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

This, and please bear with me here, was an application for leave to appeal a Circuit Judge’s trial judgment. It was also an application for an injunction to restrain enforcement of the trial judgment, originally made in the High Court. It resulted from a possession claim and disrepair and personal injury counterclaim that had, at some stage, involved a claim for judicial review and an application for permission to appeal the refusal of permission for review. All this out of what should have been a fairly straightforward claim and counterclaim.

The actual appeal deals with non-attendance at trial, the status of expert’s reports that don’t conform with CPR PD 35.3 requirements and the attention to be paid to an absent party’s evidence at trial.

Williams had let a house to Hinton on an assured shorthold tenancy for 6 months in April 2005. In August 2007 W issued a claim for possession. H counterclaimed, alleging disrepair under s.11 Landlord and Tenant Act 1985, s.4 Defective Premises Act 1972 and consequential personal injury. As the claim went on, H left the property so that the possession claim dropped away and the case proceeded on the counterclaim alone.

It is fair to say it did not proceed smoothly. W, in person not represented, defended on the basis that H had abused the property and any personal injury was nothing to do with W’s responsibilities. There were numerous abortive hearings, and a directions hearing in April 2009 following W presenting a medical certificate for non-attendance. There was also, somewhat astonishingly, an application for judicial review of the proceedings of the claim by W, issued in September 2008. That was refused in October 2008 and a renewed application for permission went to the High Court. This was apparently refused, but didn’t stop W sending to the County Court what was claimed to be an order of stay of execution (although of what as there had been no trial yet is not clear). This wasn’t actually a stay of execution. As the trial Judge noted:

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

This was in the context of the trial judge deciding to go ahead with the trial that had been listed for 29 June 2009. W had been notified of the hearing, but failed to attend. The Judge decided to go ahead in their absence as it was without explanation, there were no outstanding applications or stay orders.

The judge referred to witness statements by the Ws and three witnesses. He considered the Hs’ witness evidence, verified on oath at the hearing, and the report of a ‘single joint expert’, a surveyor and medical evidence on the injury alleged. He found breach of the repairing duty under s.11 and further that the personal injury was consequential. Damages plus interest of £12,096.71 were awarded, and costs to the Hs.

It was enforcement of this damages and costs order that the Ws sought to stay. But this was secondary to the appeal.

The Ws grounds of appeal were:

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”)

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”)

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”)

They sought an order under 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.

On ground I, the Ws (now represented) argued that the Judge was wrong to exercise the CPR 39.3(1) discretion to proceed in the Ws absence. The correspondence before the court and the Ws past conduct of the claim should have shown the Judge that the Ws would intend to attend. Mr W had been gravely ill and this was known to the Court.

On ground II, the only reference in the Judgment to the Ws’ evidence was perfunctory and did not suggest a proper consideration. Even if the Ws’ witness statements did not constitute ‘evidence’ for the purposes of CPR 32.5 it was incumbent on the Judge to give it a proper consideration. Article 6 was engaged – pace Van de Hurk:

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……

On ground III, Counsel for the Ws accepted during the hearing that the expert had indeed been appointed as an SJE by the Court. But the declaration was “not strictly in accordance with the prescribed and mandatory form, set out in the PD. The declaration contained in the 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.”

The Court of Appeal held in Gross LJ’s sole judgment:

As a premliminary issue, the Ws had appealed, but had not made an application under CPR 39.3(3) to set aside the Judgment. CPR 39.3(3) reads

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.

The relationship between an appeal and an application under CPR 39.3(3) is not straightforward. It was recently considered in Bank of Scotland v Pereira [2011] EWCA Civ 241 where guidelines were set out.

Following that decision, the present case would appear to be a paradigm example where an application under CPR 39.3(3) should have been made.

The Ws argued that the appeal should still be considered and that it was not an abuse to have appealed rather than applying to set aside and the appeal had been made before Pereira. There were no ‘backdoor’ advantages to an appeal, if anything adducing further evidence would be easier via 39.3(3) and the Ws had been litigants in person.

The Hs argued that being a litigant in person was not a ‘get out’ clause and the Ws were experienced litigants. The Ws should not have appealed and had lost the opportunity to apply to set aside.

Held: This was a paradigm case for a 39.3(3) application. There were no special facts. Grounds I and II of the appeal fell naturally under 39.3 and while ground III didn’t, it was a very weak ground. However, given that the appeal had been made before Pereira had been decided, it would be considered on its merits, rather than procedurally ruled out. However:

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.

On Ground I of the appeal: The Ws had been informed by a letter from the the Judge 3 weeks before the trial date that what they had said was a stay notice was simply a notice of application and of no effect. Although the Ws had subsequently again written to the court about the claimed stay pending appeal, they had been sent clarification that it was no such thing. The Judge had done everything he could to inform the Ws that the hearing was going ahead and the Ws demial of having received the Judge’s letter was not plausible. The Judge was entitled to exercise his discretion to continue in the absence of the Ws. That the Court hadn’t answered the Ws’ letter sent after the Judges’ letter to them was neither here not there. The position was clear.

It was also an issue of policy, that the Court should be able to exercise case management powers robustly to bring a case to its conclusion. “neither the requirements of natural justice at common law nor Art. 6.1, ECHR, precluded [the Judge] from doing so. Were it otherwise, a recalcitrant litigant could stymie proceedings”. Ground I dismissed.

On Ground II: The Ws’ statements did not constitute evidence under CPR 32.5 as witnesses were not present and no hearsay notices had been served. The Judge was only obliged to consider evidence, but had in any event had considered the Ws’ statements and those of their witnesses, doing more than he was obliged to do.

There was no requirement on the Judge to set out in detail his view of the evidence of a party who had not attended, but he clearly had paid it attention.

Nothing in Article 6.1 suggests otherwise. The Judge had paid more than adequate regard to the “submissions, arguments and evidence adduced by the parties”. Ground II dismissed

On Ground III: while the expert had not used the precise phrasing in CPR PD 35, neglecting to say that the report was his “true and complete professional opinion”, there was a substantial declaration that he understood his duty to the Court and of his independence. While strict compliance with the PD was important, the expert’s declaration “substantially complied with the essence of the PD, even if he did not follow the precise wording”. The Judge was therefore not wrong to give weight to his report. Ground III and the appeal dismissed.

As thr appeal fell, so likewise the claim for an injunction preventing enforcement.