Falmouth House Ltd v Micha'al Kamel Abou-Hamdan
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nugee |
| Judgment Date | 10 April 2017 |
| Neutral Citation | [2017] EWHC 779 (Ch) |
| Court | Chancery Division |
| Date | 10 April 2017 |
| Docket Number | Appeal Refs: CH-2016-000017 CH-2016-000099 |
[2017] EWHC 779 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Order of HHJ Mitchell dated 20 April 2015
Order of DJ Langley dated 10 December 2015
Order of HHJ Saggerson dated 14 December 2015
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Nugee
Appeal Refs: CH-2016-000017
CH-2016-000098
CH-2016-000099
Angus Gloag (instructed under Direct Access) for the Appellant
Jennifer Meech (instructed by Judge & Priestley LLP) for the Respondent
Hearing dates: 27 and 28 October 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In this matter I heard an appeal by the Defendant, Mr Abou-Hamdan, from a number of decisions of the County Court at Central London over 2 days. At the end of the hearing I gave an unreserved oral judgment allowing the appeal as I had reached a clear view on the matters argued before me and I thought the parties should know the position straight away. That judgment was however expressed quite briefly and I offered counsel an opportunity to have a more detailed judgment if they wished it. Ms Meech, who appeared for the Respondent, Falmouth House Ltd ( "FHL"), said that she wished to take up that invitation. This judgment is therefore the more detailed judgment that I offered to provide.
The underlying dispute between the parties is a dispute as to service charges. FHL is the freehold owner of a building known as Falmouth House in West London. Mr Abou-Hamdan is the current lessee of a flat in the building. In November 2013 FHL issued a claim form against him claiming a little over £30,000 for arrears of service charges and contributions to a reserve fund. Mr Abou-Hamdan served a Defence and Counterclaim to that claim.
The appeals concern procedural orders. I will have to give more details in due course but in very brief summary there are three relevant orders as follows:
(1) Trial was originally listed for 20 April 2015. On that day, in circumstances that I will have to consider, HHJ Mitchell made an Order ( "the Mitchell Order") which re-fixed the trial date for hearing on the first convenient open date after 13 August 2015, and which provided that if Mr Abou-Hamdan did not attend in person on the date so re-fixed, his Defence and Counterclaim would be struck out and judgment entered for FHL.
(2) Trial was then re-fixed for 14 December 2015. On 10 December 2015 DJ Langley heard, and dismissed, an application by Mr Abou-Hamdan to be permitted to give evidence by video-link ( "the Langley Order").
(3) On 14 December 2015, the day fixed for trial, Mr Abou-Hamdan did not attend in person. He did however appear by counsel, who applied for relief from sanctions for non-compliance with the Mitchell Order. That was refused by HHJ Saggerson, with the inevitable result that Mr Abou-Hamdan's defence was struck out (his counterclaim had already been discontinued), and judgment was entered in default for FHL in a sum of just over £35,000, together with indemnity costs ( "the Saggerson Order").
The practical effect of all three Orders taken together is that Mr Abou-Hamdan has had judgment for a significant sum entered against him as a sanction for not attending the trial in person despite the fact that he had instructed counsel to appear for him at trial.
That seems on the face of it to be a somewhat surprising state of affairs. There are two features of the way in which civil litigation is conducted in this country that I would have thought were well established and uncontroversial. The first is that although an individual who is a party to litigation has a right to appear in person and represent himself at trial (and these days of course is often obliged to do so for practical reasons), he or she also has a right to appear by counsel. In criminal cases Art 6(3)(d) of the European Convention on Human Rights confers an express right on anyone charged with a criminal offence to "defend himself in person or through legal assistance of his own choosing"; although that only applies to criminal cases, my understanding is that in England at any rate it reflects a common law principle which applies equally in civil cases. I am not aware of any principle which would prevent a litigant from appearing by counsel. Nor am I aware of any general requirement for a litigant who appears by counsel to be himself physically present in court: at many hearings this is entirely unnecessary.
The second feature of civil litigation is that a party is in general entitled to form their own view whether to give evidence or not. A claimant is not obliged to give evidence if he can make out his case by some other evidence or by admissions; a defendant is not obliged to give evidence if he can make out a defence by other evidence, or if the claimant has failed to establish his case. A defendant who has decided not to give evidence can still cross-examine the claimant's witnesses with a view to showing that the claimant has failed to make out his case; or a defendant may decide at the end of the claimant's case to elect not to call any evidence and submit that there is no case to answer. All of this is very familiar and (largely) unaffected by the Court's case management powers under the CPR. In saying this, I am referring to the ordinary run-of-the-mill trial; I am not addressing unusual circumstances where the Court may have power to compel the attendance of a party for the purposes of cross-examination, but about the usual mode of trying civil claims.
It follows from these two features of civil litigation that there is nothing on the face of it irregular, contrary to the rules, improper, or even very exceptional about a defendant who (i) instructs counsel to appear at trial on his behalf and (ii) does not himself propose to give, or call, evidence. In practice such a defendant will necessarily be confined in his defence to having counsel cross-examine the claimant's witnesses, scrutinise the evidence the claimant has adduced, and submit that on that evidence, or as a matter of law, the claimant's claim has not been made out, or not made out in full. But there is no reason why he should not adopt such a course if he wishes to. And if that is the course he proposes to adopt, there would equally seem on the face of it no reason why the defendant should have to attend court in person. If he is neither going to be representing himself, nor giving evidence, there is no obvious purpose served in requiring him to attend personally, "in order" (as it was put in a skeleton argument filed on Mr Abou-Hamdan's behalf for permission to appeal) "to sit at the back of the court".
By the time of the trial fixed for 14 December 2015, this was Mr Abou-Hamdan's position. He had instructed counsel to appear for him. He had abandoned his counterclaim, and so was limited to defending FHL's claim. He was not proposing to give evidence. (There was a suggestion that counsel might rely on his witness statement as hearsay evidence under CPR 32.5(1) but it was accepted that in the circumstances it would be likely to carry very little weight). Counsel was ready for trial. And yet Mr Abou-Hamdan found that judgment for the full amount of the claim, and indemnity costs, was entered against him without his being able to contest the claim on its merits. That as I say seems a surprising result, and one whose justice is not immediately apparent: compare Rouse v Freeman (Times, 8 Jan 2002) at [16] per Gross J (commenting on CPR 39.1):
"Put quite simply, there are a great many situations where the personal attendance of the party is irrelevant or most unlikely. On analysis, a party's personal attendance is only or principally likely to be of relevance, apart from the question of giving instructions, where that party is to give evidence. And if that is right then the remedy of a strike out seems inappropriate."
Mr Abou-Hamdan sought to appeal all three orders. The applications for permission were considered together by Mann J on 28 April 2016, and dealt with in two Orders made by him that day. In the first he transferred the appeal from the Langley Order to the High Court. In the second, he extended time for appealing the Mitchell Order and gave permission to appeal all three Orders, directing that they be managed and heard together. He also gave FHL liberty to apply to set aside the extension of time in relation to the Mitchell Order, a liberty which FHL duly took up by making such an application on 10 May 2016. There are therefore formally four matters before the Court: an appeal against each of the three Orders made in the County Court together with FHL's application to set aside the extension of time for appealing the Mitchell Order.
Facts
FHL issued its claim form on 14 November 2013. It claimed a total of £31,674.08 by way of arrears of service charges and associated fees and costs under the provisions of a lease of Flat 15 Falmouth House, of which Mr Abou-Hamdan had been the lessee since 2007.
On 13 December 2013 a Defence and Counterclaim, settled by counsel, was served by Mr Abou-Hamdan. The Defence raised issues as to whether the proper notices had been served as required by statute or by the lease, and whether the service charges were reasonable. The Counterclaim, as originally pleaded, asserted that FHL had become registered as proprietor of Falmouth House following successful enfranchisement by a number of leaseholders in 2004; that Mr Abou-Hamdan was a shareholder of FHL; that he was told when he purchased his flat that it had been agreed that FHL...
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