Grimshaw v Dunbar

JurisdictionEngland & Wales
Judgment Date16 January 1953
Judgment citation (vLex)[1953] EWCA Civ J0116-1
CourtCourt of Appeal
Date16 January 1953

[1953] EWCA Civ J0116-1


Lord Justice Jenkins

Lord Justice Morris and

Mr Justice Roxburgh

In The Supreme Court of Judicature

Court of Appeal

MR J. SOFER (instructed by Messrs H.E. Thomas & Co.) appeared on behalf of the Appellant (Defendant).

MR E. DENNIS SMITH (instructed by Messrs Weller & Birrell) appeared on behalf of the Respondent (Plaintiff).


This is an appeal from an Order of His Honour Judge Sir Gerald Hurst dated 28th. October, 1952, whereby he refused an application by the present Appellant, the Defendant in the action, for a new trial. The action of which the Appellant Defendant desires a new trial had been commenced on or about the 5th June, 1952, and it was a claim for possession of certain rent-restricted premises of which the Defendant was tenant, on the ground that the tenant was in arrear with his rent. The Particulars ofClaim allege no other ground for possession beyond the fact of the arrears; and they claim, as is usual, the rent actually in arrear (down to the issue of process, I suppose), and thereafter mesne profits at the same rate to the date of hearing or judgment. On the 30th June (that is, three days before the hearing of the Summons, which came on before the learned Judge on the 3rd July) the Defendant paid into Court the full amount claimed, end costs. He says, and it has not been disputed before us, that he was misled by information he obtained from an official at the offices of the County Court. I understand that when he saw the official on the 30th June in connection with paying the money into Court he asked whether, if he paid the full amount claimed into Court, it would be necessary for him to be present at the hearing or would the Summons in that event automatically stand dismissed or not be the subject of any Order; and he says that the official informed him that in those circumstances it was unnecessary for him to attend. That advice was, of course, erroneous. At the hearing on the 3rd July the learned Judge heard the Plaintiff landlord's side of the matter, but, of course, heard no argument or evidence on the part of the Defendant, who did not appear; and on that ex parte hearing of the matter he appears to have come to the conclusion that notwithstanding the payment into Court it would be reasonable to make an Order within the meaning of the relevant provisions of the Rent Restriction Acts, and he made an Order accordingly for possession of the premises on the 3rd. November, 1952.


A few days (I take it to have been) after the learned Judge had pronounced that Judgment the Defendant received a copy of it, and this, one would think, must have been a surprise to him having regard to the advice he had received at the County Court office. Be that as it may, he appears to have taken no step for some weeks, for it was not untilthe 23rd September, 1952, that he served his motion to have the Order of the 3rd July, 1952, set aside. That I understand to be the proceeding which is accepted for the present purpose as sufficiently intimating a request for a new trial.


The matter did not in fact come effectively before the learned Judge until the 28th October, 1952, and the only record with which we have been supplied of what took place before him on that occasion is a memorandum in these terms: "This application was made on the 28th. October, 1952, and was dismissed but the time for giving possession was extended to the 1st. January, 1953. No further application can be entertained. This is a Final Order. Costs of 10s. 0d. have been allowed which sum must be paid into Court on or before the 11th November, 1952".


There appears to have been no evidence before the learned Judge in support of the application, and the matter appears to have been dealt with in quite a few minutes. We have before us an affidavit filed on the part of the Defendant Appellant which sets out his story about the mistaken advice he received from the County Court official and his receipt of the Order in fact awarding possession against him. He explains that he issued the application for a new trial on the 23rd September, 1952, and that this was originally fixed to be heard on the 14th October, but, as I have said, it did not in the end come effectively before the learned Judge until the 28th of that month. The last part of the affidavit says this: "At the Plaintiff's Solicitors' instance the hearing of the said application was adjourned to the 28th October, 1952. I appeared on that day before the learned County Court Judge when he refused my said application". It will be observed that nothing is said as to the learned Judge's reasons for refusing the application.


Those are the facts, and the question is whether the Defendant Appellant has made out such a case of error of law on the part of the learned Judge as would entitle this Court to vary his Order refusing a new trial which he made in exercise of the discretion reposed in him under the County Court Rules. The relevant Rule is Order 37, Rule 2: "(1) Where a defendant to an action or a defendant to a Counterclaim does not appear at the hearing and a judgment or order is given or made against him in his absence, the judgment or order and any execution thereon may on application be set aside and a new trial may be granted. (2) The application may, if the parties are present, be made on the day on which the judgment or order was given or made, and in any other case shall be made on notice. (3) The application shall be made to the Judge if the judgment or order was given or made by the Judge and in any other case to the Registrar". It will be observed that the form of the Rule is that "the judgment or order and any execution thereon may an application be set aside and a new trial may be granted": in other words, the Rule is couched in language appropriate to the vesting of a discretion in the Judge.


I should next say a few words about the principles on which this Court acts in considering whether a case is made for interference with the exercise of a judicial discretion in the County Court. The most useful case for that purpose is, I think, the case of ( Dick v. Piller 1943, 1 King's Bench, page 497). It was a decision of the majority of the Court, consisting of Lord Justice Scott and Mr Justice Croom-Johnson, Lord Justice du Parcq (as he then was) dissenting. I think that the effect of the decision is sufficiently stated in the headnote. The case, I should say, concerned an exercise by a County Court Judge of his discretionary power in regard to adjournment by refusing an adjournment sought owing to the illness of a witness. Theheadnote is this: "When a witness in, or a fortiori a party to, an action in a county court is alleged to be prevented by illness from attending the court for a hearing of the case and the judge is satisfied of the fact of his illness and of the materiality and importance of his evidence and that the granting of an adjournment will not cause an injustice to the other party which cannot be reduced by costs, it is the duty of the judge to grant an adjournment, it may be on terms, and failure on his part to do so constitutes a miscarriage of justice which necessarily involves an error of law on which an appeal may be founded".


Lord Justice Scott at page 499 put his view of the matter thus: "The only question in the appeal is whether the judge erred or misdirected himself in law in refusing the adjournment. Lord Justice du Parcq thinks that, if the judge erred, his error was an error of fact. Mr Justice Croom-Johnson thinks there was an error of law. I have read both judgments with care, and agree with the conclusion arrived at by the latter, although I agree with the former that, if the refusal of the adjournment had been an exercise of discretion on a pure question of fact, no appeal would have lain under section 105 of the County Courts Act, 1934. On the facts relating to the application for adjournment, I think the judge caused a serious miscarriage of justice, and that, in doing so, he neglected a first principle of law, for he deprived the defendant of his elementary right to be heard".


Lord Justice du Parcq, in his dissenting Judgment, found himself unable to discern a question of law in the matter; but in the course of his Judgment he referred to this well-known passage from the Judgment of Lord Atkin in the case of ( Evans v. Bartlam 1937, Appeal Cases, page 473). This is at page 503 of the report of Dick v. Piller. He said: "'Appellate jurisdiction is always statutory; thereis in the statute no restriction upon the jurisdiction of the Court of Appeal: and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of a judge's discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it'".


It should be noted that the discretion to which Evans v. Bartlam related was a discretion exercised by a Judge of the High Court, and, therefore, their Lordships were not embarrassed in that case with the effect of section 105 of the County Courts Act. But from the passage in Lord Justice Scott's Judgment to which I have already referred it will be seen that in the view of the learned Lord Justice similar considerations apply on appeals against an allegedly...

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