Williams & Anor v Hinton & Anor [2011] EWCA Civ 1123

Case No 2009/2543[2011] EWCA Civ 1123
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ Gareth Jones
7PC03730
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/10/2011
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE GROSS
Between
Williams & AnrAppellantHinton & AnrRespondent
Nick Mason (instructed by Guthrie Jones & Jones) for AppellantRussell Moffat (instructed by JW Hughes & Co) for RespondentHearing Hearing dates : 13/07/2011
Judgment
[1]This is an application for leave to appeal from the judgment of HHJ Gareth Jones QC, given in the Rhyl County Court (“the County Court”), dated 29th June, 2009 (“the judgment”), allowing the Respondents’ counterclaim for damages for breaches of s.11 of the Landlord and Tenant Act 1985, s.4 of the Defective Premises Act 1972 and the First Respondent’s claim for damages for personal injury, plus interest, in the total amount of £12,096.71, plus costs. The Appellants did not attend the trial. In all the circumstances, we grant permission to appeal.[2]Additionally, by the order of HHJ Farmer QC dated 28th February, 2011, there has been referred to this Court an application by the Appellants for an injunction to restrain Sheriffs High Court Enforcement Limited (“the bailiffs”) from delivering the moneys obtained from the Second Appellant in satisfaction of the judgment debt, to the Respondents and requiring whichever of the Respondents or the bailiffs is in possession of those moneys to pay them into Court. HHJ Farmer QC further ordered that pending resolution of the Appellants’ application for the injunction, the bailiffs should retain and should not deal with the £13,069.25 paid to them by the Appellants on the 16th February, 2011. In the event it is unnecessary to say anything more as to the substance of the claim for an injunction, given that, as sensibly agreed by counsel, it stands or falls with the merits of the appeal. I shall therefore return to it formally at the end of the judgment.[3]For present purposes, the history can be briefly summarised. By an agreement in writing, the Appellants let a dwelling house, Y Berlian, in Llansannan, Denbighshire (“the property”), to the Respondents, upon an assured shorthold tenancy, for a period of six months from the 11th April, 2005. On the 3rd August, 2007, the Appellants issued a claim for possession of the property. On the 20th October, 2007, the Respondents filed a defence and counterclaim, subsequently amended, claiming damages for disrepair and (by amendment) damages for personal injuries allegedly sustained by the First Respondent. Prior to the matter being listed for hearing, the Respondents vacated the property; accordingly, only the counterclaim remained extant.[4]So far as concerns the landscape of the somewhat acrimonious legal dispute between the parties, the Respondents complained of disrepair of the property, not acted upon by the Appellants; in consequence, they had withheld rental payments and suffered loss and damage. They further averred that the personal injury sustained by the First Respondent was caused by the condition of the property. For their part, the Appellants attributed the condition of the property to its use or, as they put it, abuse by the Respondents. The personal injury, if sustained by the First Respondent, had nothing to do with the condition of the property.[5]After a number of abortive listings (see further below), the counterclaim was listed for trial before HHJ Gareth Jones QC, in the County Court on the 29th June, 2009. In the event, although as already recorded the Appellants did not attend the hearing, the Judge decided to proceed with it – and, again as already recorded, determined the counterclaim in favour of the Respondents and adversely to the Appellants.

THE JUDGMENT

[6]In a careful and clear judgment, the Judge addressed in some detail and in context, the non-attendance of the Appellants. He said this:
“ 2. … The Claimants are unrepresented and they have not attended this hearing today, and I have proceeded in this case in their absence…. I have previously considered, on 29th April, a directions hearing in this case when I adjourned the matter on that occasion because both Mr. Williamses did not attend and a medical certificate had been sent. There has been subsequent correspondence with the court and I shall deal with the effect of that in due course, but I am satisfied that both Mr. Williamses are aware of today’s hearing. I have no explanation for their non-attendance, they have chosen not to attend today and having been warned that this hearing was listed today, I have decided ….to proceed in their absence. 9. …..[The Appellants] have issued a number of applications, some of which have been before the courts, one of which, potentially, is still outstanding. The nature of the claims which they have made essentially is to seek a judicial review of the proceedings of this court, that application for judicial review most recently being considered on 11th September 2008. It is right to say that so far as that application is concerned, His Honour Judge Bidder QC, who sat on this case on that occasion on 11th September 2008, indicated and gave directions for the further conduct of this case…. 10. The application for judicial review was before the court very shortly thereafter, on 22nd October 2008, when Judge Pelling QC, sitting as a Judge of the High Court, refused the application for judicial review. There was then a renewal, potentially, of that application, by way of an oral hearing applied for by the landlords. That application, I was reminded in correspondence from them dated 26th May 2009, is before the High Court at present, and I was reminded of that further on 15th June 2009, when the Williamses attached to correspondence , which they had sent to this court, a copy of an alleged stay of execution from the High Court, which they said that they had received on 29th May. I have looked through that document very carefully and, indeed the other correspondence which has been sent to me. What in fact the Williamses appear to have done is that they have certainly filed a Notice of Appeal and a further reconsideration of their application for permission to judicially review the original proceedings. So far as I am aware, there has been no stay of execution granted by any superior court. The last correspondence I have seen from the Civil Appeals Office of the Court of Appeal, which is dated 26th May, indicates that the Williamses made an application on 19th May seeking permission to appeal the decision to refuse permission to claim for judicial review and a stay of execution and an extension of time, and a reminder that they were to supply their documents to the Civil Appeals Office by 9th June. There is not, so far as I have seen…..a stay of execution which has been granted, and the last order which has been made in the judicial review proceedings, following on from the order of Judge Pelling QC, is an order by His Honour Judge Curran on 18th March, which also refused permission to appeal in this case and refused permission to appeal. 11. Therefore, the order that I made on the 29th April, which indicated on that occasion the trial would be adjourned until today, is still valid. ….in answer to this correspondence sent by the Williamses to the court, I caused a letter to be sent to them on 9th June indicating that the document which they were referring to was an Appeal Notice and not a court order for stay, and I warned them expressly that the provisions of the order made on 29th April remained in force. So the position we arrive at today is that there is no valid appeal against the orders of this court which has been granted, they do not have a valid permission to make a claim for judicial review, no stay of proceedings has been granted by a superior court, and this court is entitled, as I see it, to proceed to deal with the merits of this counterclaim today and the Williamses, without giving any explanation [to] this court, have simply chosen not to attend today and take part in these proceedings. ”
[7]The Judge then referred to the evidence of the Respondents which he had read and which had been verified on oath at the hearing. He made express reference to witness statements from the Appellants and three supporting witnesses, saying (at [12]) that he had “read those statements also”. The Judge further had particular regard to the “single joint expert’s report” which dealt with the state of the property and contained an opinion from the Chartered Surveyor, a Mr. Evans, as to whether the defects were structural and as to the cause of those defects (ibid). Still further, the Judge had regard to medical evidence relating to the First Respondent’s alleged personal injury.[8]In the event, the Judge concluded (at [13]) that the Respondents satisfied the burden of proof resting upon them and had established that the Appellants had been in breach of the implied covenant to keep the structure and exterior of the property in repair. In reaching this conclusion, the Judge relied centrally on the report of the single joint expert, Mr. Evans (at [14]). For the purposes of the appeal, the details do not matter. The Judge went on (at [15] – [18]) to dismiss the counterclaim insofar as it claimed additional fuel costs but otherwise allowed it, both in respect of particular items of damage and a claim for general damages. In doing so, the Judge was severely critical of the condition of the property and of the Appellants for disregarding complaints made by the Respondents at the times in question and failing to take remedial action. Finally, the Judge allowed the claim by the First Respondent for personal injury (at [19]).

THE RIVAL CASES ON THE APPEAL

[9]Mr. Mason, for the Appellants, made an unopposed application, which we granted, to amend the grounds of appeal originally advanced by the Appellants then acting in person. As thus amended, the grounds of appeal may be summarised as follows: i) The Judge erred in deciding to determine the Respondents’ Counterclaim in the Appellants’ absence. In doing so, the Judge acted in breach of natural justice and/or contrary to Art. 6.1 of the European Convention on Human Rights (“ECHR”) and/or made findings no reasonable Judge could have reached on the facts. (“Ground I”) ii) Having decided to hear the case in the Appellants’ absence, the Judge erred in failing to ensure that the Appellants’ evidence and case was fully considered, contrary, inter alia, to Art. 6.1 ECHR and Van de Hurk v The Netherlands (1994) 18 EHRR 481, at [59]. (“Ground II”) iii) The Judge erred in treating Mr. Evans as a single joint expert and/or in permitting Mr. Evans’ report (“the report”) to be admitted in evidence despite the fact that the report did not contain a declaration in the form prescribed by the CPR in 35PD.3 (“the PD”). (“Ground III”) The Appellants seek an order pursuant to CPR 52.10.2 (a) setting aside the order of the Judge, together with an order pursuant to CPR 52.10.2(c), directing a new hearing.[10]In broad outline, Mr. Mason developed his submissions as follows. As to Ground I, he accepted that the Judge had the power under CPR 39.3(1) to proceed in the absence of the Appellants but submitted that the Judge had erred in exercising his discretion to do so. The Judge’s decision to proceed hinged on his conclusion that the Appellants were aware that the hearing would be going ahead and that they had chosen not to attend. The inference drawn by the Judge was wrong in the light of the correspondence between the Appellants and the Court, the manner in which the Appellants had vigorously contested the proceedings to date and the fact that the Appellants had provided explanations when they had previously sought adjournments. Against this background, the Judge’s conclusion that the Appellants had no wish to attend the hearing was inconsistent with the materials available to him and one to which no reasonable Judge could have come. There was, admittedly, no witness statement from the Appellants and the matter had to be pieced together from the documents; the reason was that the Second Appellant was conducting the litigation in name only and the first Appellant had been gravely ill. At all events, by depriving the Appellants of a right to a hearing in these circumstances, the course taken by the Judge was in breach of natural justice and/or contrary to Art. 6.1 ECHR.[11]With regard to Ground II, the only reference to the Appellants’ “evidence and case” was that contained in the judgment at [12] (set out above); that suggested an altogether too perfunctory consideration. Even if the Appellants’ witness statements did not constitute “evidence”, by reason of CPR 32.5 (see below), it remained incumbent on the Judge to give proper consideration to such materials; if need be, a wider approach was called for. What the Judge did was contrary to Art. 6.1 ECHR; Mr. Mason placed reliance on Van de Hurk (supra), at [59], where the European Court of Human Rights said this:
“ The effect of Article 6(1) is, inter alia, to place the ‘tribunal’ under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision……”
[12]As to Ground III, Mr. Mason realistically accepted during the course of the hearing before us that there was in fact a Court order that Mr. Evans should act as a single joint expert – namely, paras. 8 and 9 of the Order of HHJ Bidder QC, dated 11th September, 2008 (found at pp. 62-63 of the Respondents’ Appeal Bundle). What remained of Ground III was the submission that Mr. Evans’ declaration was not strictly in accordance with the prescribed and mandatory form, set out in the PD. The declaration contained in the (Evans) report did not say that the report was his “true and complete professional opinion”. Accordingly, the Judge should have excluded Mr. Evans’ evidence; instead it had been central to his decision.[13]In a nutshell, Mr. Moffat’s submissions for the Respondents may be summarised as follows: i) As to Ground I, the Judge had properly satisfied himself at the outset of the hearing that the Appellants were aware of the hearing; that there was no explanation for their non-attendance and that they had chosen not to attend. The Judge had carefully analysed the correspondence in question and had done everything he could have been expected to do; he was right or entitled to proceed in the absence of the Appellants. ii) As to Ground II, the Judge had done more than he was obliged to do. We did not, in the event, call upon Mr. Moffat to address us on Ground III.[14]We were grateful to both counsel for their assistance.

A PRELIMINARY QUESTION – APPEAL OR CPR 39.3?

[15]It is a feature of this appeal that although the Appellants’ principal complaint goes to the Judge proceeding in their absence, the Appellants have not made any application to the County Court to set aside the judgment under CPR 39.3(3). Instead, the Appellants have solely pursued an appeal to this Court.[16]CPR 39.3 provides, insofar as material, as follows:
“ (1) The court may proceed with a trial in the absence of a party…. (3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside. (4) An application under ….paragraph (3) must be supported by evidence. (5) Where an application is made under paragraph … (3) by a party who failed to attend the trial, the court may grant the application only if the applicant – (a) acted promptly when he found out that the court had exercised its power …..to enter judgment or make an order against him; (b) had a good reason for not attending the trial; (c) has a reasonable prospect of success at the trial. ”
[17]The relationship between a defendant’s application to set aside an order under CPR 39.3 and any attempt to appeal against the order is not straightforward and was recently considered in some detail in Bank of Scotland v Pereira [2011] EWCA Civ 241; [2011] 3 All ER 392, esp. at [35] – [48] (Lord Neuberger MR), at [77] – [83] (Lloyd LJ) and at [116] – [117] (my own brief observations). As it might be thought that the present was almost a paradigm case for an application under CPR 39.3, we raised with the parties the preliminary question not canvassed in their written materials (save briefly and without reference to Pereira by the Respondents), as to whether in the light of Pereira the appeal should be entertained at all.[18]Mr. Mason submitted that the appeal should be entertained on its merits. Even if the Appellants were in error, it was not, ipso facto, an abuse to have appealed rather than to have attempted to set aside the order of the Judge. He submitted that there were, in any event, unusual circumstances here, in that the Appellants had been litigants in person, more familiar with the Welsh language than English. Further, the route of appeal conferred no “backdoor” advantages; per contra, adducing evidence not before the Judge may be easier under CPR 39.3 than on an appeal: see, Pereira, per Lloyd LJ, at [82]. Still further, Pereira had not yet been decided when the Appellants opted for an appeal. At all events, a procedural error if one there was, should not prevent justice being done.[19]Mr. Moffat submitted that the right course in this case would have involved the Appellants pursuing an application under CPR 39.3. The fact that the Appellants had been litigants in person did not amount to a “get out of jail card”; ignorance of the law was no defence. The Appellants were neither strangers to litigation nor the CPR. The point as to the Welsh language was unconvincing, given the letters written by the Appellants to the Court, together with their previous appearances in person – when they had not sought to have the proceedings conducted in Welsh. Whatever else, the Appellants had lost the opportunity of setting aside the judgment.[20]In Pereira, Lord Neuberger MR set out six guideline points as to the relationship between applications under CPR 39.3 and appeals; these guidelines would “apply in the great majority of cases” even though it “may well be impossible to lay down rules…which would cover every case”: see, at [36]. Lord Neuberger MR’s first point (at [37]) postulated that where a defendant was seeking a new trial on the ground that she did not attend the trial, then she should “normally” proceed under CPR 39.3, “provided she reasonably believes she can satisfy the three requirements..” of the rule. That was so even if the defendant wished to raise other arguments for attacking the trial Judge’s decision. Lord Neuberger went on to say this (loc cit):
“ If a defendant seeks to appeal without first making a CPR 39.3 application, when she could have made such an application, the appellate court could still entertain her appeal, although particularly following our judgments in this case, it will normally require unusual facts before it should do so.”
Later, however (at [48]), Lord Neuberger MR added the following observation:
“ As pointed out above, my first point does not mean that there is an absolute bar in every case to a defendant seeking to appeal against a decision, when she could first have made a CPR 39.3 application.”
In his judgment (at [78]), Lloyd LJ agreed with Lord Neuberger MR that “the normal course” should be to apply under CPR 39.3 even if there were independent grounds of appeal.[21]In my judgment, the Appellants in the present case ought to have applied under CPR 39.3, rather than pursuing an appeal. This was indeed a paradigm case for a CPR 39.3 application. The principal ground of appeal (Ground I) was entirely focused on the Judge proceeding in the Appellants’ absence; Ground II, at least in part, fell naturally under CPR 39.3. That Ground III was an independent ground does not mean, as explained by both Lord Neuberger MR and Lloyd LJ (supra), that the CPR 39.3 route should not have been pursued – a fortiori given the intrinsic weakness of Ground III.[22]For my part, however, I would nonetheless be minded to entertain the appeal on the merits. My principal reason for reaching this conclusion is simply that the Appellants opted to pursue an appeal – rather than a CPR 39.3 application – prior to Pereira being decided in this Court and the clarification of the relationship between appeals and CPR 39.3 applications. In the circumstances, I do not think that this procedural error should deprive the Appellants of the opportunity of being heard in this Court.[23]Additionally, it is fair to the Appellants to say that they are not seeking any “backdoor” advantages by appealing instead of seeking to have the Judgment set aside; cf., Pereira, at [117]. There is, in particular, no application before us to adduce fresh evidence on the appeal, a course which would have given rise to obvious difficulty, as observed by Lord Neuberger MR in Pereira, at [39]. For completeness, in this regard, the observations of Lloyd LJ at [82] may be noted:
“ Although evidence on the merits will have been put in under CPR 39.3(4), such evidence can only be relied on in support of the appeal against the original order if CPR 52.11(2) and Ladd v Marshall are satisfied. It seems to me inherently unlikely that they would be satisfied in those circumstances because, almost certainly, the evidence could have been adduced at trial if the party in question had attended the trial….”
Building on those dicta, Mr. Mason submitted that it might well be easier to adduce fresh evidence under CPR 39.3 than it would be on appeal, so emphasising that the course followed by the present Appellants conferred no “backdoor” advantages. Suffice to say that it is unnecessary on this appeal to express any view one way or the other on this submission and whether Lloyd LJ’s observations are to be construed as Mr. Mason sought to do.[24]Accordingly, I am of the view that the appeal should be entertained on its merits and I propose to proceed to do so. I would not, however, wish to leave this preliminary question without the following observations: i) It does not at all follow that in subsequent cases the decision (to entertain an appeal when the correct course was to apply by way of CPR 39.3) would be the same (as Lord Neuberger MR observed in Pereira, at [37], in the passage already cited). I take this opportunity of underlining the importance of Pereira in providing guidance for a litigant unhappy with a decision reached in his/her absence. ii) I am firmly of the view that the mere fact that a litigant is a litigant in person (“LIP”) would not, at least ordinarily, constitute an “unusual fact” (within Lord Neuberger MR’s observations in Pereira at [37]), warranting this Court entertaining an appeal when the correct course was to proceed by way of CPR 39.3. It is one thing to make even generous allowances, as the Court invariably does, for LIPs; but there should not be one rule for LIPs and a different rule for those legally represented. iii) There is nothing in the materials before this Court to support the submission that greater familiarity with the Welsh language, rather than English, gave rise to any difficulty in the present case; as Mr. Moffat in effect submitted, the Appellants betrayed ample familiarity with English in their various dealings with the court system. I should add that I am far from saying that a want of familiarity with English would or should, at least ordinarily, constitute an “unusual fact” for present purposes; the scope for abuse would be manifest not to mention the extra costs that would be entailed.

GROUND I

[25](1) Introduction and chronology: It was not in dispute that the Judge had a discretion to proceed in the Appellants’ absence under CPR 39.3(1). Accordingly, the debate here focussed on whether the Judge had been entitled to exercise that discretion.[26]To begin with, it may be noted that there had already been three hearings in the County Court, without the merits of the dispute having been reached. The first, on the 11th September, 2008 was, in the event, used to deal with case management matters. The second, on the 4th February, 2009 was abortive as the Appellants were “snowed in”. The third, on the 29th April, 2009 was again abortive, as, sadly, the First Appellant was unwell (a medical certificate was produced).[27]On the 29th April, 2009, the Judge himself had ordered (“the 29th April order”) that the trial be adjourned and re-listed before him on the 29th and 30th June, 2009. The 29th April order was clear and unambiguous; it was sent to the parties by the Court on the 14th May, 2009. There is no suggestion that it was not received by the Appellants.[28]At around this time the Appellants were seeking judicial review of the County Court proceedings in relation, it would seem, to orders as to the expert evidence. On the 22nd October, 2008, HHJ Pelling QC, sitting as a Judge of the High Court, refused, on the papers, the application for judicial review together with an application for a stay of the County Court proceedings. Following an oral hearing, the Appellants’ renewed application was refused by HHJ Curran QC, sitting as a Deputy Judge of the High Court, on the 18th March, 2009. Thereafter, on the 3rd April, 2009, the Judge ordered that the trial of the counterclaim should remain listed on the 29th April, 2009. In the event, that hearing had to be vacated (see above) and, as appears from the Civil Appeals Office letter dated 26th May, 2009, the Appellants sought to appeal to this Court and “a stay of execution”. There is no suggestion whatever in this letter from the Civil Appeals Office that any stay of the County Court proceedings had been granted; the letter simply records that the Appellants had filed a notice seeking permission to appeal, together with other orders and drew the Appellants’ attention to the need to file their documents by the 9th June, 2009.[29]In response to a letter from the Appellants to the County Court dated 26th May, 2009 (a letter not in the Bundles before us), by letter dated 9th June, 2009 (“the 9th June letter”), a Mrs. Hammond from the County Court wrote as follows to the Appellants:
“ Your letter dated 26 May 2009 has been referred to HHJ Gareth Jones QC who states: ‘The document identified is an appeal notice and not a court order for stay. The provisions of the order made on 29 April 2009 remain in force’. ”
It appears (see below) that the Appellants’ letter of the 26th May enclosed the notice seeking (inter alia) permission to appeal to the Court of Appeal – i.e., the same notice to which reference was made in the Civil Appeals Office letter of the 26th May, 2009.[30]On the face of the 9th June letter there was a manuscript note which read “c/s first class post” and then either – the note is not easy to read – “7/6/09” or “9/6/09”. The Appellants deny receiving the 9th June letter. Mr. Mason submitted that the note read “7/6/09”, i.e., before the date of the letter and suggested that the letter may never have been posted.[31]I am, with respect, wholly unable to accept Mr. Mason’s submissions as to the manuscript annotation of the 9th June letter, together with the suggestion that the letter was not posted. i) The 9th June letter is most unusual. To my mind, it was prompted by the Judge’s determination to dispel any suggestion that there had been a stay of execution and to reiterate that the provisions of the 29th April order remained in force – so that the trial of the counterclaim would proceed on the 29th June. By this stage, the Judge was well apprised of these proceedings. He had already made the order of the 3rd April and the 29th April order (see above). It may well have appeared to the Judge that the Appellants were searching for an excuse to put off the evil day. I regard it as most improbable that court officials would have failed to post an unusual letter of this nature, specifically commissioned by the Judge. ii) Given that the letter was dated 9th June, I would be minded to resolve the doubt as to the manuscript annotation by reading it as “9th June” – an inherently more likely conclusion, justified by a permissible reading of the unclear writing on the document. If right, it disposes at once of these submissions advanced by Mr. Mason. iii) But even if my reading of the manuscript note is wrong, so that it did read “7th June”, it does not seem to me that the point advances the Appellants’ case. All that it then reveals is that whoever made the note erred as to the date of the posting. It does not go further and cast doubt on the fact of posting. It does not do that in terms and there is no basis for inferring that the fact of posting should be called into question – for the reason I have already sought to give. Additionally, we were told by Mr. Moffat (who appeared before the Judge on the 29th June, 2009) that the question of “9th” or “7th” June was considered by the Judge on that occasion; plainly it gave rise to no doubts on the part of the Judge that the letter had been posted. iv) For my part, I conclude without hesitation that the 9th June letter was posted to the Appellants, most probably on that day.[32]It is convenient to defer, briefly, consideration of the Appellants’ denial that the 9th June letter was received by them. For the moment it suffices to note that the letter was not returned undelivered.[33]On the 15th June, 2009, the Appellants wrote to the County Court (“the 15th June letter”), enclosing the letter from the Civil Appeals Office letter of 26th May, 2009. The 15th June letter treated that Civils Appeals Office letter as having granted a stay and concluded by saying “after the appeals are finished, we require 21 days notice of the final hearing”. No mention was made in the 15th June letter of the 9th June letter. The 15th June letter was before the Judge when he took the decision to proceed with the hearing in the absence of the Appellants.[34]In passing, the 15th June letter refers to the Appellants’ “appeal notice” having been sent to the County Court on the 26th May; it is this reference which leads to the conclusion already expressed that the 26th May letter from the Appellants, which prompted the (Judge’s) 9th June letter, enclosed that notice of appeal.[35](2) Discussion: In my judgment, the Judge was amply entitled, in the exercise of his discretion, to proceed on the 29th June, 2009 in the absence of the Appellants. My reasons follow.[36]First, the Judge was entitled to conclude that the Appellants were aware of the 29th June hearing but had chosen not to attend it. In causing the 9th June letter to be written, the Judge had done all he reasonably could have done to reiterate that the 29th June hearing was going ahead. The 9th June letter was posted, as I have held. As the letter was not returned undelivered, the Judge was entitled to assume that it had been received by the Appellants.[37]Secondly, I find myself unable to accept the Appellants’ denial that they did receive the 9th June letter. There is nothing inconsistent between this conclusion and the acknowledgment that the Appellants had thus far pugnaciously contested the litigation. The Appellants’ stance, with all respect, was unfocussed, extending to persistent and confused applications for judicial review; it strikes me as entirely probable that they (or, more precisely and likely, the First Appellant) had chosen to rely on the self-induced and wholly misguided view that the Civil Appeals Office letter of 26th May, 2009 had granted a stay. It is to be underlined that there is nothing whatever in the Civil Appeals Office letter of 26th May which begins to suggest that a stay of any description had been granted. It is perhaps not irrelevant – though I do not in any way rest my decision on it – that an extended civil restraint order was (subsequently) made against the First Appellant on 16th November, 2010.[38]Thirdly, even if I am wrong and the Appellants did not receive the 9th June letter, it makes no difference. On that footing, matters rested with the 29th April order, providing that the 29th June hearing was going ahead. Though, with respect, it is to his credit that the Judge caused the 9th June letter to be written, he was not obliged to do so. An order had been made; it stood until set aside; all parties and the Court were entitled and obliged to proceed on that footing. As explained, nothing in the 26th May Civil Appeals Office letter could reasonably have been read as casting doubt upon it.[39]Fourthly, as it seems to me on all the correspondence, in particular the Appellants’ fax of 3rd September, 2009, the Appellants’ complaint comes to this: the submission that the County Court was duty bound to answer the 15th June letter. In my view, the Court was emphatically not bound to respond to that letter; the position was already clear, whether from the 9th June letter or the 29th April order or both, that the hearing was fixed to proceed on the 29th June. The Court was not in any sense obliged to enter into correspondence to discuss the matter further. If the Appellants had any doubts they should have attended Court on the 29th June and raised them at the hearing.[40]Fifthly, as to policy, it is of course of the first importance that a party is afforded a fair opportunity to present its case to the Judge. It is also, however, of great importance that Judges, as a matter of case management, act robustly to bring cases to a conclusion; in the present context, CPR 39.3 furnishes a safeguard, in the event of mishap. In this case, the Judge – in the paragraphs of the judgment set out above - painstakingly considered the history of the matter before deciding to proceed. Against the background of no less than three previous hearings and without suggesting that the Appellants were to blame for the need for a yet further hearing, it is readily understandable that the Judge would have been anxious to proceed and to resolve the merits of the counterclaim.[41]Pulling the threads together, on the facts of the case, the Judge was entitled to conclude that the Appellants were aware of the hearing on the 29th June and had chosen, without any or proper explanation, not to attend. In such circumstances, I find it impossible to say that the course taken by the Judge was not properly open to him; neither the requirements of natural justice at common law nor Art. 6.1, ECHR, precluded him from doing so. Were it otherwise, a recalcitrant litigant could stymie proceedings. I would dismiss Ground I of the appeal.

GROUND II

[42]As will be recollected, Ground II involves the complaint that, having decided to hear the case in the Appellants’ absence, the Judge failed to ensure that the Appellants’ evidence and case was fully considered. In my judgment, this Ground lacks substance and I would dismiss it for the reasons which follow.[43]First and by way of starting point, the Appellants’ witness statements did not constitute “evidence”. CPR 32.5 provides as follows:
“ Use at trial of witness statements which have been served 32.5 – (1) If – (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts in the statement as hearsay evidence. …… (5) If a party who has served a witness statement does not – (a) call the witness to give evidence at trial; or (b) put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence. ”
As it seems to me, this provision is clear. The Appellants did not attend the trial. They neither called the witnesses who had given statements nor did they put in those statements as hearsay evidence. The Respondents could have adduced the Appellants’ witness statements as evidence but wholly understandably did not do so. Those witness statements thus never became evidence at the trial.[44]Secondly, the Judge was obliged and only obliged to consider evidence. In fact, the Judge did consider the Appellants’ witness statements: see, the judgment, at [12]. It follows that the Judge did more than he was obliged to do; the basis for this complaint by the Appellants thus disappears. There is no duty in our adversarial system to adopt a “wider approach” as Mr. Mason at one point suggested.[45]Thirdly and in any event, there is no reason to doubt what the Judge said at [12] of the judgment. Thus, on any view of the status of the Appellants’ witness statements and the scope of the Judge’s duty to consider materials before him, he had considered those witness statements. There is no requirement on a Judge to set out in any particular manner or at length his views on the evidence of a party who has not attended the hearing. Still less does the fact of a succinct reference to such evidence (a fortiori if it is not “evidence” at all) serve to found a ground of appeal.[46]Fourthly, nothing in Art. 6.1 ECHR or Van de Hurk (supra) at [59] begins to suggest otherwise. What is fair depends, inevitably, on all the circumstances. Here the Judge paid more than adequate regard to the “submissions, arguments and evidence adduced by the parties”: Van de Hurk, loc cit. The point requires no further elaboration.

GROUND III

[47]As already indicated, we did not call upon Mr. Moffat, for the Respondents, to address us on this Ground. We take it very briefly.[48]The sole remaining point under this heading related to the non-compliance of Mr. Evans’ declaration with the mandatory requirements of the PD, in that he did not say that his report was his “true and complete professional opinion”. He did, however, say the following:
“ I understand that my duty in providing written reports and giving evidence is to help the Court and that this duty over-rides any obligation to the party who has engaged me. I confirm that I have complied with my duty. I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct. I have endeavoured to include in my Report those matters which I have knowledge of or which I have been made aware of that might adversely affect the validity of my opinions. I have indicated the sources of all information I have used. I have not, without forming an independent view, included or excluded anything which has been suggested to me by others. I will notify those instructing me immediately and confirm in writing if, for any reason, my existing report requires any correction or qualification. I confirm that I have not entered into any arrangement where the amount of payment of my fees is in any way dependent upon the outcome of the case. I confirm that this report complies with the requirements of the Royal Institution of chartered Surveyors as set out in Surveyors Acting as Expert Witness: Practice Statement. ”
[49]I wish to say nothing to belittle the importance of strict compliance with the PD; experts are of value only if they are non-partisan – and a partisan expert is capable of causing great harm. However, having regard to the declaration made by Mr. Evans, it seems to me that he has substantially complied with the essence of the PD, even if he did not follow the precise wording. In the circumstances, there was no error on the part of the Judge in admitting Mr. Evans’ evidence and, having done so, he was entitled to give the evidence such weight as he thought appropriate.[50]It follows that, in my judgment, Ground III of the appeal fails and that the appeal should be dismissed.

POSTSCRIPT – THE CLAIM FOR AN INJUNCTION

[51]As already outlined the claim for an injunction was sensibly agreed to stand or fall with the substantive appeal. Given that I would dismiss the appeal, the claim for an injunction must fail. There is no reason why the Respondents should be kept out of or prevented from dealing with the moneys to which they are entitled in satisfaction of the judgment debt.

LORD JUSTICE MOORE-BICK:

[52]I agree.

Cited in 15 later judgments

and 6 more of the most senior