Well I wouldn’t start from here*

Davis Solicitors LLP v Raja & Anor [2015] EWHC 519 (QB)

A cautionary tale on how, when things go badly wrong, it is, by and large, better not to take active steps to make them worse.

Davis Solicitors LLP (a sole practitioner practice run by Nancy Ballard, who appeared for the claimant) had acted for the Defendants, Raja and Riaz, in a disrepair claim relating a boiler in the property in which they were tenants.

It appears that the claim was not particularly well dealt with, because when Davis made a claim for fees of £2,970 plus interest and costs, the Defendants counterclaimed for damages for consequential losses incurred as a result of the alleged breach of duty and negligence of the Claimant. And won, at a one and a half day trial. They were awarded £6590 plus costs and interest, with the total judgment sum against the Claimant being £21,613.08 to be paid by 28 February 2014. The Deputy District Judge’s judgment found

“It is difficult to conceive of a worse case in relation to poor service and a breach of the implied term in relation to reasonable skill and care.

The work undertaken by this Claimant has been shoddy, has failed to consider or make an assessment of the case as it developed, has failed to advise or have regard to the fact that the Defendants were not indigenous to England and their knowledge of the law and customs was challenging to them. Above all the Claimant has been negligent. I am satisfied to the requisite standard of proof.”

The Claimant, via Ms Ballard, filed a notice of appeal, seeking permission to appeal. On 11 February 2014 HHJ Wulwik at Central London County Court granted a stay of execution and ordered the Claimant to file a transcript of the hearing before the DDJ. Then on 3 March 2014 HHJ Wulwik ordered the Claimant to file a skeleton argument and appeal bundle by 17 March, with a unless order striking out the appeal and discharging the stay of execution in default.

On 31 March 2014, following a letter form the Defendants, and noting that a skeleton argument had been filed on 17 March, but no appeal bundle in accordance with CPR PD 52B.6, HHJ Wulwik struck out the application and discharged the stay. The Claimant wrote complaining that “This is extremely unfair and concerning when the appeal bundle was filed with the Court on the 31st December 2013. The bundle consisted of the full papers in the Trial bundles.”

The Court’s response was that a) there was no trace of a bundle filed on 31 December 2013 [To be fair, it has to be said that this will not necessarily surprise many users of CCLC at that time.], b) Filing the original trial bundle would anyway not have complied with the requirements of CPR Practice Direction 52B.6 at 6.4. The Claimant must make such application as it saw fit.

Davis applied for relief from sanctions. This was dismissed by HHJ Mitchell on 1 August 2014 on the basis that 1) no appeal bundle had been served on the Defendants, 2) no CPR PD 52 compliant bundle had been filed with the Court and in fact still hadn’t been.

this is not a trivial breach. It could have been remedied by filing an appellant bundle, with the application for relief from sanctions and I would almost certainly have granted relief. But the case has just wandered on without that having been done and I am being faced with having to rummage through the papers to try and make sense of what is being said.

HHJ Mitchell also observed that the merits of the appeal did not seem at all strong.

Davis then filed a notice of appeal to the Court of Appeal. On oral permission hearing, Davis’ grounds were:

i) the breach was not significant;

ii) but for the Defendants’ solicitor sending a letter dating 19 March 2014 to Judge Wulwik contending that the Claimant had not complied with his order, the judge would not have struck out the Claimant’s appeal. The Defendants’ action in this regard was “opportunistic” (per judgment in Denton at para 40);

iii) the judge erred in considering the merits of the appeal.

It would be fair to say this did not go well. At all or in any respect.

On the insignificance of the breach, the Court of Appeal is forthright on the requirements for an appeal bundle:

Paragraph 6.3 of PD 52B requires an appeal bundle, paginated and indexed, to be filed as soon as practicable, but in any event within 35 days of the filing of the Appellant’s Notice, which in this case was by 4 February 2014. Paragraph 6.4 identifies the documents that must be included in the appeal bundle and the documents that should also be considered for inclusion. Not only did the Claimant fail to comply with the Practice Direction, but Ms Ballard ignored the ‘unless’ order of Judge Wulwik of 3 March 2014 relating to the lodging of an appeal bundle. She made no application to set aside the ‘unless’ order. It was only after the order of 31 March 2014 striking out the appeal that she wrote to the court. In fact, as Mr Dean, for the Defendants, observes it was not strictly necessary for the judge to make the order of 31 March 2014 as the Claimant’s failure to lodge an appeal bundle by 4pm on 17 March 2014 would have resulted in the appeal being struck out without further order, pursuant to the terms of the order of 3 March 2014.

Ms Ballard’s explanation for not having even filed the appeal bundle before the hearing of the application for relief from sanctions also went down badly:

she states that the reason she made no attempt to correct the breach or even to serve an appeal bundle before the hearing before Judge Mitchell was because she did not think that filing an appeal bundle would assist. She thought, she says, that what was important was to make an application for relief from sanctions as promptly as possible. She stated that she thought it was only necessary to have an appeal bundle once permission has been granted. She did not appear to appreciate the need for applications for permission to appeal to be presented in accordance with the rules so as to ensure the effective management of the appeal process at the permission stage.

And apparently, Davis had still not actually filed a compliant appeal bundle.

Ms Ballard made the point before Judge Mitchell, in her grounds of appeal (para 9) and in her written submissions to this court (para 2), that the Claimant was not in breach of PD 52B 6.5. This is correct, however it illustrates her failure to appreciate the importance of complying with PD 52B 6.3 and 6.4. Even now Ms Ballard has produced an incomplete and not properly paginated “Appeal Bundle”. I can well understand the difficulties that Judge Wulwik and Judge Mitchell must have encountered when dealing with this case in the absence of any appeal bundle.

The breach was serious and significant. Ms Ballard’s attempt to explain continuing non-compliance “indicate a continuing lack of understanding of the importance of the rules.”

The idea that the Defendants had pounced opportunistically was dismissed, as the order of 3 March 2014 had resulted in an automatic strike out when the Claimant failed to comply. In any event, the order of 31 March 2014 didn’t rely on the Defendant’s letter.

And having considered the grounds of appeal, HHJ Mitchell was “plainly entitled to form the view that the merits of the appeal “do not seem to be very strong”

Appeal dismissed.

Comment
So what lessons to draw from this?

  1. Don’t mess up a disrepair claim so badly you end up owing your clients £20K in a judgment debt.

  2. If you have ignored 1. then make sure you have filed a CPR PD 52B 6 compliant appeal bundle within 35 days of the notice of appeal (or got extensions from the court if needed).

  3. If you have ignored 2. don’t ignore any unless orders and file the compliant bundle in time. Really.

  4. If you have overlooked 3. and are applying for relief from sanctions, file the compliant appeal bundle. No, really, really this time.

  5. If 4. escaped you and you are seeking permission to appeal from the Court of Appeal, make sure the appeal bundle for the Court of Appeal is CPR PD 52B 6 compliant. Given that this is the issue in your appeal.

  6. Oh, and have grounds of appeal at stages 2, 4 and 5 that actually have some perceivable merit and address the relevant bits of the judgment against you.

 

*the old joke of a local being asked for directions to X by a tourist and getting the reply ‘Well I wouldn’t start from here’.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Disrepair, Housing law - All and tagged , .

5 Comments

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