Dunbar Assets Plc v 1. Dorcas Holdings Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Lord Justice Tomlinson,Lord Justice Thorpe |
| Judgment Date | 12 July 2013 |
| Neutral Citation | [2013] EWCA Civ 864 |
| Docket Number | Case No: B5/2012/1706/1759/1764 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2013 |
[2013] EWCA civ 864
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
His Honour Judge Powles QC
1BF00330
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Tomlinson
and
Lord Justice Briggs
Case No: B5/2012/1706/1759/1764
Ian Wilson (instructed by DLA Piper) for the Respondent
Neil Mendoza (instructed by Blackstones Solicitors) for the
1 st and 2 nd Appellants
Michael Paget (instructed by Saunders Law Limited) for the 3 rd Appellant
Michael Paget (instructed by Saunders Law Limited) for the 5 th Appellant
This is the defendants' appeal against the order for possession of residential premises known as 1A Hartington Road, Chiswick ("the property") made by HHJ Powles QC in the Brentford County Court on 20 th June 2012. The appeal is pursued not on the ground that the order for possession was necessarily wrong ( CPR 52.11(3)(a)) but rather because it was unjust because of a serious procedural irregularity in the conduct of the hearing by the Judge ( CPR 52.11(3)(b)).
The possession order was made at the end of a short hearing on the day listed for the multi-track trial of the claim for possession of the property, made by Dunbar Assets PLC against the first defendant Dorcas Holdings Limited (the legal owner of the property), the second defendant Hugh Barrett, the beneficial owner of the first defendant and its licensee as occupant of the property, and against the third defendant Melissa Ross, the second defendant's co-habitee and also a licensee occupant of the property. The claim was based upon a legal charge of the property by the first defendant to the claimant as a security for a series of successive loans.
The claim had, until then, been defended upon the basis of a denial of due execution of the legal charge, and by reference to an alleged oral agreement ("the trade-out agreement") pursuant to which it was said that the claimant had agreed not to demand repayment of the loans by the first defendant while it sought to "trade out of its existing debt" by the development of further properties with financial assistance from the claimant. Alternatively, the claimant was alleged to have become estopped from demanding repayment by reason of representations in broadly similar terms to those of the alleged trade-out agreement.
There is a full transcript of the proceedings before the Judge on 20 th June, including his extempore judgment. It appears that it rapidly became common ground at the beginning of the hearing that there could not be the anticipated full trial of the claim. The Judge was burdened with two multi-track trials for hearing on the same day, and was required to hear and determine applications to amend their defences by the three existing defendants, as well as an application to be joined into the proceedings by Joe Lagna, who claimed to be a tenant of part of the property and sought, in substance, not to be evicted without the statutory two months' required notice. It had been specifically agreed between solicitors for the claimant and the first and second defendants that, if any amendment of their defence was allowed, there would have to be an adjournment of the trial. The Judge had ascertained from his pre-reading of Miss Anne Jeavons' trial skeleton argument for the claimant that she wished to submit that the existing pleadings (even if proved to the hilt) disclosed no answer to the claim for possession. Her skeleton argument in relation to the amendment applications submitted that the proposed amendments were, quite apart from being last minute, equally objectionable, for reasons which do not now matter.
The Judge's immediate concern, understandably in the light of the other multi-track claim awaiting trial in the wings, was to see if he could find what he described as a "way through". He sought to ascertain from brief oral position statements from each counsel what they were seeking to achieve that day. He ascertained from Mr. Neil Mendoza for the first and second defendants that he did not accept that his pleading of the trade-out contract and estoppel worked, if at all, only as a counterclaim and not a defence (as Miss Jeavons had submitted), but he told Mr. Mendoza that he could elaborate on all that when he (the Judge) returned into Court after a pre-reading of the papers, including the newly lodged applications.
After about fifteen minutes' further pre-reading the Judge returned and heard each of the defendants' (and Mr. Lagna's) applications in turn. Part of the first and second defendants' requested amendments consisted of an amplification of the trade-out contract and estoppel claim. The Judge sought to cut short Mr. Mendoza's submissions about why he should have permission to amend by expressing the provisional view that those amendments related to what he called "the damages claim", and that the estoppel might be capable of being brought to an end by reasonable notice. Although Mr. Mendoza sought to respond, the Judge succeeded in terminating Mr. Mendoza's submissions about permission to amend during the following exchange:
"The Judge: I am minded to let you make all those amendments-
Mr. Mendoza: I am grateful.
The Judge: But it is the consequences that follow from that that is really interesting.
Mr. Mendoza: If you are minded to let me make the amendments, I do not need to address you.
The Judge: Exactly.
Mr. Mendoza: So I will stop."
The Judge then proceeded to hear submissions from counsel for the third defendant, and from Mr. Paget for Mr. Lagna. He ascertained from Mr. Paget that what his client actually wanted was to make sure that he got at least two further months in the property. Mr. Paget added that if his client's alleged tenancy pre-dated the legal charge he would be entitled to a slightly longer period, namely two months from the date of any possession order, together with the period necessary for the claimant to obtain possession against Mr. Lagna by a further order. Mr. Paget told this court that, in that event, Mr. Lagna might have expected to obtain about seven months in total.
Immediately after the end of the submissions on the defendants' various applications, the Judge proceeded to give an extempore judgment. He began by saying that:
"The Court finds itself very much in case management mode rather than in decision-making mode."
He continued by refusing the first and second defendants' permission to amend, save only for the amplification of their case about the trade-out agreement and estoppel, which he had permitted during argument. He continued as follows:
"What is the court therefore to do? There seems little enough reason to grant an adjournment to the third defendant for amendments that will be not be allowed, so I ought to get on with the trial. Plainly we cannot now do that. Miss Jeavons goes further. She says that we do not need to get on with the trial because the matters that are there by way of counterclaim complaining of things that the bank did not do from time to time will sound in money and the counterclaim can proceed at a later date, but that she is entitled to a possession order today. I agree with her. I see nothing in the estoppel point that has been raised. The matter is in a deed. There has been ample time for the parties to re-establish their positions once it became clear that the bank would not honour or comply with such representation as they had made. I do not see for one moment that there is a case that the estoppel was one that had a permanent effect such that the deed was rendered completely nugatory. I do not think that that is arguable.
Miss Jeavons is entitled to her possession order. But I have, I hope, sufficient humility to recognise that I might be wrong, as Mr. Mendoza is clearly indicating from his facial expression.
The solution is that I will grant a possession order, but I will also grant a stay of its execution for 21 days. If a Notice of Appeal is lodged within the 21 days, I will extend the stay until the matter can get before a High Court Judge to consider this ruling.
As far as the fourth defendant is concerned, he will be made a party. The possession order in his case will be one of two months, but the stay will apply to him as well."
The Judge made it clear during submissions following judgment that he did not intend to close off the pursuit by the first and...
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