Draycott Place RTM Company Ltd v Bordelais [2013] EWHC 1949 (QB)

Case No QB/2013/0149[2013] EWHC 1949 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONVenue HIGH COURT APPEAL CENTRE ROYAL COURTS OF JUSTICEON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTREHHJ TAYLOR DATED 22 FEBRUARY 2013COUNTY COURT CASE NUMBER 1UD18720Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/07/2013
Before
MR JUSTICE SWEENEY
Between
DRAYCOTT PLACE RTM COMPANY LIMITEDClaimant and RespondentMR ANTOINE BORDELAISDefendant and Appellant
Mr Sampson (instructed on a Direct Public Access basis) for AppellantMiss McCormick (instructed by Messrs Teacher Stern) for RespondentHearing Hearing dates: 2 nd July 2013
JudgmentMR JUSTICE SWEENEY :Introduction
[1]By a Notice filed on 18 March 2013 the Appellant sought permission (out of time) to appeal against an Order made by Her Honour Judge Taylor in the Central London County Court on 22 February 2013, in which she: i) Set aside an Order made by His Honour Judge Saggerson on 18 December 2012. ii) Ordered the Appellant to pay costs, summarily assessed at £4,800, within 28 days; and iii) Made a declaration that the Appellant’s application for permission to appeal against an Order made by District Judge Fine on 11 July 2012 stood dismissed.[2]By the same Notice the Appellant also sought a stay of execution and permission to rely on further evidence that was not before Judge Taylor on 22 February – namely two letters sent by the Respondent to the Central London County Court on 22 and 30 October 2012.[3]On 17 June 2013 Lewis J ordered that the application for permission to bring the appeal out of time and, subject to such permission being granted, for permission to appeal and to adduce further evidence should be heard before a High Court Judge on a date to be fixed. In the meanwhile he stayed the Orders made on 11 July 2012 and 22 February 2013.[4]I heard the applications, inter partes, on 2 July 2013. At the conclusion of the hearing I granted the application for permission to bring the application out of time, but refused the application for permission to appeal – concluding that it was wholly without merit. The other applications and the stay thus fell away.[5]These are my reasons, in outline, for those conclusions.

Background

[6]In July 2011 the Respondent issued proceedings in the Central London County Court claiming loss and damage arising from legal costs incurred in other proceedings pursued by the Appellant in breach of his duties as a Director of the Respondent.[7]On 11 October 2011 the Respondent obtained judgment in default – no Defence having been filed. On 16 January 2012 the Appellant applied to set aside the default judgment.[8]On 18 January 2012 Deputy District Judge McCormack ordered the Appellant to provide a valid address for service by 4 p.m. on 25 January 2012. The Appellant failed to comply with the Order.[9]On 9 March 2012 District Judge Lightman extended time for compliance, ordering the Appellant to provide a valid address for service by 4 p.m. on 28 March 2012.[10]On 3 April 2012, taking the view that the Appellant had failed to comply with the Order made on 9 March 2012, District Judge Lightman debarred the Appellant from defending the case. Two days later the Appellant applied to set aside that Order.[11]On 11 July 2012, at the conclusion of a hearing during which counsel appeared on both sides, District Judge Fine dismissed the Appellant’s applications of 16 January 2012 (to set aside the default judgment) and 5 April 2012 (to set aside the debarring Order); refused an oral application for relief from sanction; refused permission to appeal; and ordered the Appellant to pay £8,225 in satisfaction of the claim, together with costs assessed at £10,230.[12]On 12 July 2012 the Appellant requested a transcript of the proceedings on 11 July, and on 1 August 2012 he applied for permission to appeal against District Judge Fine’s Orders. The Grounds of Appeal, which were supported by a seven page Skeleton, were to the effect that: i) The Judge did not consider all the relevant facts and erred in the weight applied to the evidence. ii) The Judge denied the Appellant natural justice in refusing to admit evidence. iii) The Appellant’s position was prejudiced by an administrative error. iv) The Appellant had been denied a fair hearing and the Orders were disproportionate.[13]On 22 August 2012 the application for permission to appeal was considered, on the papers, by His Honour

Judge Carr who made an Order in the following terms:

“(1) The Grounds of Appeal fail to identify any error of law made by the District Judge. The orders made were well within the ambit of legitimate judicial discretion and are not susceptible to appeal. The Defendant is asking the Court to substitute its own view of the evidence and its own discretion for that of the District Judge that is not a proper basis for an appeal. There being no reasonable prospects of success and not (sic) other compelling reason advanced this application for permission to appeal is refused. (2) Because this Order has been made by the Court without considering representations by the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must give written notice of the same to arrive within seven days of service of this Order. In the event that any such application is made the Defendant shall obtain a transcript of the judgment being appealed and lodge and serve the same within 2 months of the making of the application. In the event they fail so to do, the renewed application for permission to appeal shall be dismissed forthwith. (3) There be no order as to costs.”
[14]On 31 August 2012 the Appellant applied to set aside the Order of 22 August and for his application for permission to appeal be heard at the first available date – upon the grounds that the Order was made without representation of the parties; that evidence in support of the application was not made available to the judge; and that the transcript of the judgment of District Judge Fine on 11 July 2012 had not been available for the judge to consider.[15]Nevertheless, and critically, in view of Judge Carr’s Order of 22 August, it was incumbent on the Appellant to lodge and serve the transcript of District Judge Fine’s judgment of 11 July by the end of October 2012 - otherwise his renewed application would automatically be dismissed.[16]The Appellant’s application of 31 August 2012 was listed before His Honour Judge Freeland QC on 28 September 2012. However, neither side was warned, and thus neither attended.[17]On 3 October 2012 the Appellant wrote to the Court indicating that the transcript was not yet available, and that the Court Office had advised him that it may not be released within the 2 months required by the Order of 22 August. He indicated that he would provide it as soon as it was available, and requested that the hearing be re-scheduled for the first available date after the transcript had been released.[18]On 8 October 2012 the Respondent wrote to the transcribers indicating that it understood that the Appellant had obtained transcripts in relation to the hearings on 18 January 2012 and 11 July 2012 and indicated that it would be grateful to be provided with copies.[19]On 22 October 2012 the Respondent wrote to the Central London County Court inviting the Court not to list the Appellant’s application for permission to appeal in the instant case until after the hearing in another action between the parties in which a similar dispute as to whether the Appellant had provided a valid address or service was to be resolved, although, at that stage, the date of that hearing was unknown. The Appellant was not copied in.[20]On 24 October 2012 the transcribers emailed the Respondent to indicate that there was a problem. They said that the Appellant had paid a deposit, but not the full amount, for the transcript of the proceedings on 11 July 2012, and that he had then pointed out that, given the Respondent’s interest in the same transcript and the transcribers’ terms and conditions of business, the Respondent should pay half of the relevant cost.[21]On 30 October 2012 the Respondent wrote to the Appellant to point out that he had not, as required by the Order of 22 August 2012, filed the transcript of the judgment on 11 July 2012, and that thus the Respondent regarded the application for permission to appeal as being dismissed, and intended to enforce the Order of 11 July 2012.[22]Also on 30 October 2012, the Respondent wrote to the Central London County Court seeking an Order dismissing the Appellant’s application for permission to appeal because of the failure to comply with the Order of 22 August 2012. Again, the Appellant was not copied in.[23]On 2 November 2012 the Appellant wrote to the Respondent indicating that the transcribers had only recently indicated that the transcript had been completed and asserting, amongst other things, that the Respondent had deliberately blocked the release of the transcript hitherto.[24]On 5 November 2012 the Appellant wrote to the Court, enclosing a copy of his letter of 3 October 2012, and claiming (amongst other things) that it was because of the Respondent’s conduct that he was unable to comply with the Order of 22 August 2012 to provide the court with a copy of the Judgment Transcript within two months. He sought an extension of time “…until such time as the Claimant has paid its fee and the transcripts are released”.[25]Also on 5 November 2012 the Respondent wrote to the transcribers indicating that it only needed a copy of the transcript relating to the proceedings on 18 January 2012.[26]On 7 November 2012 the Appellant wrote again to the Court. He stated that, as per the Order of 22 August 2012, he was providing the Court with a copy of the Judgment Transcript. He again asserted, amongst other things, that the delay in the release of the transcript had been caused by the Respondent’s conduct. The Appellant sought a hearing at the earliest convenient date from 17 December 2012 onwards.[27]On 18 December 2012 His Honour

Judge Saggerson made an Order, on the papers, in the following terms:

“Before District Judge Saggerson sitting at Central London County Court, 26 Park Crescent, London, W1N 4HT. IT IS ORDERED THAT 1. The Grounds of Appeal fail to identify an error of law made by the District Judge. The orders made were well within the ambit of legitimate judicial discretion and are not susceptible to appeal. The Defendant is asking the Court to substitute its own view of the evidence and its own discretion for that of the District Judge. That is not a proper basis for appeal. There being no reasonable prospects of success and no other compelling reason advanced this application for permission to appeal is refused. 2. Because this Order has been made by the court without considering representations by the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must give written notice of the same to arrive within seven days of service of this Order. In the event that any such application is made the Defendant shall obtain a transcript of the judgment being appealed and lodge and serve the same within 2 months of the making of the application. In the event they fail so to do, the renewed application for permission to appeal shall be dismissed forthwith. 3. There be no order as to costs.”

IT IS ORDERED THAT

[28]It will be obvious to the reader that Judge Saggerson’s title was wrongly recorded, and that the body of the Order was effectively in identical terms to the Order by Judge Carr on 22 August 2012, and that it thus failed to reflect the events since that date – including the actual provision of the relevant transcript by the Appellant some 5 - 6 weeks before.[29]On 3 January 2013 the Respondent applied to set aside the Order of 18 December 2012 and for the dismissal of the Appellant’s renewed application for permission to appeal the Order of 11 July 2012 in the light of his failure to comply with the provision of a transcript within the time permitted by the Order of 22 August 2012.[30]On 8 January 2013 the Appellant also applied for Judge Saggerson’s Order of 18 December 2012 to be set aside, and for his application of 1 August 2012 (for permission to appeal against the Order of 11 July 2012) to be heard.[31]On 10 January 2013 the Court gave notice that the Respondent’s application of 3 January 2013 would be heard on 22 February 2013.[32]On 6 February 2013 the Appellant applied for the hearing of 22 February to be vacated until after his application of 8 January 2013 had been heard.[33]In the period between 14 – 21 February 2013 there was correspondence between the parties and with the Court during the course of which, amongst other things, the Appellant put in Additional Grounds in relation to his application for permission to appeal. A substantial Hearing Bundle was filed – which did not include the Respondent’s letters to the Court dated 22 and 30 October 2012 (which, it will be recalled, had not been copied to the Appellant).[34]At the hearing Her Honour Judge Taylor on 22 February 2013 both sides were represented by counsel. It is common ground that the Court File was available to the Judge at the hearing. Due to a fault in the recording system, there is no transcript of the proceedings and thus no transcript of the Judgment. However, counsel in the application before me were largely able to agree a summary of the Judgment, and the Judge has provided a copy of her (albeit unfiled) Order. I have already set out the substance of the Order in paragraph 1 above.[35]Following discussion with a member of the Court staff on 25 February 2013 the Appellant discovered the existence, on the Court File, of the Respondent’s letters to the Court dated 22 and 30 October 2012. These had not been referred to, whether directly or indirectly, during the hearing on 22 February 2013.[36]On 11 March 2013 the Respondent provided copies of those letters to the Appellant.[37]On Friday 15 March 2013, which was the last day available to do so, the Appellant made attempts to lodge an appeal against Judge Taylor’s Order of 22 February 2013, but failed to do so. The application for permission was however lodged, one day out of time, on Monday 18 March 2013.[38]As indicated in paragraphs 1 and 2 above, the Appellant sought permission (out of time) to appeal against the Order, a stay of execution, and permission to rely on new evidence – namely the Respondent’s letters of 22 and 30 October 2013.[39]Two Grounds of Appeal were relied upon, namely (in broad terms) that: i) The judge was wrong to conclude that, when he made his Order on 18 December 2012, Judge Saggerson was not (or could not have been) aware of the Order of Judge Carr made on 22 August 2012. ii) Judge Taylor was wrong not to have considered the Appellant’s substantive application for permission to appeal against the Order of 11 July 2012, and was wrong not to have granted permission to appeal.[40]Since mid March 2013 both sides have been in contact with the Central London County Court and have received different answers as to what was, or was likely to have been, before Judge Saggerson when he made his Order on 18 December 2012.[41]On 29 May 2013 Deputy District Judge Cohen made a Third Party Debt Order in the sum of £18,455 which the Appellant has paid. The monies are held by the Court Funds Office.[42]As to the other action between the parties, the valid service address issue has been the subject of pragmatic solution by District Judge Parfitt. It is not necessary to go into the detail.

The Appellant’s Case

[43]On the Appellant’s behalf Mr Sampson concentrated, rightly in my view, on the Appellant’s first Ground.[44]Whilst acknowledging, again rightly in my view, that it was the Appellant’s responsibility, whatever the attitude of the Respondent was as to payment, to comply with the Order of 22 July 2012 in relation to the provision of a transcript, and that the issue arising in the appeal was a narrow one, Mr Sampson submitted, amongst other things, that it is arguable that: i) The Court File must have been before Judge Saggerson when he made his Order. ii) Even the most cursory examination of the file would have revealed the existence of the Order of 22 August 2012 – whether directly or via the numerous items of correspondence etc after that date which made reference to it. iii) Had Judge Taylor’s attention been specifically drawn by the Respondent, as it should have been, to the Respondent’s letters of 22 and 30 October 2012, of which the Appellant was then unaware, but which were undoubtedly in the Court File on 18 December 2012, it would have been even more obvious that Judge Saggerson must have appreciated the existence of the Order of 22 August 2012 when he made his own Order.[45]Hence, Mr Sampson argued, there was a realistic prospect of the appeal succeeding upon the basis that Judge Taylor should have concluded that Judge Saggerson was aware of the Order made by Judge Carr on 22 August 2012 and must have intended that his own order should supersede that of Judge Carr, and that therefore the Appellant had complied with the applicable Order, had therefore filed the transcript in time, and thus Judge Taylor should have gone on to consider the merits of the Appellant’s substantive application.

The Respondent’s Arguments

[46]On the Respondent’s behalf Miss McCormick conceded that, as the letters of 22 and 30 October 2012 were undoubtedly in the Court File which was before Judge Taylor on 22 February 2013, it was unnecessary for the Appellant to make a fresh evidence application in relation to them.[47]As to the Appellant’s principal arguments, Miss McCormick submitted, amongst other things, that it was obvious that Judge Saggerson was unaware of Judge Carr’s earlier Order given that: i) The Order was expressed in effectively identical pro-forma terms. ii) There was no reference in it to Judge Carr’s earlier Order as would be expected if Judge Saggerson had been aware of it. iii) The Order failed to recognise the fact that both an application for permission to appeal, and the requisite transcript, had already been lodged. iv) It was illogical to give time for things to be done that had already been ordered and done (albeit out of time in relation to the transcript) unless Judge Saggerson was unaware of the earlier Order and the events subsequent to it. v) The logical course, if Judge Saggerson had been aware of Judge Carr’s Order and of the subsequent events, would have been to consider and deal with relief from sanction.[48]Miss McCormick further pointed out that by December 2012 the Court File must have been voluminous. For example, by then, each side had lodged eight witness statements. Thus, although clearly unfortunate, it was understandable that even a number of documents (whether the Order itself and/or subsequent documents referring to it) could be missed. Likewise, she submitted, whilst it would have been better if the Appellant had been copied in on the letters of 22 and 30 October 2012, and that Judge Taylor’s attention had been drawn to them, they were undoubtedly in the Court File before Judge Taylor and even if, in addition, they had been specifically drawn to her attention that could have made no difference to her conclusions.[49]In conclusion, Miss McCormick indicated that the Respondent was neutral as to the application for an extension of time, but opposed the granting of permission to appeal upon the basis that Judge Taylor had reached the only sensible conclusion open to her in relation to Judge Saggerson’s Order and that thus the proposed appeal had no realistic, or indeed any, prospect of success on the narrow issue raised, nor was there any other compelling reason why an appeal should be heard.

My Reasons

[50]It seemed to me, given that the application for permission was only lodged one day out of time, and that no consequential prejudice to the Respondent was suggested, that this was an appropriate case in which to grant the extension of time sought.[51]As Mr Sampson conceded, the issue sought to be raised on appeal is a narrow one.[52]It is clear that the Appellant was well aware of the terms of the Order of 22 August 2012, and that it was his responsibility, and his alone, to ensure that a transcript was provided in time, or that an application was made during the 2 month time period for an extension of time.[53]It is equally clear that the Appellant failed to provide the transcript in time – having also failed to obtain an extension of time.[54]Under the terms of the Order of 22 August 2012 the Appellant’s application for permission to appeal against the Order of 11 July 2012 was thus automatically dismissed.[55]Thus it was that, during the Respondent’s set aside application before Judge Taylor, the Appellant sought to argue that Judge Saggerson’s Order of 18 December 2012 was intended to and did supersede Judge Carr’s Order of 22 August 2012, and that therefore he had complied (albeit in advance) with both the lodging of his application for permission to appeal and the lodging of the Judgment Transcript.[56]As indicated above, Judge Taylor concluded that, when she made her Order, Judge Saggerson was not (or could not have been) aware of Judge Carr’s Order.[57]Being conscious that a refusal of leave would effectively be decisive of the action without the substantive merits ever being explored in evidence, I anxiously considered all the documentation – in particular all the correspondence to the Court in the period between 22 August 2012 and 18 December 2012.[58]However, I was not persuaded that there was any realistic prospect of success in the argument that Judge Taylor was wrong to conclude that Judge Saggerson was not (or could not have been) aware of the Order of Judge Carr. Nor was I persuaded that there was any realistic prospect of success in the argument that if Judge Taylor’s attention had been specifically drawn to the Respondent’s letters of 22 and 30 October 2012 that might have made a difference.[59]On the contrary, I concluded that, even with specific knowledge of the letters, no other sensible conclusion was arguably open to Judge Taylor. It is, quite simply and for the reasons advanced by Miss McCormick obvious that, most unfortunately, Judge Saggerson was not (or could not have been) aware of Judge Carr’s Order. The voluminous nature of the papers (there are some 750 pages before me in this application alone), the proforma nature of the Order, the error in relation to the Judge’s title, and the sheer illogicality of making the Order in the terms that it was made if there was knowledge of Judge Carr’s Order, are all telling.[60]The Appellant’s second Ground, which was not drafted by Mr Sampson, and was only faintly pursued, equally lacked merit.[61]To the extent that he failed to comply with the Order of 22 August 2012 the Appellant was the author of his own misfortune. However painful, he should in my view have faced up to the complete lack of merit in the argument that he has sought to advance on this necessarily narrow application.[62]It was for those outline reasons that I concluded that there was no realistic prospect of success in the proposed appeal; that nor was there any other compelling reason why an appeal should be heard; and that the application was totally without merit.