Bernard Saunders and Another v Shadia Hamad AL Himaly and Others (Respondents/Claimants)

(As Approved)

This is the hearing of the Defendants' appeal against a possession order of Her Honour Judge Melissa Clarke dated 9 March 2016. That order was made pursuant to a judgment giving summary judgment to the Claimants.

At an oral hearing on 26 October 2016, Nugee J gave permission to appeal on the following grounds. First, whether it was wrong to proceed with the application for summary judgment on 9 March 2016. Second, whether the facts of this case are materially indistinguishable from Cobbe v. Yeoman's Row Management Ltd[2008] UKHL 55, as the judge found, and third, whether the judge was right to grant summary judgment on the pleaded case as it stood, after paragraphs had been struck out pursuant to an unless order.

As Mr Upton, who appeared for the Claimants/respondents, pointed out, it does not follow that if the Defendants are successful on ground 2 and this case is distinguishable from the Cobbe case that the appeal must be allowed. He says that the Defendants must also succeed on grounds 1 or 3.

The procedural history of this matter is somewhat complex and I shall do my best to recite it concisely. The Claimants are the legal owners of a property at The Dell, Hockett Lane, Cookham, SL6 9UF (“the property”). In 2015 the Claimants issued a claim for possession of the property on the ground that, following expiry of the Claimants' notice terminating a licence asserted by the Defendants, the Defendants were trespassers. The Claimants also claimed damages arising out of conversion of a swimming pool into a separate residential dwelling house which they claim was in breach of planning control or building regulations.

The Defendants defended the claim and by way of counterclaim sought a declaration that they had acquired an equity in the property by reason of proprietary estoppel and/or constructive trust and also claimed damages for unjust enrichment. The defence, which was settled by Counsel, claimed that they had carried out works to the property pursuant to an amended joint venture agreement, as well as taking other actions to their detriment, to which I shall return.

The case management directions including permission for both parties to rely on expert evidence in relation to the works allegedly carried out by the Defendants concerning the effect, if any, that such works had had on the value of the property. On 17 December 2015, District Judge Parker made an order that unless the Defendants allowed the Claimants' experts access to the property for the purpose of producing expert reports: (1) at 10am on Tuesday, 5 January 2016 or; (2) if either expert was unavailable on 5 January at a time specified between 9am and 5pm, giving five clear days notice; then paragraphs 34(b) and (d), the second sentence of paragraph 34(c) and paragraphs 60, 61 and 62 of the Amended Defence and Counterclaim would be struck out and the Defendants would be debarred from denying that all works to the property did not comply with building regulations. The order was not complied with and a further unless order was made by the judge on 9 February 2016 which was also not complied with. Again, the Defendants refused to allow the Claimants' experts access to the property. For that reason, parts of the Defence were struck out.

This morning I received an application from the Defendants for relief from sanctions. This was far too late, given that there had already been an unsuccessful attempt to appeal the Unless Order. The Defendants made a great mistake in considering that they were entitled to refuse the Claimants' experts access to the property, in spite of the fact that they had been ordered to do so by no less than two court orders. Even if the application had been in time, I would not have granted relief from sanctions.

The trial was fixed to be heard on 9 March 2016 with a trial estimate of three days. On 4 March 2016 the Claimants' main witness suffered an acute inferior myocardial infarction in Saudi Arabia. He was unable to travel to the UK to give evidence at the trial. On the following Monday, 7 March 2016, the Claimants applied for summary judgment and an abridgement of time for the application be heard on the first day of the trial. Alternatively, they sought an adjournment of the trial. The application was supported by medical evidence of the condition of the relevant witness.

On 9 March 2016 HHJ Clarke accepted that the trial could not proceed. She decided to hear the application for summary judgment even though it had not been served within the relevant time provided by the rules and even though the Defendants were not legally represented.

The matter was then adjourned for about 50 minutes to enable Counsel for the Claimants, at the judge's request and with the Defendants' agreement, to explain the meaning and purpose of the summary judgment application, which the judge had already done very carefully herself. After that short adjournment the judge heard submissions from Counsel for the Claimants and from the first and second Defendants in person. The judge then gave a detailed ex tempore judgment on the same day.

In respect of the first issue, whether it was wrong to proceed with the application for summary judgment on 9 March 2016, I shall summarise briefly the arguments that have been presented to me. First, Mr Upton says that the judge was quite right to take that course, because this was the first day of the trial and so the Defendants needed to be fully prepared for a trial. It did not therefore prejudice them to receive an application for summary judgment when all facts which were in dispute needed to be assumed in their favour. On the contrary, they were more likely to win an application for summary judgment than they were to win the trial. Secondly, the judge was extremely careful to explain the effect of a summary judgment and what the Defendants did and did not need to address. Thirdly, this is a case management decision in respect of which the judge has a wide discretion and an appeal court will be very slow to interfere with the exercise of any such discretion. Mr Upton referred me to the case of Abdulle v. Commissioner of Police of the Metropolis [2015] EWCA 1260 [2016] 1 WLR 898, which makes this well-known point. He also said that the judge informed the Defendants that she would listen to an application to adjourn if the Defendants wanted to obtain legal representation and that no such application was made, the Defendants having made it clear that they could not afford such legal representation. Therefore, there was little point in an adjournment.

On the other hand, the Defendants submit that they were ambushed by this application which did not comply with the rules and by documents, including case-law, which were served just a few days before the trial. Mr Saunders submits that he did not have time to research the cases which he would otherwise have done. There is some evidence in his various submissions that he is capable of researching and finding legal precedents. Furthermore, he says that he did not understand the effect of summary judgment or what needed to be argued on a summary judgment application. He argues that he did not have a fair hearing because he was not given an opportunity to consider properly the matters in issue.

There is undoubtedly some force in Mr Saunders' submissions. Had the trial proceeded he would not have had to make submissions about case-law on the first day and he would have had more time to think about the law before any closing speech. Furthermore, the Claimants themselves applied, in the alternative, for an adjournment of the trial because of the absence of their main witness. Therefore, as Mr Upton readily acknowledges, there would have been no prejudice to the Claimants by an adjournment of a few weeks.

Furthermore, it may be said the Defendants were entitled to see whether they could obtain free representation. If the application had been before me, even if the Defendants had not specifically articulated that they wanted an adjournment, I would have granted an adjournment. The application for summary judgment was made very late. The parts of the Defence which gave rise to the application for summary judgment were struck out on 9 February and there was still a month before the trial. The application for summary judgment should plainly have been made beforehand. My own conclusion would have been that the reason why this late application was made was the absence of the Claimants' main witness, which gave rise to a concern that they could not prove their case at trial.

However, I remind myself that this is not an exercise by me of this discretion. I am reviewing the judge's exercise of discretion, and given that there was material to support it, I do not think this is a case where it would be appropriate for me to interfere. Furthermore, I do not consider that the issue is material to this appeal in any event. The judge gave judgment over a year ago and by now the Defendants have had ample opportunity either to seek legal representation or to review the case-law. I am now hearing the...