Mohammed Waris Ali v Keith Hudson (trading as Hudson Freeman Berg (A Firm))

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Clarke:,Lord Justice Potter,Lord Justice Ward
Judgment Date11 Dec 2003
Neutral Citation[2003] EWCA Civ 1793
Docket NumberCase No: B1/2003/0679

[2003] EWCA Civ 1793

IN THE COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

Mr Justice Leveson

Before:

Lord Justice Ward

Lord Justice Potter And

Lord Justice Clarke

Case No: B1/2003/0679

Between:
Mohammed Waris Ali
Appellant/Claimant
and
Keith Hudson
and
(TRADING AS HUDSON FREEMAN BERG)
Respondent/Defendant

Mr Ross Cranston QC (instructed by the Bar Pro Bono Unit) for the Appellant/Claimant

Mr Spike Charlwood (instructed by Barlow Lyde & Gilbert) for the Respondent/Defendant

Lord Justice Clarke:

Introduction

1

This an appeal from an order of Leveson J dated 10 March 2003. It is brought with permission which I granted on 22 May 2003 after hearing an oral application for permission to appeal by Mr Ali who was then acting in person. I also granted Mr Ali a short extension of time. I was concerned that Mr Ali needed legal assistance and suggested that he seek help from the Bar Pro Bono Unit. He did seek that help and I am very pleased to say that he has been represented before us by Mr Ross Cranston QC acting pro bono. The court is very much obliged to him, just as it is to Mr Charlwood, who has represented the respondent as he did before the judge. I would also like to thank the Citizens Advice Bureau at the Royal Courts of Justice for arranging and Clifford Chance and Freshfields for producing coherent and properly paginated bundles of relevant documents and authorities respectively, all on a pro bono basis.

2

As I read it, in the order appealed against Leveson J ("the judge") allowed in part an appeal from an order of His Honour Judge Green QC dated 12 April 200The effect of the order of the judge was that an appeal from an order of District Judge Hasan dated 9 July 1998 be stayed pending payment by Mr Ali of £1,750 into court.

3

The grounds of appeal against the order which Mr Cranston seeks to advance and to which I will return are that the judge either had no jurisdiction to make the order or, if he did, that Mr Ali's conduct did not warrant the making of such an order or, if it did, that the judge should not have made it without some further investigation of Mr Ali's means.

The History

4

I can take the history of the matter largely from my earlier judgment. The history is not, or not significantly, in dispute. It is a long history.

5

Mr Ali instructed the respondent, Mr Hudson, who was trading as Hudson Freeman Berg, a firm of solicitors, to act for him in relation to a purported agreement dated 27 January 1990, made without the help of solicitors, to sell his restaurant business. The purchaser refused to proceed and Mr Hudson obtained legal aid for Mr Ali to seek specific performance. It appears that in April 1991 counsel advised that Mr Ali did not have a reasonable prospect of success and his legal aid was discharged. Mr Hudson's retainer was then terminated.

6

Mr Ali nevertheless proceeded with the action and on 11 May 1994 Mr John Cherryman QC, sitting as a Deputy Judge of the Chancery Division, dismissed the claim, finding that the agreement was not binding. Permission to appeal against that order was sought but was refused on 22 January 1996.

7

A year later, on 24 January 1997, Mr Ali issued a claim for damages against Mr Hudson for breach of contract and/or professional negligence as a solicitor for failing to enforce the agreement, which Mr Ali alleged was binding, for the sale of Mr Ali's restaurant premises. Mr Hudson filed a defence on 12 February 1997 and on 27 February the Central London County Court made an unless order requiring a fully particularised claim within 14 days. On 6 March 1997 Mr Ali produced some new particulars of claim which made a number of allegations of negligence and breach of contract against Mr Hudson, not, so far as I can understand them, limited to the point just mentioned. They are by no means easy to follow, although I recognise that they were prepared by Mr Ali in person. I will return briefly below to the true nature of Mr Ali's claim, so far as it can be discerned.

8

On 9 July 1998 District Judge Hasan, sitting in the Central London County Court, struck the action out as disclosing no cause of action and as being frivolous and vexatious, and ordered Mr Ali to pay Mr Hudson's costs, to be taxed on scale 2. As I understand it, they were subsequently taxed in the sum of £14,592.64.

9

Judge Hasan gave a short judgment in which she said this:

"The application has a long history and this is the third occasion the parties have appeared before me. The first occasion was on 5 March when I heard the submissions of Counsel for the Defendant setting out matters in detail. I adjourned the application for the Plaintiff to obtain legal advice and for the matter to come back to me on 7 May. On that day, the Plaintiff was represented by counsel. A Legal Aid Certificate had been just issued and as a further indulgence I adjourned the application until today. Since then, the court has received from the Plaintiff's solicitor a copy of the Legal Aid Certificate showing that it was discharged by consent.

The Defendants say a finding once made in the High Court on a document which the Plaintiff says was binding was not such a contract means that the losses now claimed cannot be attributed to the Defendants. I am bound by findings of fact the High Court made and I cannot resist those facts and make my own interpretation. The Plaintiff cannot sustain otherwise.

The Plaintiff makes other complaints of a much wider nature. The Defendants' solicitors refused to accept instructions and the losses from the High Court can be visited upon the Defendants. He has indicated that his personal life has extreme problems and I don't doubt that but he seems to allege that those problems are the fault of the Defendants and the monetary claimed by the Plaintiff are in my view fanciful.

I must grant the Defendants' application and strike out the Particulars of Claim on both grounds, that they disclose no cause of action and are frivolous and vexatious. I am not just striking out the Particulars of Claim but the action is struck out."

I shall return to that reasoning below.

10

At the time that order was made the relevant rules were the County Court Rules and it is common ground that under CCR Order 13 rule 1(10) Mr Ali had a right of appeal against District Judge Hasan's order. It is now clear that he exercised that right by lodging a notice of appeal on 15 July 1998. Moreover, it is not suggested that he did not do so in time. As appears below, one of the ironies of the case is that if the court had fixed a date for the hearing of the appeal in, say, August 1998 it would almost certainly have been heard before April 1999 when the CPR came into force. None of the subsequent problems would then have occurred. I will return to the events of 1998 below.

11

When the matter was subsequently considered by His Honour Judge Green QC he described what then happened as follows:

"For some three years, between July 1998 and 25 August 2001, the Claimant and/or other of his solicitors did nothing save for a little activity for a few weeks in June and July 1999. On 18 th July 1999, the Claimant wrote to the Defendant's solicitors, saying that he had lodged an appeal. The Defendant's solicitors replied, expressing surprise that he had lodged an appeal when his case had been struck out as long ago as 8 th July 1998 and they had heard nothing since. Nevertheless the Defendant agreed not to pursue the taxation pending the outcome of the appeal. The Defendant then chased the Claimant and/or his solicitors to see what was happening to the appeal. They got no satisfaction, save for the following. On 18 th June 1999, the Claimant told them that he was pursuing his appeal and hoped that [his] solicitor would be contacting the court to progress it. On 6 th July 1999, Johnson Sillett Bloom, solicitors acting for the Claimant, wrote to the Defendant's solicitors, saying they were taking instructions on the circumstances surrounding his lodging of the appeal and in the meantime asked the Defendant to take no steps to enforce the costs order, provided of course that they kept the Defendant's solicitors informed of the progress of the application for legal aid for the appeal. The Defendant's solicitors chased the Claimant's solicitors several times, but heard nothing until, out of the blue … the court informed the parties of the date of the appeal, namely, 7 th May 2002.

To my mind, the conduct of the Claimant in failing to take any steps to deal with his appeal between July 1998 and 25 th August 2001, with the exception of those letters in June and July 1999, is unreasonable."

12

On the last occasion I said that on the basis of the facts there set out by Judge Green, his conclusion seemed unassailable. However I also observed that Mr Ali blames his solicitors, or indeed the court, for lack of activity in that period and I will return to the delay between 1998 and 2001 in the light of the submissions which have been made to this court by Mr Cranston. Mr Ali was unaware of paragraph 19(1) of the practice direction to CPR Part 51, which provides:

"If any existing proceedings have not come before a judge, at a hearing or on paper, between 26 April 1999 and 25 April 2000, these proceedings shall be stayed."

Paragraph 19(2) provides:

"Any party to those proceedings may apply for the stay to be lifted."

No such application was made. However, it appears that, notwithstanding that stay, the court fixed the date for the appeal as 7 May 2002.

13

After the appeal had been resurrected, Mr Hudson applied for a stay of the appeal. That application...

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