Alwad v Khan [2012] EWCA Civ 1236

Case No A2/2011/3154[2012] EWCA Civ 1236
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE CRANSTON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 24 th July 2012
Before
LORD JUSTICE TOULSONSIR ROBIN JACOB
Between
AlwadAppellantKhanRespondent
(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 Tom Goodhead (instructed by Toltops Solicitors) appeared for Appellant.Mr Nicholas O’Brien appeared for Respondent
Judgment

Sir Robin Jacob:

[1]This is an appeal by permission of Arden LJ of judgment and order of Cranston J of 18 November 2011. He refused, in effect, permission to extend time to file a transcript of a judgment sought to be appealed. That judgment was given by Master Leslie on, I think, the 14 July 2011, by which he awarded the respondent damages and interest. The respondent had claims for harassment, libel and aggravated damages together with what were described in the order as specified sums, but in fact I think were contractual sums.[2]The Master had proceeded on the basis that the claimant, Mr Alwad, already had a final judgment in his favour, and all he had to do was assess damages, which he accordingly did. The total sum awarded was, I think, £118,000 odd, broken up into individual amounts under the various heads I have mentioned.[3]I turn to an outline history of the proceedings but only so far as is necessary. They were commenced by Mr Khan, the claimant and respondent to this appeal. The general nature of the claim appears from the re-amended Particulars of Claim which ends with a prayer for relief which includes claims for damages under the heads eventually awarded by the Master as well as claims for injunctions to restrain harassment and publishing defamatory material.[4]It is unnecessary to go into all the details of the early procedural history; I can pick it up with an order of Master Leslie of 20 January 2011. By then the draft re-amended Particulars of Claim had been served and filed for some time. The material parts of the order are paragraphs 3 and 6, which read: "3. a) Defendant to serve a consequently amended Defence and Counterclaim by 4pm on 25th February 2001 and the order of 11th November 2010 is varied accordingly b) For the avoidance of doubt the terms of paragraph 3 of the order of 11th November 2010 apply to paragraph 3a) above mutatis mutandis so that if the Defendant fails to serve then his Defence and Counterclaim will stand struck out and without further order but upon proof of default the Claimant may enter judgment for damages and costs to be assessed.” The significance of that order is that this is not the first time in which an unless order had been made indicating that the would-be appellant had already failed to comply with various court orders.[5]Paragraph 6 of the order went on to say there would be a costs and case management conference at 11am on 24 March 2011, costs budgets and a form H8 to be exchanged by 4pm on 18 March 2011.[6]That costs budget was not filed. A consequence of that was that a default judgment was entered on the question of liability and Master Leslie ordered that there should be an assessment of damages. That assessment of damages took place on, as I indicated, 14 July 2011. The would-be appellant by this time was representing himself. We have a transcript (it is not entirely perfect) of the hearing, and we now have a transcript of the Master's judgment.[7]By a notice of 28 July 2011 the would-be appellant applied first of all for permission to appeal but also applied for a stay of the order. He said that the order was unfair and it was based on a hearing because of language difficulties, neither understood nor followed, “therefore it is a fundamental breach of my human rights to a fair hearing. Cannot see on bases on what the order was made, and (inaudible) reasons for that and relief from sanction referred to was made to CPR 3.9. The premise of the order is flawed and without doubt it should be set aside.”[8]The application for a stay came before Dobbs J on 15 August 2011. She made an order in the following terms:
"ORDER 1. Application for a stay refused. 2. Any further documents including transcript of the judgment (and if relied on) the proceedings to be lodged by 3rd October 2011."
[9]She added the following Observations:
"I am not persuaded to grant a stay. There is no evidence to support the assertions made. The Appellant seems capable of expressing himself in his written submissions. He will need to submit cogent evidence if permission is to be granted."
[10]No transcript was provided. With the assistance of a Mckenzie Friend an application was made before Langstaff J to extend the time for providing the transcript of the judgment of the Master. On 4 November 2011 he ordered:
"1) The applicant is granted a final extension of time until close of business on Friday 11 November 2011 to file a transcript of the judgment of Master Leslie. 2) If the transcript of the judgment of Master Leslie is not filed with the court by close of business on Friday 11 November 2011 this appeal shall be struck out."
[11]On Friday 11 November 2011 an application was made for a further extension of time. That came before Cranston J, who refused it. The consequence was automatic that the appeal was struck out pursuant to the order of Langstaff J.[12]Before us Mr Tom Goodhead, who had only recently been instructed, indeed I think yesterday, argued that Cranston J had failed properly to exercise his discretion to extend time. He argued it on the basis -- and I am prepared that that would be the appropriate basis -- that this was in effect an application for relief from sanctions and that, accordingly, the appropriate rule to apply is Rule 3.9. He says that Cranston J did not seriatim go through all the items enumerated in 3.9 which he suggests the authorities require the court to do. I am far from convinced that Cranston J really failed to take all those matters into consideration, but for present purposes I will assume that perhaps he did not devote as much time as he might have done to one or two of the matters.[13]Before we go into those matters it is important to note that Rule 3.92 says:
"An application for relief must be supported by evidence"
[14]So the real question which we start off with is what evidence was there before Cranston J, and the answer is, very little. He was provided with a letter from the well known firm of shorthand writers, Marten Walsh Cherer, on 8 November 2011. It says:
"I write to confirm that Muhammed Alwad is instructed us to prepare a transcript of this matter and a formal order had been placed via the Cratu Department at the RCJ. I await receipt of the recording in order to enable us to prepare a transcript of this matter. I would estimate that this work will take approximately 5 to 10 working days to complete."
[15]Cranston J seems to have assumed that the instructions were given on that day, namely 8 November 2011. That was perhaps not an unreasonable assumption because one would expect the shorthand writers to say they had been instructed much earlier if that was the position and they were having trouble getting the transcript, or something like that. What is clear is that any ambiguity was not cleared up by any evidence from the would-be appellant. He could have shown, when he first instructed shorthand writers, that there had been difficulties in getting a transcript, and none of those things were done. It must be remembered that Dobbs J had made the order requiring a transcript as long ago as 15 August, which is more than enough time in normal circumstances to get a transcript.[16]I turn back to the requirements of Rule 3.91. The court must consider a) the interests of the administration of justice. Well, Cranston J in his judgment took into account a statement from the respondent explaining the impact on him of Mr Alwad's conduct, including delay. That is part of the administration of justice. It is fair to say that he did not look at the other side of the coin, which is the consequences to the appellant if he were denied the appeal. It is said on his behalf that the sum of £118,000 is a very substantial sum; on the other hand I am not entirely persuaded that given the conduct, which must be assumed given the nature of the default judgment, given the fact that some £40,000 of it represents contractual sums, that the sums awarded were obviously out of order. So if one were to consider the position of the appellant they do not stand as a significant matter.[17]As regards b), whether the application for relief had been made promptly, plainly Cranston J did consider that; c) whether the failure to comply was intentional, well, he had no information one way or the other because no evidence had been provided; all he knew was that Dobbs J had made the original order only three months ago; d) he did not consider the extent to which the party in default has complied with other rules, but if he had done so he would have seen that there were other instances, the one I have drawn attention to particularly of default by the appellant. So that if he had taken that into account it would have been taken into account against him. Mr Goodhead suggested that we should perhaps take into account that the other side had also been in default but that is not what e) requires. f) Whether the failure to comply was caused by the party or his legal representative: well, he did not have a legal representative. Whether or not the failure to comply was caused by the party is a matter to which the party could give evidence about and he did not. g ) Whether the trial date or likely trial date can still be met if relief is granted was irrelevant. The effect on which the failure to comply had on each party, well, as I have said, he took that into account as regards the respondent; there was no evidence as to the effect which the failure to comply had on the appellant; and i) is to much the same effect.[18]Mr Goodhead in the end was submitting that really what should happen here is that the matter should be readmitted for a total renewed application with fresh evidence. That seems to me to be quite contrary to the proper administration of justice. The plain fact is that this appellant had plenty of time to comply with the order of Dobbs J; it came before Cranston J three months later saying “well, I need a few more days”, but he had provided no explanation of what he had done in the preceding three months. It seems to me in those circumstances quite impossible to say that Cranston J exercised his discretion improperly. I accordingly would dismiss this appeal.

Lord Justice Toulson:

[19]Mr Tom Goodhead has come into this case in difficult circumstances and at the last minute. He has said all that could possibly be said on behalf of the appellant. Having considered his submissions, I agree with Sir Robin Jacob that this appeal should be dismissed for the reasons which he has given and to which I cannot add.

Order

Application refused; the appellant to pay Respondent’s cocts assessed at £4,443.54p inclusive of VAT if not agreed.