Avinue Ltd v Sunrule Ltd
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE ARDEN,LORD JUSTICE DYSON,Lady Justice Arden |
| Judgment Date | 26 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1942 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2003/1426 |
| Date | 26 November 2003 |
[2003] EWCA Civ 1942
Lady Justice Arden
Lord Justice Dyson
B1/2003/1426
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE MEDAWAR QC)
Royal Courts of Justice
Strand
London, WC2
MR J BOYD (DIRECTOR) appeared in person.
MR R BURGESS appeared on behalf of the Respondent
This is an adjourned application for permission to appeal, with the appeal to follow if permission is granted, pursuant to the order of Waller LJ dated 11 September 2003. The appellant ("Sunrule") seeks to appeal from the order of His Honour Judge Medawar QC dated 12 June 2003 dismissing the appellant's appeal from the order of District Judge Silverman dated 4 March 2003. The appellant seeks to adduce oral evidence on the appeal, but that part of the application has not been pursued.
By his order, District Judge Silverman entered judgment against Sunrule in favour of the respondent ("Avinue") in the sum of £3,963.97, with costs of £195, making a total of £4,058.97. He also dismissed Sunrule's counterclaim. The order was made following a trial on the fast track. This is a small claims case.
At the trial Mr Dimopoulos, the then sole director of Sunrule, sought permission for Mr John Boyd to represent Sunrule. The district judge refused permission on the grounds that in the fast track lay representatives can assist the court but cannot act as advocates. Mr Boyd was neither a director nor an employee of Sunrule. Avinue was also represented by Grossobel, a director of Avinue, assisted by a lay person, Mr Coy.
The Background Facts
Avinue sold leather goods, in particular leather jackets, for men and women. Sunrule is a retailer. Avinue claimed that it had delivered leather goods to Sunrule for which they had not paid. Mr Dimopoulos was prepared to pay for any item for which there was a delivery note. Unfortunately for Avinue it did not have signed delivery notes in relation to all the goods it claimed were delivered to Sunrule. The actual deliveries were carried out by Mr Seymour Connor. It was his job to go to the warehouse, pick up racks of garments, put them into his van and deliver them to customers, such as Sunrule, obtaining payment on occasions. The judge held that Mr Connor was an honest witness.
The judge heard evidence as to Sunrule's accounting system. On the day of the trial Mr Dimopoulos produced Sunrule's stock list. It was Sunrule's practice to enter goods on to the stock list when they were delivered. This was normally carried out by Miss Esmaeili. If she was not available someone else would write the items into the book. Delivery notes were reconciled with the stock list at the end of every month.
The district judge does not in terms say, but presumably the goods for which delivery was disputed at the trial were not shown in the stock lists of Sunrule. In the event, the district judge found that it was highly probable that Avinue regularly cold called on Sunrule and saw Mr Dimopoulos or Miss Esmaeili. He concluded that the disputed goods were delivered. The problem in the district judge's judgment arose because Avinue lacked a system for properly recording the delivery of goods. He also held that the paper work supporting the deliveries was not up to date with the delivered items. He further held that there was a defect in the systems of Sunrule.
The judge said that in the case of Sunrule the shop was clearly very busy. There were times when everyone was working and selling. There was a good possibility that goods had arrived and been sold almost immediately and may not have been recorded by the defendant's staff.
Sunrule appealed to the judge and contended that, as Mr Dimopoulos could not properly write or speak English and he was a dyslexic, the district judge should have allowed Mr Boyd to represent Sunrule. Mr Boyd has confirmed that Mr Dimopoulos is dyslexic, but has not put his application on that basis.
The judge rejected Mr Boyd's argument. He held that at the time of the hearing before District Judge Silverman Mr Boyd was not an officer or employee of Sunrule and therefore could not present Sunrule's case. At the time of the appeal to the judge, Mr Boyd had been appointed a director of Sunrule and therefore he could, and did, present Sunrule's case on appeal, as he has done to this court.
The judge held that there was no basis on which the district judge's findings could be set aside. At one point at the hearing Mr Dimopoulos intervened and the judge observed that Mr Dimopoulos could express himself, but Mr Boyd disputed this.
The Appellant's Submissions
On this appeal Mr Boyd again appears as lay representative for Sunrule. He makes the submissions which he made to the judge and a skeleton argument has been filed on behalf of Sunrule. This says:
"Mr Boyd's case is that the judge was in error in failing to allow the appeal on the basis that Mr Boyd was entitled to act as a lay representative for the defendant."
In his written skeleton argument Mr Boyd says:
"Relying on the booklet 'The Small Claims Track 7' page 10, 'Lay Representative' Mr John Boyd attended the hearing with me in this capacity, only to be informed at the hearing by the District Judge that he was not interested in hearing from anyone other than the Claimant and the Defendant in person."
It was further submitted in the skeleton argument that judgment was given against Sunrule and that that judgment was against the weight of the evidence. It is submitted that if Sunrule's lay representative had been allowed to speak on its behalf outlining the facts in full, Sunrule considered that the judgment would have been in its favour.
Mr Boyd on this appeal has shown us a pamphlet entitled "The Small Claims Track" printed on behalf of the Court Service, which under the subheading "Can I take someone with me to the hearing?", says:
"Yes. If you do not have a solicitor, you can take someone with you to speak for you. This person is called a 'lay representative' and can be anyone you choose, such as your husband or wife, a relative, a friend or an advice worker. If possible, the lay representative should not be a witness. Your lay representative cannot go to an appointment without you unless you have permission from the court."
In his submissions Mr Boyd has explained that Mr Dimopoulos is Greek by origin and that his first language is Greek. He has lived in this country for 26 years. He does not read English well, his oratory is not good and his written English, in Mr Boyd's words, is "non existent". He has taken us to the transcript at which he made these points to Judge Silverman. He has also taken us to a further passage in the transcript at page 23 in which the judge asked Mr Dimopoulos to move closer to him and said:
"You have quite an accent, so I want to make sure that I understand everything."
There is another point in the transcript at page 29 when Mr Dimopoulos explained:
"Because my English is not so good I ask Mr Boyd to help me."
Mr Boyd also pointed us to a question and answer at page 24 when the judge asked him:
"Was it a fairly informal arrangement?
A. Not really, it's just casual."
Mr Boyd cited that as an example of Mr Dimopoulos not properly understanding English.
In the course of the trial Mr Boyd points out that Mr Dimopoulos did not cross examine Mr Grossobel so no questions were put to him in support of the defendant's case. The defendant's case appears clearly from the letter dated 30 October 2002 sent to the county court and the schedule referred to in that letter which is a "List of all invoice numbers and explanation and reasons as to the disputed amounts." This document sets out the 19 invoices in issue, Against each invoice it states whether it is disputed and, if so, for how much and why. For instance, the first item was:
"Invoice No 1010 — Not delivered, no delivery note Disputed amount £76.38."
Mr Boyd tells us that this document was handed to the judge. As we know it was sent to the court in advance of the trial and must also have been available to the claimant. However, the judge does not refer to this document in the course of the hearing. At one point the judge complains that he had not been given a list showing clearly which invoices are disputed and why. For that reason he found it necessary to go through each and every invoice with Mr Connor or at least started on that track. I have not been able to check whether he dealt with every invoice.
Mr Boyd submits that, had there been a lay representative, the questions could have been put to Mr Grossobel with respect to the disputed matters. He submits that there was hard evidence that goods were not delivered. By way of example he has referred us to page 33 of the transcript which refers to invoice 1170. The practice was for there to be an invoice and, in most cases, an order form. There would then be a delivery note. In the case of invoice 1170 the invoice stated that there were a number of items delivered, whereas the delivery note said only one piece and that was the reason why there was a dispute as to that invoice.
Mr Boyd submits that the judge did not refer to that point in his judgment. It appears from the schedule that that same point would have applied to a number of the other invoices. Mr Boyd further submits that there had been an earlier abortive hearing on 7 January 2003 when he was permitted to act as lay representative by the district judge then hearing the matter, but the matter had to be adjourned. Mr Burgess' instructions...
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