ‘aka Mr Sealy’; and, on 18 July, a second claim (6BO053728) against Messrs Lewis and Clarke. There was a hearing in all three claims before Judge Roberts on 18 July. A transcript reflects that Mr Lewis had sent a fax to the court that included an assertion that ‘Our landlord [which the judge said meant ‘Mr Sealy of course’] … only received notice of Mr Williams’ application yesterday evening.’[25]What came before Judge Hornby for trial in August 2007 were those three sets of proceedings as consolidated by an order he had made on 3 August 2006. Mr Williams’s case, as explained to Judge Hornby on the latter occasion, was that none of Mr Lemas, Mr Clarke or Mr Lewis had any right to occupy the house. He referred to the trust deed, saying that ‘it was signed but nothing was placed in the schedule, ….’ Mr Lemas’s position, as explained to Judge Hornby, was that ‘we are here to prove [Mr Williams] is not the owner ….’[26]The claimant in the consolidated proceedings was Mr Williams. On 14 August 2006 he served his Particulars of Claim. His named defendants were(1) Mr Lewis,(2) Mr Clarke and(3) Mr Lemas ‘aka George Sealy aka Roderick Graham’. Mr Williams was convinced that Mr Lemas and Mr Sealy were one and the same person (yet he had been a party with both to the trust deed). He asserted that the defendants had entered and were occupying the house without his consent. His claim was for possession and other relief.[27]A further hearing before Judge Hornby on 6 October 2006 was attended by Mr Williams and Mr Lemas. We have a transcript. No Defences had been served although they had been ordered to be served by 21 August. By the order then made Mr Williams was permitted to add Mr Sealy as a fourth defendant. Paragraph 2 directed him to file and serve amended Particulars of Claim by 20 October 2006 ‘to include any allegations that he wishes to make against [Mr Sealy] ….’ Paragraph 3 provided that:
‘Unless the First, Second, Third and Fourth Defendant file and serve a defence by no later than 4 pm on 30th October 2006, each or all of them shall be debarred from defending.’
The order gave directions for trial, including disclosure by 4 December 2006 and exchange of witness statements by 15 December 2006. The amended Particulars were to be served by the court and Mr Williams gave the judge Mr Sealy’s correct address for service, 563 Eastern Avenue, Ilford, with the judge advising Mr Williams that ‘You must arrange with the clerk, make sure she has got the right addresses.’ Mr Lemas told the judge that 563 Eastern Avenue was also his address for service; and Mr Williams pointed out to the judge the fact of the common address. On about 10 October 2006 Mr Williams filed amended Particulars of Claim, naming Mr Sealy as the fourth defendant.[28]On 31 October 2006 Mr Lemas filed a document described as a ‘Defence to Claimant’s Particulars of Claim dated 10th October 2006’. It was dated 30 October 2006 and bore no statement of truth. It denied that Mr Williams had any right to possession of the house and made other denials but pleaded little in the way of a positive case. Paragraph 7 did, however, say that ‘Among other defences to be put forward at the trial, one is that there is an active legal trust document.’ That was a reference to the trust deed but Mr Lemas did not spell out the case he was making in respect of it.[29]On 21 November 2006 His Honour Judge Polden made an order that as all four defendants had failed to comply with paragraph 3 of the order of 6 October 2006, they were debarred from defending. Paragraph 4 permitted any party to apply within seven days to vary, set aside or stay that order. That order may have been made on Judge Polden’s own motion.[30]On 29 November 2006 Mr Lemas applied to set aside the debarring order so far as it related to him. After adjournments, his application was heard on 13 April 2007, when the order was set aside. In the meantime, on 23 March 2007, the trial was listed for 14 and 15 August 2007.[31]On 4 June 2007 there was a hearing before Judge Roberts at which Mr Williams sought a possession order against Mr Lewis and Mr Clarke, both of whom had been debarred from defending. Neither attended the hearing. Mr Williams gave evidence and was cross-examined by Mr Lemas. Mr Williams explained that he had been repaid some £22,000 of his £30,000 loan to Mrs Lemas, the repayments being from the rents of 1107 Newham Way. He had also received £117,000 from some solicitors and had immediately repaid ‘most of it’ to Mr Lemas. Interesting though further evidence about that might have been, Judge Roberts regarded it as irrelevant to the possession claim before him, cut the cross-examination short and made the order. He permitted Mr Williams to re-amend the Particulars of Claim, which were treated as served on Mr Lemas by a delivery of a copy at court; and he gave Mr Lemas till 25 June 2007 to serve a Defence.[32]Mr Lemas was believed to have failed to serve such a Defence and on 2 August 2007 Judge Hornby, acting of his own motion, gave him until 13 August 2007 to serve ‘a full Defence’, failing which he was to be debarred from defending. By that order, Judge Hornby also brought forward to 14 August (from 20 August) the start date of the trial.[33]On 13 August Mr Lemas made a witness statement. He said he had previously filed Defences, the last on 14 June 2007, which he claimed to attach to his witness statement. That document asserted that Mr Williams’s title as the registered proprietor of the house did not make him the owner; even if he was the owner, he had given permission to Mr Lemas to put people into it; and even if he had cancelled that permission, he could not undo what was done under it. Mr Lemas further asserted that he, Mr Clarke and Mr Lewis were ‘… entitled to occupation given us by the trustee of [the trust deed]. Under the terms of that Trust Mr Williams placed [the house], into that trust to be administered by the trustees. Part of that administration is the authority to rent it out to whoever they please. … The situation is no different to a registered owner transferring authority to a letting agent who rents out the property. The owner cannot simply later change his mind and call the occupiers trespassers in an attempt to get possession.’ Mr Lemas produced the trust deed to the court on 15 August 2007, the second day of the trial.[34]The trial was obviously somewhat unsatisfactory. There had been no, or no full, disclosure and there was no agreed bundle. Mr Williams’s solicitors produced a bundle on the first morning of the trial, one which Mr Gofur had constructed over the weekend. Mr Lemas also brought his own documents along. The trial commenced on Tuesday 14 August. There may have been a short opening, but it was adjourned at an early stage to the following morning. Mr Williams gave his oral evidence in chief on 15 August, was cross-examined by Mr Lemas and re-examined by Mr Gofur. The trial was then adjourned to 16 August, when it re-commenced at about 12.30 pm with Mr Lemas’s evidence. What then happened emerges from my summary of the judge’s judgment, also delivered on 16 August.[35]Judge Hornby said that Mr Williams’s case was simple. He was the registered proprietor of the house and had not given permission to the defendants, including Mr Lemas, to occupy it. Mr Lemas’s main defence was the point just quoted from his witness statement of 13 August.[36]The judge went through the history, although not in the detail I have (that is not a criticism: the judgment was an extempore one, much of the detail I have set out is probably not essential and some of the documents I have mentioned may not have been in evidence). After summarising the course of the sale of the house to Mr Williams, the judge said that Mr Lemas had ‘introduced [the trust deed] into the case’ by his witness statement of 13 August. Mr Lemas produced it to the court during his cross-examination of Mr Williams. The judge said that Mr Williams accepted that he signed it on 28 April 2005 and that his evidence was that the schedule then contained only the figure £10. It did not include the reference to the house.[37]The judge explained the course of Mr Lemas’s evidence, which (we were told) started at about 12.30 pm on 16 August, when he affirmed and started to give his oral evidence. The judge took him through the court bundle. The judge explained that its production at the beginning of the trial meant that Mr Lemas had not previously had the chance to master it. But the adjournment until 15 August had enabled him to re-familiarise himself with its relatively few documents, which had also been produced and used earlier in the litigation.[38]There was then a break in the proceedings for lunch, and in paragraph 18

the judge described what happened when the hearing resumed:

‘… I invited Mr Lemas to continue his evidence and he indicated to me that he had been advised not to give evidence. I am bound to say I was somewhat surprised by this turn of events because Mr Lemas had appeared perfectly at ease giving his evidence. So it was something of a surprise to find that he no longer wished to give evidence. It seemed to me that a person is entitled, if they do not want to give evidence, not to give evidence, and the court can not force an individual to give evidence if they do not wish to. I explained very carefully to Mr Lemas that the court would obviously encounter some difficulties because he could not be cross-examined and his evidence would not be tested. It might be a disadvantage to him, and he would not be able to introduce other documents that I was aware he had brought with him and was wanting to introduce. I told him that if he wanted to introduce those documents he would have to introduce them in evidence. Mr Lemas was adamant that he would not give evidence, and so the only evidence I have heard from him is his confirmation of the documents which are in the trial bundle.’

The judge made points to the like effect in paragraph 36, as follows:

‘The difficulty that the court found was that it seemed that Mr Lemas was not interested in putting what his case was, but was interested in making Mr Williams repeat the evidence that he had already given ad nauseam. I had to intervene on a number of occasions, trying to encourage Mr Lemas to actually put his case, but doggedly Mr Lemas did not want to do that. One would have been here for many hours. Indeed, I suspect that if Mr Lemas had decided to give evidence and introduced all the documents that he brought to court today, which he could have sought to have done if he wanted to. I made it clear to Mr Lemas that I would hear his evidence if he wished to give evidence, and that it would have been much longer if he wanted to produce the documents, I would consider them and give Mr Gofur the chance to go through them. If he had wished, he would have been able to give his evidence throughout the whole of this afternoon but he decided not to and there it is.’
[40]It is apparent from the post-trial discussion that a bundle of documents that Mr Lemas had produced and handed to the judge was regarded by the judge as not having been admitted as evidence in the trial. Our bundle includes the material that Mr Lemas wanted the court to consider, but which, in the circumstances explained, it did not. They are a witness statement he made on 15 August and produced on 16 August, which he did not seek to affirm by oral evidence; and various documents referred to in it.[41]So far as the trust deed was concerned, the judge had Mr Williams’s evidence on it. As for Mr Lemas, he had merely referred to it in his witness statement of 13 August. His case was that ‘the terms of the trust were to place [the house] as a property for the benefit of the trustees.’ Mr Lemas put to Mr Williams when he cross-examined him that the manuscript reference to the house was in the Schedule when he signed it. Mr Williams, however, was absolutely clear that it was not. His evidence was that the house was never in the Schedule. He said it would have been surprising if it had been. First, he said, as at 28 April 2005, he did not own it. At that date it belonged to Mrs Lemas and possibly also Mr Lemas, or his trustee in bankruptcy. Secondly, he had borrowed – or was going to borrow -- £35,000 for the deposit and £212,500 from Amber to complete the purchase. Thus he had assumed – or would be assuming – heavy liabilities to others in respect of the house. Had he transferred the house to trustees for the benefit of the Lemas children, he would have been unable to pay off his indebtedness whilst the children would have had an enormous benefit. Mr Williams said this was something he had neither intended nor could afford. The judge added that it was improbable that any solicitor would allow Mr Williams to execute such a trust deed in relation to a house he did not own, with contracts still not exchanged; nor would a solicitor have left the manuscript amendment referring to the house unendorsed by initials.[42]The judge expressed further reservations about the trust deed. One was that it was not sealed. There is, with respect to the judge, nothing in that, and he appears to have overlooked the provisions of section 1 of the Law of Property (Miscellaneous Provisions) Act 1989. Assuming all else in favour of the document, it would have been validly executed as a deed even though not sealed. The judge was also suspicious about the similarity between Mr Lemas’s and Mr Sealy’s signatures. He was justified in his suspicion about Mr Lemas’s signature. Mr Lemas’s Defence of 30 October 2006 bore a signature which Mr Allston, on instructions, told us was Mr Lemas’s. It bears not even a remote similarity to that on the trust deed. The explanation was that Mr Lemas uses (at least) two different signatures.[43]The judge’s conclusion about the trust deed was that as it was not sealed, it was not a deed. It followed that it could not have given the trustees the powers it purported to give them. For reasons given, that reasoning was wrong. The judge also held that, as an undischarged bankrupt, Mr Lemas could not be a trustee. He was wrong about that too. Mr Lemas’s status as an undischarged bankrupt did not prevent him being a trustee. Only Mr Sealy, the judge said, could have been a trustee, but although the case had been before the court on many occasions Mr Sealy had never appeared. Mr Lemas told the judge that Mr Sealy had gone on holiday on the Saturday before the trial, which the judge did not believe. He said ‘it was extraordinary that Mr Sealy has never participated in this matter – if he exists, and Mr Williams was dubious about that.’[44]Although, therefore, the judge’s reasons so far for finding that the trust deed invalid were flawed, he found as a further fact that when Mr Williams executed the deed, the house was not included in the Schedule; and he rejected Mr Lemas’s evidence in his witness statement that the house was vested in the two trustees. That further finding was consistent with an observation made by His Honour Judge Roberts at a hearing on 18 July 2006, who referred to the trust deed produced to him as not including a reference to the house (we were shown the transcript). In paragraph 35, the judge said that he found Mr Williams to be a reasonable witness who did his level best to help the court on all matters, whilst Mr Lemas did his like best totally to confuse Mr Williams whilst appearing to display no interest in presenting his own case. In his costs judgment, the judge described Mr Williams as ‘very frank and honest about that matter [the trust deed] and I accepted his evidence unreservedly.’ He also there explained that wherever there had been a discrepancy between the evidence of Mr Lemas and Mr Williams, he preferred that of Mr Williams.[45]The outcome was that Mr Williams had proved his title to the house, and it was not vested in Mr Lemas or Mr Sealy as trustees. Mr Lemas’s defence was therefore fatally flawed. It depended on the claim that Mr Sealy had authorised him to occupy the house but as Mr Sealy had no title to it, he had no authority to do so. The judge considered an alternative argument raised by Mr Lemas, based on an assertion that he had acquired an interest in the house under a resulting trust. That failed too and has not been re-opened before us.

Mr Lemas’s application for permission to appeal

[46]Mr Lemas’s case is that the judge’s order should be set aside and there should be a new trial. The substantive case he would wish to make on a re-trial is that the house was and is held by him and Mr Sealy as trustees on the trusts of the trust deed and that he (and the other occupiers) were authorised by the trustees to occupy it. The judge, it was said, was wrong in relation to the point about the absence of sealing and the inability of Mr Lemas to be a trustee. It was said the judge was also wrong to find that the house was anyway not subject to the trust deed. It mattered not that the house was not owned by Mr Williams when he executed the deed. It was said that, provided he intended to impress the house with a trust, then once he acquired the house, it would automatically become so impressed. I do not understand upon what principle that proposition is thought to be based. Assuming, which Mr Williams denied, that he did intend to subject the house to a trust for the benefit of the Lemas children, he did not create any such trust on 28 April 2005 when he executed the trust deed; and his prior intention would not have caused the house to become subject to such a trust when he acquired it on completion. Any trust he had intended to create would still remain incompletely constituted, or in fieri; and as he had not contracted to create such a trust, equity – which does not aid a volunteer – would not have compelled him to do so. Reliance for the case that the house was in fact held on such a trust would, however, also be placed at a re-trial upon the documents that Mr Lemas declined to put in evidence. Those were the documents that he produced on the third day of the trial.[47]The basis of Mr Lemas’s application is, in summary, that there has been a miscarriage of justice. Reliance is placed, first, on his assertion in his witness statement of 13 August 2007 that it was only on 9 August 2007 that he received a copy of Judge Hornby’s order of 2 August by which the trial date was advanced from 20 August to 14 August. In paragraph 1 of his statement, Mr Lemas said the short notice was such that he had not been able to secure legal representation ‘as my legal aid application cannot be processed in such a short time and solicitors contacted are away from work.’[48]I do not understand Mr Lemas to have made an application for an adjournment of the trial. We were not told that he did and the judge makes no reference to one. If he had made such an application, its refusal would have been properly within the judge’s discretion. Nor, in my judgment, was this a case in which, even though (so I presume) Mr Lemas did not ask for an adjournment, the judge ought of his own motion anyway, in Mr Lemas’s interests, to have adjourned the trial. Contrary to the impression Mr Lemas conveyed by his witness statement, the trial was not suddenly sprung on him. He had represented himself in the proceedings since July 2006. He was present on 23 March 2007 when Judge Hornby fixed the trial date for 14 and 15 August 2007 and adjourned to 13 April 2007 the hearing of Mr Lemas’s application to set aside the debarring order. He attended court on 13 April 2007 when that order was set aside. He attended a hearing before Judge Roberts on 4 June 2007, when his application to strike out Mr Williams’s claim was dismissed and he was ordered to serve a ‘full’ Defence to the claim, setting out every fact relied upon for his claim to remain in occupation (his Defence of 30 October 2006 had given no such details). He knew perfectly well that the trial was in August. It is fair to note that at some point the trial date was put back to 20 August and then (on 2 August) brought forward to its original date of 14 August. I am not, however, persuaded that that change of date, of which Mr Lemas admittedly only learnt shortly before, entitled him to say that the trial should not have gone ahead at all. It is obvious that he was intending to represent himself; and also that he had had plenty of time to prepare. There is no evidence that he had ever made an attempt to be represented by lawyers. If (as his statement suggests) it was only in August that he first thought about obtaining such representation, it was too late. Given the history of the case, a wish to be represented could not have been a proper ground for an adjournment. There is nothing in this first ground of complaint.[49]The next point made is that this was a complicated case and Mr Lemas had to deal with it in person. The second point is correct and I am prepared to accept that the case was relatively complicated. But I do not see where this goes. Whilst I do not conclude that Mr Lemas chose to act in person, there is no evidence that he ever sought to be represented; and the result was that he did act in person. That he so acted in a relatively complicated case whose outcome was not what he wanted is not a factor that, by itself, entitles him to a re-trial.[50]It is then said that there had never been any proper disclosure in accordance with the court’s order of 6 October 2006 and no trial bundle had been agreed. That too is correct. Given that both Mr Williams and Mr Lemas were in person for most of the time (Mr Williams appears to have had solicitors by about June 2007), that is not particularly surprising. Did Mr Lemas ever produce a list of documents? I doubt it. I agree it would have been in everyone’s interests for a bundle of documents for the trial to have been agreed in advance. Both sides were to blame for the fact that it was not, Mr Williams (as claimant) more so than Mr Lemas. But that shortcoming does not entitle Mr Lemas to a re-trial. The case was no doubt in some disorder at the start of the trial. That is perhaps not uncommon in county court proceedings in which one of the parties is not legally represented. But what is the suggested answer? An adjournment? Litigation has to reach finality even if the road to it is less than perfect. The trial date in this case had been fixed in March 2007, the parties knew that, and that was their opportunity to present their cases, however poor their collective or several preparations for it. The preparation of the case anyway did not prevent Mr Lemas from having a fair trial. He had time in which to re-familiarise himself with the documents Mr Williams was relying upon (they had been referred to at earlier hearings). He was presumably familiar with the documents that he wanted to rely upon. In the event, however, he chose not rely on the latter. That disadvantaged him, but that was no-one’s fault but his own.[51]The real complaint advanced by Mr Allston on behalf of Mr Lemas is that the judge did not take into account the case that Mr Lemas wanted to, but did not, make. That case was explained in Mr Lemas’s four-page (in part, closely typed) witness statement of 15 August 2007, by which he referred to a number of additional documents upon which he wanted to rely, including a ‘Declaration of Trust’ purportedly signed by Mr Williams on 6 October 2005. That is an apparently home-made document by which (in effect) Mr Williams purported to declare a trust in respect of the house if the trust deed had failed to do so. The witness statement advanced a complicated explanation of what really happened and sought to answer certain points that Judge Hornby raised during the trial. Put shortly, the essence of the case made was that Mr Williams put up no money of his own towards the purchase of the house. He is said to have been a front for the real purchaser, Mr Sealy, and was only involved at all because he had experience in the running of residential care homes; and it was Mr Sealy who put up the money for the purchase -- apart from the £212,500 lent by Amber, for the repayment of which Mr Williams is, so it appears, personally and exclusively liable. As I follow it, Mr Lemas wants to argue that a variety of equitable principles would prevent Mr Williams from asserting his legal interest in the house in priority to Mr Sealy’s claimed right (either as trustee or as a beneficial owner by virtue of his contribution to the purchase price) to entitle Mr Lemas and others to occupy the house.[52]That case is, not surprisingly, rejected by Mr Gofur for Mr Williams; and he made it plain that Mr Williams disputes that the ‘Declaration of Trust’ is a document he signed. But the key point about Mr Lemas’s witness statement of 15 August 2007, the new documents to which it referred and the case that it sought to make is that none of it became part of his evidence or case at the trial, for the reasons Judge Hornby explained. He did not even put any of his new documents – in particular, the ‘Declaration of Trust’ – to Mr Williams in cross-examination. He was given the opportunity by the judge to make whatever case he wanted to by giving evidence and producing documents. He declined to do so.[53]I should, however, refer to this exchange in the post-trial discussion:
‘MR LEMAS: Your honour, you said something … you did not make it clear to me that had I taken the stand I could have had my bundle admitted. My understanding was you were deciding – THE JUDGE: I made it very clear to you, Mr Lemas. I actually repeated over and over again what the position was, and I am not going into it once more. I actually positively encouraged you to give evidence on a large number of occasions. MR LEMAS: You did encourage me to take the stand, your honour, but you did not say – THE JUDGE: Let us not go into it any further. MR LEMAS: [inaudible]’
[54]That can be said to reflect an assertion by Mr Lemas that he had not understood that giving evidence was a condition of adducing his documents into the case, as Mr Allston submitted. But I do not see how, in the face of the clear account in the judge’s judgment as to what happened, this court can do other than accept that account. Whilst we have a transcript of Mr Williams’s evidence, we do not have a transcript of the proceedings in the afternoon of 16 August 2007. If Mr Lemas disputed the accuracy of the judge’s account given in his judgment, he could have obtained such a transcript.[55]As for the delay in filing the appellant’s notice, Mr Lemas’s explanation is that he only received a copy of the possession order on 2 October 2007. Time did not, however, run from then. It ran from the date of the order, which was 16 August 2007, and Mr Lemas was present in court when the order was made.[56]In my judgment Mr Lemas makes out no case for a re-trial. It is not enough for him now to explain the case he would like to have made to the judge, but did not, and expect this court to order a re-trial. If he is to be given a re-trial, he must first satisfy us that the judge’s decision was wrong or else unjust because of a serious procedural or other irregularity (CPR Part 52.11(3)). Nothing that Mr Allston advanced in his careful argument satisfied me that it is arguable that, in the light of the cases respectively advanced to the judge, his decision was wrong. He admittedly made errors in his assessment of the validity of the trust deed. But his factual finding that the house never became an asset of the purported trust (because it was not included in the Schedule) was one that it was open to him find on the evidence before him, it is not challengeable before this court and it was fatal to Mr Lemas’s case.[57]As to whether there was any procedural or other irregularity below, in my judgment there was not. Mr Lemas represented himself and, like any litigant in person, he enjoyed a degree of autonomy as to the manner in which he conducted his case. Trying cases in which a party is representing himself can be amongst the more difficult judicial tasks. Judges should be, and are, properly sensitive to the disadvantages that such litigants face; and will ordinarily do their best to ensure that the unrepresented litigant has a proper opportunity to present his case fully. This may, for example, require the granting of adjournments in circumstances in which no like adjournment would be granted to the represented litigant. It may require a degree of indulgence during the litigants’ examination of witnesses. It may require the judge to take a firm line in keeping the litigant to the relevant issues.[58]There are, however, limits to what a judge can and should do in order to assist such a litigant. It is for the litigant himself to decide what case to make and how to make it, and what evidence to adduce and how to adduce it. It is not for the judge give directions or advice on such matters. It is not his function to step into the arena on the litigant’s side and to help him to make his case. In the present case, the decision as to whether to give evidence and to prove the documents that he thought would help his case was for Mr Lemas alone. When he indicated that he did not want to give evidence, the judge properly pointed out to him the consequences if he did not. I have no doubt that the judge made the position clear. Mr Lemas, however, was adamant that he did not want to give evidence or therefore, in consequence, prove his further documents. There is no reason for this court to assume other than that he understood the consequences of his decision. It was his right to take that stance, however ill-advised. The judge could not compel him to give evidence if he did not want to. Mr Lemas’s decision was in no manner reflective of any procedural error or other irregularity in the conduct of the trial.[59]In my judgment, Mr Lemas’s appeal has no prospect of success. I would refuse to extend his time for appealing and his application for permission.

Mr Sealy’s application for permission to appeal

[60]Mr Sealy claims that he was not served with the proceedings and has an arguable defence on the merits to Mr Williams’s claim. He wants us to set aside the judge’s order of 16 August 2007.[61]Mr Sealy was not originally named as a defendant to Mr Williams’s claim, he was merely named as an alias for Mr Lemas. The court gave Mr Williams permission on 6 October 2006 to add Mr Sealy as a fourth defendant to the title to the proceedings and to ‘file and serve [by 20 October 2006] an amended Particulars of Claim to include any allegations that he wishes to make against [Mr Sealy] ….’ Mr Williams filed amended Particulars of Claim on about 10 October 2006 and it was for the court to serve them at the address at 563 Eastern Avenue, Ilford that Mr Williams gave to the court on 6 October (being also Mr Lemas’s address that he too gave to the court).[62]Mr Sealy now disputes that he was ever served. In his witness statement of 28 October 2007, he said:
‘I have never been served with any papers on this matter or property by Mr Williams or any representative of his. I am told by Mr Lemas, that Mr Williams believed him to be me or my name being an alias used by him. I have now seen some papers received by Mr Lemas from Mr Williams, all of which refer to him as Mr Lemas aka G. Sealy. I am also told and have seen court transcripts and Witness Statements in which Mr Williams always maintain [sic] this delusion. I have also never played any part in this action. It appears Mr Williams added my name at a later stage to cover himself believing Mr Lemas to have two names.’ (Emphasis supplied)
[63]That statement perhaps gives less than the full picture. Mr Allston accepted that Mr Sealy knew about the proceedings because he instructed Malik Solicitors in relation to them. On 12 April 2007 they wrote to the court under the reference ‘Claim No: 6BO01973, Williams v. Lewis & Clarke’, saying that they acted ‘on behalf of George Sealy the fourth defendant in the above matter.’ Mr Sealy only became ‘the fourth defendant’ as a result of the order of 6 October 2006 and so Malik must have seen something (but they do not say what) enabling them to write as they did, although they also wrote that ‘the Court papers have not reached us’. They said they had seen ‘both Mr Sealy and Mr Lemas together’ and Mr Lemas said the same to the judge.[64]Malik also knew that there was a directions hearing in the proceedings on the following day, 13 April 2007, but said that, for reasons given, ‘it has not been possible to properly prepare for the hearing.’ They asserted that Mr Sealy had ‘not been served with any court papers in this matter as required by the Rules.’ They nevertheless asked the court to strike out the claim against him on the ground that Mr Williams had not complied with(i) the order of 11 July 2006 requiring him to hand over the keys to the house to Messrs Lewis and Clarke;(ii) subsequent orders of 3 August and 12 October (they meant 6 October) 2006 ‘instructing him to, among others, lodge and serve on the defendants his Particulars of Claim etc.’ Their letter continued:
‘If the court is not minded to strike out the matter, we would respectfully request an adjournment to enable us to take instructions, respond on our client’s behalf to the claim and make adequate arrangements and preparation for future hearing. Further and especially, our client requests that the validity of the trust document be settled before any order for change of possession is made.’
[65]It may be, and Mr Gofur admitted that he could not prove otherwise, that Mr Sealy was not properly served with the Order of 6 October 2006 and the amended Particulars of Claim. But there is no doubt that, by April 2007, he knew that he was a named defendant in the proceedings. Far from ‘never’ playing any part in the action, he applied for it to be struck out; and, in default, he made it plain that he wanted to take part in the proceedings, in particular in relation to the issue as to the validity of the trust deed, which he knew was central to the issues in the litigation. As a purporting trustee, whose duties required him to act selflessly in the interests of two minor beneficiaries, one might expect him to have recognised an obligation to take pro-active steps as such a trustee. He did not do so but appears to have preferred to let the case go by default: a case he knew was directed at defeating his beneficiaries’ rights. I have little doubt that he knew from Mr Lemas of the progress of the litigation. When Judge Hornby asked Mr Lemas why Mr Sealy was not at the trial, he was told he had just gone on holiday: not that he knew nothing about it.[66]As for the merits, Mr Sealy’s case is that he has never been in possession so that no possession or costs order should have been made against him. He claims to have been no more than a trustee of the house. As for the delay in the filing of his appellant’s notice, his statement of 28 October 2007 explained that he was only recently shown the possession order of 16 August 2007. He still did not file his appellant’s notice until 15 January 2008. That was over four months out of time; and, for unexplained reasons, some ten weeks from when he claims to have discovered the making of the August 2007 order.[67]There is, in my judgment, a fundamental problem with Mr Sealy’s proposed appeal. Mr Allston very properly referred us to the decision of this court in Nelson and another v. Clearsprings (Management) Ltd [2006] EWCA Civ 1252; [2007] 1 WLR 962. It concerned a county court possession claim against a company which was not served with the claim form, but against whom an order was made. The company applied to set the order aside on the grounds that the claim form had not been served on it and it was unaware of the proceedings. The decision is mainly concerned with whether, in such a case, the applicant has to overcome the hurdles presented by CPR Part 39.3(5). The answer was that he does not, and I will assume that applies equally to Mr Sealy. But the case also shows, as Mr Allston recognised, that someone in the position of Mr Sealy is still not entitled to have the order set aside as of right: the court retains a discretion in the matter. It might, for example, decline to set the order aside if the defendant has been guilty of inexcusable delay since learning of it (see paragraph 56).[68]Mr Allston recognised, therefore, that if the court were to give permission to Mr Sealy to appeal, it would have a discretion as to whether to allow the appeal and set aside the judge’s order against him. I do not, however, follow how that can work. The function of this court is not to exercise an original discretion as to whether an order of a first instance judge should be set aside. To do so would be for it not to sit as a court of appeal, but as a court of first instance. Mr Sealy’s problem is that he has adopted the wrong procedure. His proper course was to apply at first instance for the order to be set aside, an application on which there would have to be evidence, perhaps cross-examination. It would only be the decision made on that application that might in theory be open to an appeal to this court. I would, therefore, not entertain Mr Sealy’s application any further. It is not this court’s function to do so. In any event, Mr Sealy’s leisurely, and largely unexplained, stroll towards the filing of his appellant’s notice is of such a dimension that I would refuse to extend his time for appealing even if his appeal were in principle a proper one.[69]I would therefore refuse to extend Mr Sealy’s time for appealing and also refuse him permission to appeal.[70]I agree.[71]I also agree.

Cited in 6 later judgments