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CCRTF 99/1043/B2 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE CROYDON COUNTY COURT (HIS HONOUR JUDGE CONNINGSBY QC) Royal Courts of Justice Strand London WC2A 2LL Wednesday 8th December, 1999 B e f o r e: THE MASTER OF THE ROLLS (LORD WOOLF) LORD JUSTICE WALLER LORD JUSTICE MAY ------JAMES CHAPPLE Claimant/Appellant -vDAVID WILLIAMS GUY EMMETT Defendant/Respondent --------(Computer Aided Transcript of the Palantype Notes of Smith Bernal Reporting Limited, 180 Fleet Street, London EC4A 2HD Tel: 0171 421 4040 Official Shorthand Writers to the Court) MR M HALL-SMITH (Instructed by Messrs Bennett Welch & Co, Upper Norwood, London, SE19 1TY) appeared on behalf of the Claimant/Appellant The Respondent did not attend and was not represented.
(As approved by the Court) ©Crown Copyright
The basis of that contention was that Mr Williams was quite unable to pay the £4. Before this court Mr Chapple says that the judge was wrong to set aside the judgment and that he should be reinstated. The second defendant. The chronology of the procedural steps in this action is as follows. 5. Mr Chapple. of a fixed term contract of employment made in March 1996. LORD JUSTICE MAY: This is an appeal by the claimant. 4. Mr Williams has not attended before us. 3. The defendants‟ case was that it was not a fixed term employment but they were entitled to terminate his employment without notice and that there were good grounds for termination. has not appealed and does not feature before us today. He said that the defendants wrongfully terminated his employment on 25 October 1996 without notice. The county court summons having been issued in May 1997. Mr Williams also had an appeal. MR: I will ask Lord Justice May to give the first judgment. Mr Chapple.1. The court has information from solicitors indicating that he no longer wishes to go ahead with his appeal. LORD WOOLF. His ground of appeal was that the judge was wrong to make the order conditional on the payment into court of the £4. Mr Williams. The judge then allowed an appeal by the first defendant. Mr Emmett.000 and that it should have made an unconditional order. The action began by a county court summons and particulars of claim dated 1 May 1997. Mr Chapple said that he was employed to be a showroom manager or salesmen of the defendants in their window and conservatory business for a minimum period from 25 March 1996 to 31 December 1996. 6. claimed damages for what he alleged was the wrongful termination by the defendants. Mr Williams and Mr Emmett. 2. apparently in his favour. He was to receive commission and other payments. with which it was impossible for him to comply. The effect of the judge‟s order was to set aside the judgment in favour of the claimant on condition that Mr Williams paid £4. By that process the claimant. District Judge Brown had dismissed Mr Williams‟ application to set aside a judgment in favour of the claimant for damages to be assessed and costs.000 into court within 28 days. there was something of a defence drafted by solicitors . He claimed damages. The letter says that he no longer wishes to go ahead with the appeal listed for today‟s date. from an order of District Judge Margaret Brown made on 28 November 1998.000 into court and so the judge had made an order. an account and various quantified payments. from the order of His Honour Judge Conningsby QC. made in the Croydon County Court on 14 September 1999. The judge gave permission to both sides to appeal.
For a month or two. In February 1998 there was a request for further and better particulars of the amended defence and counterclaim. On 24 November 1998 District Judge Margaret Brown dismissed the defendants‟ application to set aside judgment. On 2 September 1998 he applied for what was then the third “unless” order requiring the defendants to serve their lists of documents within seven days. The order was made in the absence of the defendants who did not appear. he was erroneously pursuing that route of obtaining relief from the sanction which had been imposed. A defence and counterclaim was then filed and served on 6 October 1997. 10. From his decision today‟s appeal comes before this court. The application to appeal to the circuit judge was not made promptly. They failed to comply with that order and in consequence. It was from that order that Mr Williams appealed to the circuit judge. the holding Defence dated the 28th May 1997 be struck out and the Plaintiff be at liberty to enter judgment forthwith for damages and interest to be assessed. On 29 April 1998 that “unless” order was made requiring them to serve the particulars by 18 May 1998.” 7. On 10 June 1997 Mr Chapple applied for the filing and serving of a fully pleaded defence by the defendants within 7 days.on 20 May 1997. the plaintiff recovered judgment under the terms of the “unless” order against the defendants for damages to be assessed with costs. was that Mr Williams applied to the county court to set aside the judgment on 25 November 1998. Mr Chapple served a list of documents on 18 July 1998. The history of the matter. through to about February 1999. on 28 September 1998. That “unless” order was made on 15 September 1998 requiring the defendants to file their list of documents on or before 25 September 1998. On 9 March 1999 the application erroneously brought to set aside the judgment. On 1 October 1997 there was an “unless” order providing that: “UNLESS the Defendants do file and serve a fully pleaded Defence within 7 days of posting of this order. On 10 March the defendants were ordered to serve those replies. On 4 March there had been a change of solicitors by the defendants. in outline. The particulars were served one day before that date on 17 May 1998. was . On 21 October 1998 the defendants applied for that judgment to be set aside on grounds which included that the application which resulted in the judgment was made out to a different address and gave them little or no time to attend court. On 3 March 1998 Mr Chapple applied for the defendants to file and serve replies to that request within seven days. 8. Meanwhile Mr Chapple was proceeding with his assessment of damages. On 6 April 1998 Mr Chapple applied for an “unless” order requiring the defendants to serve replies to the request for particulars. 9.
15. he accepted that Mr Emmett was away and that Mr Williams was not aware of the notice of the hearing. that Mr Williams was initially acting without legal advice and that he was wrongly told by the County Court office that he should apply to another district judge to reconsider District Brown‟s order. on balance. Mr Chapple submitted that he would be prejudiced if the judge extended time for appealing. but Judge Conningsby said that it was obvious that she thought that the history of the case was bad from the defendant‟s point of view and that there was no satisfactory excuse for his failing to comply with the third of the “unless” orders. 12. but was granted on appeal some time in July 1999. The judge did not regard this as satisfactory but. There was then some further delay by his solicitors who said that they were overworked.9(1)(d) . 13. He had a judgment for £51. first. Mr Williams. It seems that Mr Williams did not file any evidence in support of his application to the district judge to set aside the judgment.dismissed.000 or more which would increase if there was a successful appeal. Mr Williams said that he did not himself see the notice for the hearing in September 1998.000. He then saw solicitors to apply for legal aid. nor on 24 November 1998. He had by then had his damages assessed at £51.000 and costs orders in his favour of £13. On 14 September 1999 His Honour Judge Conningsby made the order which is the subject of the appeal. by the summer of 1998 the defendants were acting in person and had given Mr Emmett‟s address as their address for service. There were outstanding orders for costs against Mr Williams of over £13. It was not until 4 June 1999 that Mr Williams‟ notice of appeal was forwarded to the court. As to the merits of the appeal. 14. Meanwhile Mr Williams‟ application to set aside the statutory demand was dismissed on 16 August 1999. On 25 May 1999 Mr Williams applied for the statutory demand to be set aside.000. On 22 April 1999 Mr Chapple served a statutory demand on Mr Williams. It was accordingly something in the order of ten months after the order of District Judge Brown made in November 1998. 11. The court office returned the papers because there was no court fee and his notice of appeal against the decision of the district judge to the circuit judge was not finally filed until 19 July 1999. The reasons for the delay were. There is no written record of the reasons for District Judge Brown‟s decision on 28 September 1998. but he. He accepted that this notice had gone to Mr Emmett‟s address. was not living there and unfortunately Mr Emmett was away. This was at first refused. Judge Conningsby observed that the appeal before him was a long way out of time and came before him as an application for permission to appeal out of time. The judge considered the submission on behalf of Mr Chapple by reference to Part 3.
The judge then said: 17. He was in danger of being the author of his own misfortune. I don‟t think I would be fair to the Claimant unless he is protected to the extent I have indicated. It is obviously a matter to take into account but is not complete protection. Of this the judge said: “I think there is great force in all of that.000.” . He was inclined to think that some part of the defence was arguable and might have resulted in the claimant receiving substantially less than the amount of the judgment he had obtained. There are already costs of £13. This is unrealistic where the Defendant is Legally Aided. I propose to give some cover for the Claimant for what seems to me to be a substantial part of the further costs if the appeal is allowed and the case is to be fully tried.£30. I asked if he had a house but I was told he was in rented accommodation. In principle this is a case where a significant sum of money should come into the Court.000 be paid.000 so the amount I order is a very small proportion. The judge then turned to the contention that Mr Williams had an arguable defence that the contract was not for a fixed period. Apart from the Legal Aid question I would be thinking of £25. It is said by the Defendant „I can‟t do that‟ because he is Legally Aided and he doesn‟t have any money so if I make that Order he is effectively debarred.000 .” 16. A series of “unless” orders in 1997 and 1998 and then 10 months delay inadequately explained in getting the appeal to Court.of the Civil Procedure Rules that Mr Williams had not given them an adequate explanation for not responding to the notice of the September 1998 hearing. I don‟t think there is any absolute rule that I can‟t order money into Court. I think it appropriate that a sum of £4. He should have realised that there would be communications from the court and that it was not good enough to allow Mr Emmett to go away without proper arrangements being made. 18. firstly to dismiss the appeal if on balance the delay and prejudice to the Claimant outweigh the merits of the Defence. nor to the “unless” order that was made. The question I have to consider where he can‟t pay money is that the Defendant is procedurally at risk but is Legally Aided. The facts as they have emerged show Mr Williams was not doing enough to meet his obligations as a litigant in dealing with the litigation. There is serious delay by the First Defendant. It is said that these might be as much as £5. “In a situation like this the Court has three basic options. The next course is to allow the appeal and give directions to proceed expeditiously and possibly some sanction as to costs. The third course is to provide some protection for the Claimant when allowing the Claim to be revived by requiring the Defendant to bring money into Court.000. My view is that this is the kind of case where money ought to be brought into Court. 19.
22. where the rules direct the court to consider whether the . 24. (5) the judge did not sufficiently regard the overriding objective.20.9 of the Civil Procedure Rules that the judge did not sufficiently consider the history of delay. The time limit under the then County Court Rules was either 5 or 14 days. It is submitted that there was insufficient consideration of the fact that the order which took effect was the third “unless” order. nevertheless. This last submission is on the basis that the list of particular possible circumstances in CPR 3. This ground refers mainly to the delay in bringing the appeal from the district judge and not the delay in making the original application to the district judge. (1) that the application for relief was not made promptly. was to prevent Mr Williams from having any benefit from the relief which the judge decided he should have. It is not necessary to decide whether Rule 13 or 37.9(1) does not include the merits of the case. (4) the judge did not pay sufficient regard to the effect on the claimant of the granting of relief of sanctions. which. The application to Judge Conningsby was for permission to appeal out of time against District Judge Brown‟s order. 28. Mr Williams said that the judge was wrong to impose a condition of a payment into court of £4. (3) Mr Williams did not have a good explanation for failing to comply with the order of 15 September 1998. 23. is not pursued.9(1) of the Civil Procedure Rules. The submission. which deals with the setting aside and varying default judgments. This is in contrast with CPR Part 13. that the application was insufficiently supported by evidence and such as there was the judge found unsatisfactory. But Mr Hall-Smith accepts that in all probability this was not an appeal from a final order and that Judge Conningsby correctly proceeded on the basis of a rehearing. is by reference to Part 3. The case for Mr Chapple was that the judge made no finding that the district judge had exercised her discretion wrongly. (2) the extent of Mr Williams‟ earlier failures to comply with the court orders which had resulted in “unless” orders. as I have said. 25. By his notice of appeal Mr Chapple says that the judge failed to have sufficient regard to the provision of Part 3. 26. By his notice of appeal.000 when that was a condition which Mr Williams was unable to meet. and that he should not have considered the extent to which the defence to Mr Chapple‟s claim was arguable. In particular: 21. as the judge clearly held. 27.6 applied since the delay was so great. it was said. The effect.
and (c) delay in getting legal aid and subsequently getting on with the appeal. 31. and we have not heard detailed oral submissions from Mr Hall-Smith. that Mr Williams said that he had not received the original notice of the hearing in September 1998. In the circumstances where Mr Williams has not appeared. It was suggested in written submissions by counsel then instructed on behalf of Mr Williams on his appeal that the judge should not have set aside the judgment upon a condition which Mr Williams was unable to meet. But my initial view was to reject it. Mr Williams‟ affidavit of 20 May 1999. the first question on Mr Chapple‟s appeal is whether the judge was plainly wrong to grant Mr Williams an extension of time in which to appeal. but were not very persuasive. They were. 33. Counsel‟s written submissions refer to authorities decided before the introduction of the Civil Procedure Rules. not whether to grant relief from sanctions. but his first decision had to be whether to extend time. .it seems to have been a combination of (a) muddle on his part when he was not represented. So far as the substantive merits of the case were concerned. matters of this kind are. 30.9 were relevant to that question. In my judgment. Matters arising under CPR Part 3. and. in my view. 29. thirdly. The court has to consider all the circumstances. that there was something of an explanation for some of his delay . Mr Williams had put forward a defence to the claim which could be right but was not obviously so. The list in Part 3. secondly. first. Questions of extension of time are matters of discretion with which this court will not lightly interfere. Factors in favour of granting the extension existed. to be decided on their own intrinsic merits in the light of the Civil Procedure Rules without extensive reference to previous authorities.9(1) of the CPR is not exhaustive and in an appropriate case the court can and should consider the merits as part of the circumstances. much of which is concerned with his explanations for delay and for not dealing with the “unless” order which resulted in the judgment. it would not be right to reach a formal finding on that submission. (b) initial wrong information from the court staff as to how he should proceed. speaking generally.defendant has a real prospect of successfully defending the claim. merely says on the main issue that Mr Chapple‟s contract was not for a fixed term and that the letter of 23 March 1996 contains no term as to the length of the contract. The affidavit then proceeds to challenge some of the details of Mr Chapple‟s money claims. But the Civil Procedure Rules are a new procedural code with an overriding objective such that. 32.
They included: 35. The factors against granting an extension of time were. In my judgment. 40..and this court should not interfere unless judges can be shown to have exercised their powers in some way which contravenes the relevant principles or are plainly wrong. but Mr Chapple had little prospect of recovering them. the factors against granting the extension far outweigh those in favour of granting it. (1) that the judgment was properly obtained. in my view. although on Mr Hall-Smith‟s present submissions it was probably five days. 38. (6) things had moved on since the judgment was obtained. MR said in the case of Biguzzi: “Judges have to be trusted to exercise the wide discretions which they have fairly and justly in all the circumstances. Taking these matters into account. the notice was properly served. (3) the fact that Mr Williams did not have notice of the September 1998 hearing was Mr Williams‟ own responsibility. (7) Mr Chapple had incurred substantial costs in the proper pursuit of his claim but was faced more than two years after he had issued the claim with having to go back more or less to the beginning all because of delays or other failings of Mr Williams. but he did not make proper arrangements to receive it. in my judgment in this case the factors . Damages had been assessed and a statutory demand had been served and not set aside. determines where in a particular case justice lies. 44.” 45. 41. 42.34. (5) the explanation for the delay was poor. 37. 36. 10 months against a maximum possible period under the rules of 14 days.. 39. Much of those costs would be wasted. by itself. of much greater weight. As Lord Woolf. 43. It is a question of balance and striking the balance is a matter for the discretion of those who have to exercise it. (4) the extension of time required was very substantial. (2) that it was as a result of Mr Williams‟ failure to comply with a third “unless” order. so that there was a history of delay. there will rarely be any one factor which. nevertheless. When the court considers how the overriding objective is to be achieved.
generally speaking. In those circumstances. This was a case where. I mention this only as a factor in reaching my conclusion that the extension of time ought not to have been granted. to order the payment into court. 47. MR: I also agree. LORD JUSTICE WALLER: I agree. so outweighed those in favour of granting it. I have difficulty in thinking that the imposition of that condition in this case was correct. He would probably not have granted the application if he had not felt able. 48. he was faced with the situation where he had to bite the bullet of either granting the application outright or refusing it outright. Respondents‟ appeal dismissed with costs.000 into court. It seems to me that where judges are considering imposing conditions. That was the balance of justice where the application for relief from sanctions would have failed. It seems to me that there is nothing in the material before this court to indicate that that was other than correct. 51.000. If it were necessary to do so. . 50. The technical position is that Mr Williams‟ appeal does not arise for decision whether he was here or not. LORD WOOLF. Mr Williams was legally aided. It was asserted on his behalf that there was no reasonable prospect of him paying £4. although it is not necessary for today‟s decision to reach a concluded view on the subject. 46. 52.against the granting of an extension of time. be reasonably possible for the person upon whom the condition is imposed to comply with it. The judge concentrated more on the question of relief against sanctions than the question of an extension of time. for most of the relevant period and that period before Judge Conningsby. as I think he should not have felt able. Order: Appeal dismissed with costs. For these reasons I would allow Mr Chapple‟s appeal. that I have reached the conclusion that the judge was wrong to grant it. 49. it should. including those which would be relevant to the granting of the relief against the sanctions if the extension of time were granted. One particular reason why I consider that the extension of time ought not to have been granted is that the judge made his order conditional on the payment into court of £4. The consequence of that view is that if the judge perhaps ought not to have made that order. I would find difficulty in supporting this on the facts of this case.
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