Lawfin Ltd (Plaintiffs v Alfred Meisels and Another (Defendants
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL,SIR JOHN MEGAW |
| Judgment Date | 10 November 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1110-2 |
| Docket Number | 88/0932 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 November 1988 |
[1988] EWCA Civ J1110-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE KRIKLER)
(HIS HONOUR JUDGE GRAHAMT)
(MRS. RECORDER UZIEL-HAMILTON)
Royal Courts of Justice
Lord Justice Mustill
and
Sir John Megaw
88/0932
case No.8721651
The First Defendant (Appellant) appeared in person.
MR. R. LEONARD (instructed by Messrs. Engleharts, Solicitors, Hove, East Sussex) appeared on behalf of the Plaintiffs (Respondents).
This is a consolidated appeal brought by Mr. Alfred Meisels and Mrs. Marilyn Lorrain Meisels against a number of orders made in the Willesden County Court in relation to a claim brought by Lawfin Limited against the appellants by way of plaint. The claim arose under a credit agreement made on 27th July 1987, whereby the plaintiff company lent to the appellants the sum of £35,000 on terms that the sum would be repaid within two months, together with interest amounting to £2,100. The loan was secured by a second charge on the residence of the appellants at 129 London Road, Stanmore, Middlesex, and on an adjacent garage. The second charge was postponed to a first mortgage in favour of City & Merchant Bank for the sum of £150,000. Pursuant to the terms of the credit agreement the money fell due for repayment at the end of September 1987. No money was then paid.
During October 1987 there were two payments totalling £2,228; apart from that no other payments have been made in respect of the indebtedness, although certain cheques were tendered in purported payment. These were in due course dishonoured.
Having obtained no satisfaction in respect of their claim to the balance of the indebtedness, the plaintiffs commenced their actions in the Willesden County Court.
Before I set out any more of the tangled history of this matter, I will read certain provisions of the County Court Rules, because without some understanding of these the subsequent procedural history would be unintelligible.
0. 4 r.3 of the County Court Rules 1981 provide as follows:
"3. Proceedings—
(a) for the recovery of land, or
(b) for the foreclosure or redemption of any mortgage or, subject to Order 31, rule 4, for enforcing any charge or lien on land, or
(c) for the recovery of moneys secured by a mortgage or charge on land,
may be commenced only in the court for the district in which the land or any part thereof is situated."
0. 16 r.2 provides that:
"Where proceedings are commenced in the wrong court, the judge or registrar may, subject to rule 3,—
(a) transfer the proceedings to the court in which they ought to have been commenced, or
(b) order the proceedings to continue in the court in which they have been commenced, or
(c) order the proceedings to be struck out."
"3. Where an action or matter is required by any Act or statutory instrument other than these rules to be commenced in a particular court, nothing in rule 1 or 2 shall authorise the making of an order for the transfer of the action or matter to, or its continuance in, another court."
0. 37 r.5 provides that:
"Where there has been a failure to comply with any requirement of these rules, the failure shall be treated as an irregularity and shall not nullify the proceedings, but the court may set aside the proceedings wholly or in part or exercise its powers under these rules to allow any such amendments and to give any such directions as it thinks fit.
(2) No application to set aside any proceedings for irregularity shall be granted unless made within a reasonable time, nor if the party applying has taken any step in the proceedings after knowledge of the irregularity."
I turn now to the course of events. I have mentioned that these proceedings were launched by plaint at the beginning of December 1987. Before this took place the legal executive who was dealing with the matter on behalf of the plaintiffs' solicitors very properly took steps to ascertain whether the matter fell within the jurisdiction of the court in which she contemplated instituting proceedings, namely the County Court at Willesden. She telephoned the court and was told by an official that the address at which the appellants' house was situated was indeed within the jurisdiction of the court, and accordingly she "commenced the action in that court. This defect in the proceedings was evidently not noticed by the officials of the court.
The action went ahead in a conventional manner, no defence being served on behalf of the defendants, and on 19th February 1988 an order was made by the learned Registrar in the presence of the appellants, who had attended in person, requiring the appellants to deliver up to the plaintiffs on or before 22nd April the property charged in the credit agreement. There was also included in that order a money judgment in the sum of £39,029.4p, together with £36.33p. interest per day until payment.
That order was not complied with because, on 18th April, the appellants applied to the County Court for an extension of time for the satisfaction of the judgment. The grounds stated were that the house was the only place of residence for the appellants and their four young children. The extension requested was a period of ninety days, to enable the appellants to settle the outstanding debt in full, this being stated in the application to be the time within which the first appellant would be able to make payment. In the event the learned Registrar granted a stay of execution for twenty-eight days, that order being made on 16th May 1988.
The appellants did not satisfy the judgment within that time, but they managed to obtain from the Registrar a further extension of seven days from 12th July, again saying that they would be able to pay within a limited time. The judgment was not satisfied within the period of seven days. The monies were by now nine months overdue in excess of the credit period of only two months.
On 4th August the first appellant again applied for what he called "one last hearing and final extension", saying that he could pay up within fourteen days. It may be noted again that he did not pay within fourteen days or within any other number of days. That application for a stay was dismissed by the learned Registrar. The appellants appealed to His Honour Judge Graham from the Registrar's refusal to stay the execution of the possession order; that learned judge, in a full judgment, gave his reasons why it should be dismissed.
At some time which is not known to this court a warrant for execution in respect of the premises was issued by the Willesden County Court, and for reasons as to which we are not clear, bailiffs working under the jurisdiction of the Watford County Court went into possession of the house. The money judgment was not made the subject of execution and has not yet been satisfied.
I now go back a little in time. According to the evidence given by Mr. Meisels, which has not been controverted, from the outset he felt considerable doubts about whether the house was within the territorial jurisdiction of the Willesden County Court and accordingly about whether that court had any jurisdiction under 0. 4 r.3. According to Mr. Meisels' account of matters he voiced these doubts on more than one occasion throughout the continuance of these proceedings to officials of the court, and was in each case told firmly that his doubts were ill-founded. It is a curiosity in this case that we have never learned from Mr. Meisels what it was that put him on guard in the first instance, and why whatever that may have been was not specifically brought to the attention of the officials at the time when he made his protest. At all events he never said anything about these reservations to any of the Registrars or judges before whom he appeared, until, on 28th September he made an application to the Willesden County Court in the following terms:
"I wish to apply for an order setting aside the possession order dated 14th day of February 1985, and that the proceedings be struck out on the ground that this court had no jurisdiction to hear the proceedings, which should have been issued in the Watford County Court, and therefore the order made was irregular."
I must say at once that the primary contention of fact contained in that application has proved to be correct. The appellants' house did not lie within the jurisdiction of the Willesden County Court; the plaintiffs' solicitors were misinformed by the court officials and therefore had been misled into starting the action in the wrong court and, as I am prepared to accept, Mr. Meisels was also misled by the court officials when they told him that the action was indeed correctly brought in Willesden. At all events, in some way that we do not know, he had managed to satisfy himself by 28th September that the action had been wrongly brought. Hence the application which I have mentioned.
This application came in due course before His Honour Judge Krikler, who heard it on 14th October 1988. The application was presented by the appellant, Mr. Meisels, in person, the plaintiffs not being represented.
There is a little history to this, the details of which do not matter. I think it is sufficient to say that when Mr. Meisels originally took the point by way of application to set aside, he seems to have been told by the Willesden County Court officials to take the matter to this court rather than by an application to set aside. When this suggestion was followed, the Civil Appeals Office rightly...
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