Keen Phillips (A Firm) v Field
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JONATHAN PARKER,LORD JUSTICE MOORE-BICK |
| Judgment Date | 26 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1524 |
| Docket Number | B1/2006/0420 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 October 2006 |
[2006] EWCA Civ 1524
Lord Justice Jonathan Parker
Lord Justice Moore-Bick
B1/2006/0420
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EPSOM COUNTY COURT
(HIS HONOUR JUDGE REID QC)
ROYAL COURTS OF JUSTICE
STRAND
LONDON, WC2
Mr E Mallet (INSTRUCTED BY MESSRS BARKER GILLETTE LLP) APPEARED ON BEHALF OF THE APPELLANT.
Ms H Brander (INSTRUCTED BY MESSRS MARCUS LEE ‡ CO) APPEARED ON BEHALF OF THE RESPONDENT.
1. This is an appeal by Peter Field, the defendant in the action, against an order made by HHJ Reid QC in the Guildford County Court on 14 February 2006 granting Keen Phillips, an accountancy firm and the claimant in the action, permission to appeal against the refusal of a district judge to grant summary judgment on its claim and allowing the appeal. Keen Phillips is the respondent to the appeal but, in order to avoid confusion, I will continue to refer to it throughout as the claimant.
The appellant's notice contains eight grounds of appeal but, by his order dated 2 May 2006, Gage LJ granted permission to appeal on ground one only, Brooke LJ having previously refused permission to appeal on the papers. Ground one reads:
"The learned judge did not have jurisdiction to grant permission to appeal, to hear the appeal or to allow the appeal."
As the only issue on the appeal is one of jurisdiction, it is unnecessary to go into the details of the claim. It is enough to say that in the action, which was commenced on 18 February 2005, the claimant claims payment of sums due in respect of accountancy work allegedly carried by it for the appellant.
The claimant's application for summary judgment was dismissed by District Judge Letts on 12 December 2005. The claimant appealed to the judge. By its notice of appeal, it sought an order granting permission to appeal and allowing the appeal. By an interlocutory order dated 22 December 2005, Judge Reid directed that the claimant, as the proposed appellant, lodge with the court an approved transcript of the district judge's judgment by 31 January 2006 and that, in default, permission to appeal was refused. HHJ Ryland later extended the time limit imposed by Judge Reid's order to 7 February 2006.
In the event, through no fault of the claimant or its legal advisers, and despite pressure on their part, the transcribers were unable to supply the court with a transcript of the district judge's judgment until 8 February 2006. The transcript was thus lodged one day late. At the hearing before Judge Reid on 14 February 2006 both parties were represented by counsel; the claimant by Miss Brander, who also appears in this court, and the appellant by Mr Foreshaw. A further party, a part 20 defendant, also appeared by counsel before Judge Reid, but that party has since dropped out of the picture.
At the outset of the hearing, Miss Brander referred the judge to the grounds of appeal and asked for permission to appeal. However, the judge responded that the sensible course would be for Miss Brander to advance her substantive grounds, so that the application for permission and the substantive appeal could be dealt with together. Miss Brander accordingly presented her submissions on the substantive appeal. When she had done so, the judge indicated that he wished to hear only Mr Foreshaw in response to her submissions. The transcript continues as follows at page 9:
"MISS BRANDER: I know there is one issue that Mr Foreshaw seeks to raise in relation to —
"JUDGE REID: Shall we see if he does and then you can come back on it if need be.
"MISS BRANDER: So be it.
"MR FORESHAW: Your Honour, there is a preliminary point which I do seek to take and that is that, on the face of the papers, permission to appeal has already been refused, and that is as a result of an order made by you. Could I invite you to —
"JUDGE REID: I made a more or less standard form order that, unless we get the transcript or an agreed note within such and such a time, then permission is refused, which is really for good housekeeping purposes. What not infrequently then happens is that that time has to be extended, because of shortcomings either in the speed at which the shorthand writers can operate or—it is not this case, because this was a full-timer—the length of time it takes deputy district judges to actually get hold of and correct draft transcripts when they arise. What are the dates on this particular problem?
"MR FORESHAW: 90F is the order made by you on 7 th January. That is that the proposed appellant lodge with the court by 31 st January 2006 —
"JUDGE REID: An approved transcript.
"MR FORESHAW: That is right, your Honour. That was then varied on 1 st February. I think it is HHJ Ryland.
"JUDGE REID: HHJ Ryland, I know, has had a hand in this at some stage.
"MR FORESHAW: I think it is 90M, although it is fair to say the bundle numbers on my copy —
"JUDGE REID: I have got 90K as an order of HHJ Ryland. He appears to have made two orders on the same day.
"MR FORESHAW: That is right, your Honour.
"JUDGE REID: He extended time to 7 th February.
"MR FORESHAW: That is right, your Honour. He states that explicitly to be with regard to the first two paragraphs of your order, 90F. Reading those two orders together, if that order is not complied with, in default permission to appeal refused, and it is my submission that that order has not been complied with.
"JUDGE REID: When do you say it was lodged with the court?
"MR FORESHAW: I say it was lodged on 8 th February, your Honour. Indeed, if I can invite you to turn to pages 151 and 152, there is some correspondence from solicitors. In fact perhaps the most instructive thing to turn to is 143, which as I understand it is an attendance note from those instructing my learned friend. That is dated 8 th February, your Honour. So there is no dispute that the transcript was not lodged until 8 th February.
"JUDGE REID: On the face of it, it went astray from the transcribers. So why should I not in those circumstances extend time further?
"MR FORESHAW: Your Honour, the situation is that there has been no application from my learned friend for relief from sanctions, and therefore on the face of your order given on 7 th January —
"JUDGE REID: How does that fit in with the overriding objective? What are you worried about? That the court has been done out of £30 for an application fee?
"MR FORESHAW: No, your Honour, I would not suggest that that is the concern. The reality is that this is on the back of a number of orders not being complied with by the proposed appellant.
"JUDGE REID: I can see from the documentation how it came about that it was not complied with, and I deprecate the fact that nobody saw fit to ask for an extension of time, but has any detriment been suffered by anyone as a result?
"MR FORESHAW: No, your Honour.
"JUDGE REID: In which case I will extend time."
Mr...
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