Philliips v Symes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,Lord Justice Waller: |
| Judgment Date | 05 December 2003 |
| Neutral Citation | [2003] EWCA Civ 1769,[2003] EWCA Civ 1452 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2003/2068,A3/2003/2068, A3/2003/1259 |
| Date | 05 December 2003 |
[2003] EWCA Civ 1452
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT CHANCERY DIVISION
(MR JUSTICE PETER SMITH)
Lord Justice Carnwath
A3/2003/2068, A3/2003/1259
MR BURNETT QC and MR HATTAN (instructed by LANE & PARTNERS) appeared on behalf of the Claimants
MR STEINFIELD QC, MR STEPHENS and MISS CHAPPELL (instructed by BRACHER RAWLINS) appeared on behalf of the Defendants
I will direct that the application for permission to appeal in 2003/2068 be adjourned to come on as soon as possible, preferably on or about 3rd November. I will direct that the substantive hearing of the appeal be dealt with consecutively with the application for permission to appeal. That can be dealt with by two Lord Justices, one of whom should be a Chancery Lord Justice. If possible it should be a date on which the present counsel, Mr Burnett and Mr Steinfield, can be available, although that cannot be determinative.
I will direct that the application for permission to appeal in 2003/1259 should come on as an application for permission to appeal at the same time (but not with the substantive hearing following, if permission is granted). The estimate is two days.
Any further directions should preferably be agreed by the parties. I will deal with any application in writing in the first instance, and will indicate if a hearing is required.
(A short discussion)
I am going to stay the directions given by Peter Smith J in paragraphs 9 to 11 of the order of 9th August pending further order from this court or the court below, but direct that by 20th October the solicitor for Mr Symes provide a statement indicating whether Ms Nussberger and Mr Domercq are to be called as witnesses in the current proceedings in this country, and if so, for what purpose, and what the nature of their evidence is to be. That is, of course, on the understanding that if they do give evidence they must expect to attend and to be cross-examined on it. I will direct that the matter come on on 3rd and 4th November (which I am now informed is a possible date for the court). I have noted what Mr Steinfield says about the directions in paragraphs 9 to 11 of the judge's order. It is time that the parties should have prepared their evidence with that programme in mind. However, I think it is sensible for the parties to be able to prepare their final evidence in the light of the form of hearing which the Court of Appeal decrees should go ahead. That makes it appropriate to delay the further steps for exchange of evidence until that hearing. It would help if some thought could be given to a slimmed-down bundle, which has the relevant skeletons and judgments in it, and to limiting the references which need to be made to the transcript.
Order: Application 2003/2068 is adjourned to come on on 03/11/03; application 2003/1259 to come on at the same time. The directions given by Peter Smith J in para 9–11 in the order dated 09/08 are stayed. Costs in the appeal.
[2003] EWCA Civ 1769
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE PETER SMITH
Lord Justice Waller
Lady Justice Hale And
Lord Justice Carnwath
Case No: A3/2003/2068
A3/2003/1259
Mr Alan Steinfeld QC and Mr John Stephens (instructed by Messrs Lane & Partners) for the Claimants/Applicants
Mr Stephen Schaw-Miller (instructed by Messrs Bracher Rawlins) for Bracher Rawlins on the preliminary applications only for the Defendants/Applicants
This is the judgment of the court to which we have all contributed.
Introduction
This judgment is concerned with three applications for permission to appeal made by Mr Robin Symes which following directions from Carnwath LJ made on 13 th October 2003, came before the court on 3 rd November 2003. Carnwath LJ in the directions he gave distinguished between the three. The first was an application for permission to appeal a judgment of Peter Smith J dated 2nd May 2003 under which he ruled as to the ownership of a statue in the context of proceedings for contempt then being pursued against Mr Symes. Carnwath LJ directed that the application should be heard inter partes, and if permission were granted the appeal would be heard at some date thereafter. In relation to the second and third, which were applications to appeal rulings by Peter Smith J made on 29 th August 2003, he directed that if permission to appeal were given the appeal should follow. Those rulings were, first, that Mr Symes should attend for cross examination on 3 rd November 2003 on various matters, the detail of which will be apparent hereafter. The second ruling was that the judge should not recuse himself from presiding over that cross examination. The urgency with which these latter two applications had to be dealt with was the reason for that direction. Special arrangements were made to list the applications with the full support of those representing Mr Symes and those representing the respondents, as soon as possible leading to that listing on 3 rd November 2003 for a two day hearing. Substantial skeletons were lodged by both sides as a matter of urgency, and the applications were made ready for hearing.
On Thursday 30th October 2003, we heard an application made by Mr Burnett QC instructed by Mr Slade on behalf of Mr Symes, to adjourn the applications on the grounds that Mr Symes' mental condition was such as to make the taking of instructions from him impossible. The respondents did not accept the state of Mr Symes' mental condition and resisted the adjournment. They pointed out that no suggestion of any such difficulty had been mentioned as at 13 th October 2003, and in any event submitted that, so far as the applications and any appeals were concerned, proper instructions had already been given. We refused the adjournment.
The application was however renewed at the commencement of the hearings on Monday 3 rd November, coupled with an application by Mr Slade (the solicitor acting for Mr Symes) to come off the record if an adjournment was refused. This application was made by Mr Schaw-Miller instructed by Mr Slade, but with instructions limited to making the application to adjourn, or if necessary the application for Mr Slade to come off the record. The basis of Mr Slade's anxieties were, first, that he could not obtain instructions, but in addition (as he made clear by a statement put in by him) he had become aware of information that necessitated the review of an affidavit sworn by Mr Symes in relation to which he could not obtain proper instructions. Again the condition of Mr Symes was disputed by the respondents, and they resisted an adjournment.
Obviously if there were ever to be a question of Mr Symes being cross examined, and indeed if there were a question as to whether he could give instructions in areas where he had not already done so, his mental condition would have to be determined, or arrangements made for a litigation friend. But equally the applications were urgent, and had been fully prepared, and it was difficult to see how Mr Symes' mental condition affected the ability of the court to deal with those applications. We suggested that Mr Slade's anxieties in relation to his desire to review certain aspects of the evidence did not preclude the court continuing to deal with the applications. He had made clear his reservations as to the contents of the affidavit. That affidavit was not being placed before the Court of Appeal, as one on which this court was being asked to rely in the context of dealing with the correctness or otherwise of the judge's rulings. We further repeated our views that instructions had already been given for the appeal to proceed, and it was not possible to see having regard to the extensive skeletons already filed, how further instructions were needed.
It would, however, have been unsatisfactory for the applications simply to be dismissed without consideration of the arguments raised in the skeletons. Mr Schaw-Miller was not instructed to argue the applications, but very extensive written submissions prepared by Mr Harold Burnett QC and Mr Simon Hattan had been placed before the court. Mr Steinfeld QC for the respondents very properly conceded that, if the applications continued and if permission to appeal were granted in relation to the two applications where appeals were to follow, the right course was for the court to consider the merits by reference to the written submissions. He also accepted, when we suggested that even handedness demanded it, that it was appropriate for the court not to hear further oral submissions by either...
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