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Redolent of Improbability

By J

I don’t think there is any significant point of law or practice in Lemas and Sealy v Williams [2009] EWCA Civ 360, but it is a strange case (although one suspects many readers will have been involved in similarly chaotic cases at one stage or another) and worthy of a short note.

Mr & Mrs Lemas were, at one time, the joint registered proprietors of a house, with a mortgage secured in favour of Abbey National. Mr Lemas got into financial difficulties and was made bankrupt. Despite that, Mr Lemas managed to arrange for the sale of the property to Mr Sealy. Before that sale could be completed, Abbey National took possession.

Mr Williams then arrived on the scene. He offered to loan Mrs Lemas sufficient money to prevent the Abbey National from selling the property in return for a 30% stake in the property. This was accepted, £30,000 provided and a registered charge executed in favour of Mr Williams (for £60,000).

It then appears that Mr Williams (and perhaps his girlfriend) were proposing to buy the house from Mr & Mrs Lemas for £250,000, with the intention of then settling it on trust for Mr & Mrs Lemas’ children, and thus, returning the entire beneficial interest to the Lemas family. Moreover, Mr Williams was proposing to borrow £212,500 for the privilege of doing so. A trust deed was prepared to this effect.

The property was duly sold to Mr Williams and the trust established. Mr Williams then rented the property to tenants and, eventually, Mr Lemas entered into occupation of the house. Mr Williams then recovered possession but Mr Lemas broke back in.

Three sets of proceedings were then issued in Bow county court. Mr Lewis and Mr Clarke asserted that they were tenants of the property and that Mr Williams was interfering with their occupation. They claimed that Mr Sealy was their landlord. In the second set of proceedings, Mr Williams issued a claim against Mr Lemas, alleging that Mr Lemas was Mr Sealy. In the third set of proceedings, Mr Williams sought possession against Mr Lewis and Mr Clarke.

The proceedings were consolidated and the case came on for trial before HHJ Hornby in August 2007. In effect, the trial became about who owned the property. Only Mr Williams and Mr Lemas appear to have taken an active stance. Mr Williams contended that he was the owner of the property, but Mr Lemas contended that this was not so or, even if it was so, Mr Lemas was entitled to put tenants into the property.

The trial was “obviously somewhat unsatisfactory” – there had been no disclosure and no agreed bundle. The first day was apparently abandoned and the trial itself concluded over two subsequent days. Mr Lemas started to give evidence but, after lunch, declined to give any further evidence. Mr Williams gave evidence and stated that the property was not to be held on trust for the Lemas children but that someone had added this clause to the trust documentation after the establishment of the trust.

HHJ Hornby agreed and found as a fact that the property had not been included in the trust. Mr Williams was successful and a possession order was granted in his favour.

Mr Lemas sought permission to appeal. He contended that there should be a new trial and that, even if Mr Williams had not made the house subject to the trust, he had always intended that it should be subject to the trust and should be deemed to be subject to the trust. This did not impress their Lordships. Even if (which was contrary to the facts as found by the Judge) there had been an intention to settle the house on trust, this had never been done.

Secondly, Mr Lemas asserted that he had been given too short notice of the hearing. This too was rejected. Mr Lemas had never sought to adjourn the proceedings and had attended all the previous hearings, including the hearing which fixed the trial for August 2007. The fact that the case was difficult was not significant given that Mr Lemas had ample time to seek representation.

The failure to provide disclosure or a bundle was unfortunate, but did not warrant a re-trial. “The case was… in some disorder at the start of the trial… [t]hat is… not uncommon in county court proceedings in which one of the parties is not legally represented” and could not justify further adjournments.

The only point of any substance was that Mr Lemas suggested that the Judge had not taken account of the care that Mr Lemas wanted to put. That case was that Mr Williams was not the owner but had been a front man for the real purchaser, Mr Sealy. The problem for Mr Lemas is that he had not put this point to Mr Williams at any stage, despite being given ample opportunities to do so. Whilst a Judge will, of course, do what he can to assist a litigant in person, he cannot make his case for him or give advice as to how to prove his case.

Mr Sealy also applied for permission to appeal. He contended that he had never been served with the proceedings. That was, as the Court of Appeal noted, not quite the full picture. He plainly knew something of the proceedings as he had instructed solicitors at an early stage and had even applied to strike out part of the proceedings. It was, of course, a discretionary matter as to whether or not a judgment was set aside and in the present case, it was not appropriate for the Court of Appeal to deal with that matter. It should be dealt with first in the county court.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.



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