Marson v Fattah [2010] EWCA Civ 266

Case No B2/2000/0564[2010] EWCA Civ 266
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
RECORDER SMITH
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 18th February 2010
Before
LORD JUSTICE THORPELady justice ardenLORD JUSTICE PITCHFORD
Between
MarsonAppellantFattahRespondent
( DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court )
Mr Simon Goldberg (instructed by Swinburne and Jackson Solicitors) appeared for Appellant.Mr Robert Smith (instructed by Foys Solicitors) appeared for Respondent.
Judgment
[1]This is an appeal against the order dated 11 February 2009 of Mr Recorder Smith sitting in the Sheffield County Court. By his order the Recorder dismissed the claim of the appellant, Mrs Marson, against the respondent, Mr Fattah, and made an order for costs against Mrs Marson. He did not give a reasoned judgment.[2]In terms of the background I can state very shortly that Mrs Marson's case is that she gave Mr Fattah a credit card in her own name for him to use and that he agreed to repay her any money that he spent on her credit card and that he had failed to make the repayments. Mrs Marson made a similar arrangement with her mother, Mrs Harfield. Her mother has in fact repaid to Mrs Marson all, or at least most, of the amounts that were incurred by her and Mr Fattah.[3]That, I think, is sufficient for me to set by way of background at this stage. I will now go to the pleadings, starting with the amended particulars of claim which appear at page 156 of the bundle. Paragraph 1 of these amended particulars state that they are intended to substitute in their entirety for the particulars of claim which appear on the face of the original claim form. Paragraph 3 states as follows:
"In or about September 2002, at the request of the Defendant, and pursuant to an oral agreement, the Claimant authorised the Defendant to be a second signatory on her account with the credit card provider known then as Providian and now as Monument. The Defendant was provided with his own credit card. Pursuant to the terms and conditions of the Claimant's account with Providian/Monument, although the Defendant was authorised to make payments using his credit card, the liability to discharge the debt incurred by his purchases was the Claimant's alone."
Then at the end of the particulars of claim there is a claim for repayment of the sum of £16,734.15, together with interest at 8% per annum from 1 August 2007 to date, and then there are particulars of that interest given.[4]The defence of Mr Fattah appears at page 74 of our bundle. This contains a number of defences. He first denies ever being included as second signatory on the claimant's credit card account. He denies that he used any credit card presented by the claimant and he accepts that he has never repaid any sum to the claimant. In an alternative case he pleads that, if he was liable to the claimant in respect of any debt from the said agreement, the claimant has now been repaid all sums due to her in respect of any sums expended on the Providian/Monument card; and he then refers to a separate and distinct agreement between the claimant and Mrs Harfield that Mrs Harfield expended the sum of £13,435.01 on her credit card plus interest; and then he pleads the total amount due and that Mrs Harfield has, on the claimant's own admission, repaid a total sum equal to the amount due in respect of both cards.[5]The appellant appears by Mr Simon Goldberg and in his skeleton argument paragraph 12 he has identified four issues appearing from the pleadings: first, did the appellant provide the respondent with a second credit card on her Monument account? Second, did the respondent agree to pay to the appellant such sums as he spent on that credit card? Third, did the respondent use that credit card and, if so, how much did he spend? Fourth, was his liability to repay extinguished by a payment made on behalf of Mrs Harfield? That fourth issue could actually be split up into two issues: what payments did Mrs Harfield make, and did they reduce or discharge the liability of Mrs Fattah to Mrs Marson?[6]Those, then, are the issues identified by Mr Goldberg. He accepts, quite properly, that it was open to the court to determine the last issue first, on the basis that they would then render the trial of the other issues unnecessary.[7]The matter had come on for trial on an earlier date but the case had then been adjourned. The adjourned hearing was fixed before Mr Recorder Smith on 13 February 2009. We have a transcript of the proceedings during that hearing. It is unnecessary to go through the transcript in its entirety, but what, in my judgment, does emerge is that the Recorder was keen to establish what Mrs Marson's case was, and in particular whether she accepted that the principal amounts due in respect of the credit card given to Mr Fattah had been repaid. He received answers, but, while the credit card had been repaid, Mr Fattah had not repaid Mrs Marson; at least that was her case. She was still seeking the principal amount and the cost to her in terms of interest. I can take three extracts to demonstrate how she put her case, and she did on that occasion appear in person. I am using the internal transcript numbers and the transcript is at the blue tab in the appeal bundle. At page 23 the Recorder asks:
"First of all, do you [Mrs Marson] accept that so far as capital sums are concerned, you have been repaid, albeit from your mother's fortune? Mrs Marson: Capital sums on the initial spends… The Recorder: Yes. Mrs Marson: Are perfectly attributed to the original debt. But it's the interest and the accumulation of interest on the refinancing of those sums, and the repayment and the reimbursement by myself."
[8]Then at page 25 of the transcript the Recorder asks:
"The £16,734.15 pleaded on your amended claim. Do you accept… Mrs Marson: That’s because […] that hasn’t been discharged in full, because of the financing of it."
And then at page 26 the Recorder asks whether Mrs Marson has received money in satisfaction of the sum of £16,034. Mrs Marson replies:
"I haven’t received"; the Recorder then: "you have not received that?"; Mrs Marson: "
I’ve received monies to cover financing of it, but not the actual original sum. Although it’s been discharged by myself to the credit card company, the monies that was used to discharge it still has to be paid."[9]The Recorder then formed the view that he should dismiss the claim. The reasoning of the Recorder has to be deduced from the transcript. But he appears to have adopted counsel's analysis at page 30 of the transcript at line 22 the Recorder said:
"Do I have an alternative but do dismiss this claim, Mr Smith?"
And Mr Smith was Mr Robert Smith who has appeared for the respondent here and below. Mr Smith replied:
"I believe not. I put that submission on the last occasion. On that occasion the learned Recorder took the view and granted effectively an adjournment as a final chance and directions to put the case in order. I am looking at my instructing solicitor's note of what he said on that occasion, Paragraph 2, ‘The onus is on the Claimant to demonstrate these monies have been to the benefit of the Claimant’ and giving her leave to amend. ‘Attaching all documents that they rely on demonstrating the main claim and the credit card interest’. We have had nothing. This is a multi-track case…"
And then for the remainder of the transcript I deduce that the Recorder also took the view that, if there was any claim against Mr Fattah, it was the claim of Mrs Harfield for contribution to the payments which she had made.[10]The first ground of appeal is whether there was a procedural irregularity as a result of the Recorder proceeding to dismiss the claim without having heard the evidence. Mr Goldberg has submitted that there was such an irregularity. In my judgment the judge was wrong to dismiss the claim on the basis which he did. Mrs Marson's case was that Mr Fattah had agreed by oral agreement to repay the amount of the credit card debt whether or not refinanced, indeed how she repaid it was really a matter for her. What the agreement was concerned with was a matter which could only be determined by oral evidence. Failure to give disclosure of documents about the refinancing would not, contrary to the respondent's submission, affect that point, although it might affect the claim for interest. Another way of putting this point is that the Recorder seems to have confused the question of repaying the amounts due from Mr Fattah and the question of repaying the amount of the indebtedness to the credit card company. These were actually two different things: repayment of the credit card company did not result in repayment of the debt due from Mr Fattah on the basis of the agreement as pleaded.[11]Mr Smith submits that the liability of Mr Fattah was joint and several, but he cannot point to any admission by Mrs Marson that she accepted that this was the position and it was again a matter which could only be determined by oral evidence and could not be used, therefore, as a basis for summary dismissal of the case against her.[12]I now move to the second ground advanced by the appellant, which is that the judge was wrong in law in any event to assume that the repayments by Mrs Harfield discharged the indebtedness of Mr Fattah. As the respondent (inaudible) point is tied up with their case that the indebtedness, if it existed (and it will be recollected that their primary case is that there is no debt at all from Mr Fattah), is joint and several, I am not going to say whether it is correct that the debt was joint and several, because that depends on the evidence and it is not a matter for this court.[13]The highest point of the respondent's case, as I see it, can be put thus: namely, that Mrs Marson's mother was a joint and several (inaudible) with Mr Fattah and that she made payments of money to her daughter Mrs Marson, which Mrs Marson appropriated to the indebtedness which she had as a result of the use of the credit cards by Mr Fattah and her mother. Mr Smith properly accepted that Mrs Harfield could have made gifts to her daughter of money and that these would not necessarily have discharged the debt of Mr Fattah even if it was a joint and several debt of herself and Mr Fattah. Accordingly, the Recorder could not give summary judgment dismissing the claim for that reason. It still has to be determined whether there was a joint and several indebtedness and whether the repayment by Mrs Harfield served to discharge that debt.[14]In my judgment the Recorder would not have been entitled summarily to dismiss Mrs Marson's claim on the basis of the payments by Mrs Harfield.[15]That brings me to my final point. I note that the judge did not give a reasoned judgment. In my judgment Mrs Marson had a right to a reasoned judgment and Article 6 of the European Convention on Human Rights, even without the Convention this court, would expect the Recorder to have given reasons which could have been quite brief to show Mrs Marson why she had had her case dismissed. It was not right that an appellate court has to go through the transcript of the hearing in order to infer the judge's reasons because of a complete absence of a reasoned judgment.[16]Before coming to the form of order which I would make on this appeal, I note that a number of submissions were made about Mrs Marson having departed from her pleaded case. I am not satisfied that that is what she did, and indeed I do not have to form a final view on that, but in any event the usual position is that permission to amend pleadings would be given provided that the other party was not taken by surprise, and one would expect counsel to take amendments in his or her stride unless they involved new evidence which was not available at the trial.[17]For these reasons I would allow this appeal; I would set aside paragraphs 1 and 3 of the judge's order; I would also set aside the charging order which, we are informed, has been made to secure the interim payment of costs ordered by the judge under paragraph 3 of his order. I would discharge the charging order if and insofar as that is the case. I would direct a minuted order so that counsel could agree the terms of the order in particular with respect to the charging order that has been made.[18]I agree that this appeal should be allowed and a retrial ordered for the reasons given by my Lady, in particular, assuming for present purposes as was Mr Smith's argument from the learned Recorder, that there was good evidence that this was a debt owed jointly by the appellant's mother and by the respondent to the appellant. There were three issues of fact which needed resolution. First, was the debt in fact joint and several, or was it owed by the respondent alone? Second, if, contrary to the appellant's pleaded case, the debt was joint, then were payments made to the appellant by her mother made on account of the joint debt? And third, was there in that event any balance due? While Mr Smith may have had a strong argument as to the first of those issues, it does not seem to me that any one of them can properly be resolved in the respondent's favour without hearing evidence. This was, as my Lady has observed, a litigant in person; it was not appropriate to decide the claim on a pleaded point in circumstances such as these.[19]I agree with the order proposed and I agree with both judgments.

Order

Application