R Davies v Kingston Upon Thames County Court
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Lambert |
| Judgment Date | 07 July 2014 |
| Neutral Citation | [2014] EWHC 4589 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8556/2013 |
| Date | 07 July 2014 |
[2014] EWHC 4589 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Bristol Civil and Family Justice Centre
2 Redcliff Street
Bristol
Bristol
BS1 6GR
His Honour Judge Lambert
(Sitting as a Deputy High Court Judge)
CO/8556/2013
Miss Davis appeared on behalf of the Claimant
Miss Groaning appeared as the Interested Party
THE DEPUTY JUDGE: This is the substantive hearing of an application for judicial review against the decision of Her Honour Judge Williams, when on 8th May 2013 she refused permission to appeal an order of the District Judge which itself refused to set aside a default judgment entered against the claimant on 19th March 2010.
It is with some trepidation that I embark upon an examination of the decision of another Circuit judge. That judge is of course of equal rank. My own view is that such cases should not normally be dealt with by a deputy, in the same way as Cart-type appeals would not normally be dealt with by a Deputy Judge of the High Court in order to avoid judges of equal rank re-examining each other's decisions. However, on the grant of permission the single judge stated this case was "very suitable" for a deputy. It would cause injustice if I were now to adjourn further to preserve comity between judges. I hope history proves the single judge to be right.
Miss Davis has argued the application with vim and vigour and with great ingenuity and I am very grateful to her for the very clear submissions she has placed before the court. The claimant here submits that the Circuit judge's judgment contained significant errors, including reliance upon a document which is not shown to the claimant, an error of law, and failures to consider essential elements of the claimant's submissions that she was required to address properly in order to adjudicate upon the claimant's application. The claimant submits that the errors before the Circuit judge were sufficiently serious so as to breach the claimant's right to a fair hearing, making it appropriate for this court to intervene and quash the decision of the Circuit judge.
This is all about rented property. The rented property was initially let to the claimant under an assured short-hold tendency entered into on 12th December 2005 for a fixed period for a year. In August 2009 the claimant indicated her intention to vacate the property and she later did so. In an undated letter from the claimant to the interested party she indicated any outstanding rent could be taken from the deposit. On 19th January 2010 the interested party issued a claim against the claimant in these proceedings from the Truro County Court for the sum of £3,800 comprising unpaid rent, a month's rent in lieu of notice, to be offset by the £800 deposit, and £3,000 for unparticularised damage to the rented property. In the claim form the interested party provided the rented property as a service address of the claimant on the basis that she then believed the postal redirection service was in place from the rental property to whatever the claimant's current address was, this being unknown to the interested party.
A default judgment was eventually entered against the claimant on 19th March 2010. The claimant's case throughout has been that she never received a claim form, or indeed any papers informing her of the default judgment.
The claimant's application to set aside judgment was eventually heard before the District Judge on the 24th September 2012. There were notable and regrettable failure properly to serve the claim by the court on which I will not dwell, but which is such as would cause anyone concern. The claimant eventually attended the hearing before the District Judge unrepresented. She says she found the proceedings difficult to follow. She says she had not even seen a copy of the claim form and the particulars attached to it, short though those might have been. The interested party had served various documents which were before the District Judge at that time. The claimant had not been provided with those. She says she was not shown these at the hearing at first instance.
The District Judge dismissed the claimant's application on the grounds that she had no real prospect of successfully defending the claim and there was no good reason why she should be allowed to do so given the length of time which had now passed since the judgment was initially entered. The District Judge stated:
"I am not satisfied on the evidence before me that Miss Davies had not received the original claim form documents or the judgment. A considerable amount of time also passed after judgment was entered. The period of time which the court in decided cases have held to be too long a period of time. In any event after Miss Davies sought to set aside the judgment of February 2011, there have been two court hearings which Miss Davies has not attended. She has claimed she did not received notices of those hearings either. That is something that I have to take into account in the exercise of my discretion. I am not satisfied that Miss Davies has a real prospect of successfully defending this claim in circumstances where she has not paid any rent in terms of the period claimed and the period in lieu of notice. I am not satisfied that she has given notice to the claimant, Mrs Groaning, in this matter, as she was required to do under the tenancy. Miss Davies accepted she was not given any notice because she was unable to do so because her computer was broken. In my view the e-mail she sent to Mrs Groaning on 13 August 2009 saying she was looking for a property was not sufficient to be a formal notice. I am also satisfied she has not made out a sufficient case in relation to her claim for damages in respect of the state of the property which she had obligations under the tenancy to repair.
In all the circumstances, in my judgment, I do not consider that Miss Davies has a real prospect of successfully defending this claim. In addition, I am not satisfied in my discretion that there is any good reason why I should allow Miss Davies to defend this claim in view of the length of time which has passed since the judgment was obtained, particularly where I am not satisfied Miss Davies did not receive the claim form and other documents prior to judgment being entered and where there have been considerable failures on her part to attend hearings and make her application to set aside promptly. In these circumstances I dismiss the application to set judgment aside."
The claimant sought to appeal the decision of the District Judge. Permission to appeal was refused on the papers on 1st February 2013. The application was renewed and an oral hearing before the Circuit judge on 8 May 2013. At that hearing the Circuit judge refused the claimant's application for permission to appeal. She stated:
"I have looked again at Part 6.9 and I am not satisfied there is a procedural error made by the District Judge."
The learned judge then set out Part 6.9(3), (4) and (6) [notably she did not refer to sub rule 5]. The learned judge continued:
"It is argued on behalf of the appellant today that the claimant did not comply with that rule. It seems to me that the District Judge found that that was complied with and there was no procedural irregularity. What has happened was there was a postal redirection in place. The claim was issued and was served within the redirection period.
Now it was submitted today that the redirection ended on 8 January 2010 and that the appellant had before District Judge Lamb told her in error it ended on 19 March. It is said further that there at the note of judgment at paragraph 6 there is an error and the District Judge refers to a redirection for the appellant, the period 27 November 2009 to 27 February 2010 which would clearly cover the relevant period. However, there is such a redirection and it is on the court file. It was submitted by the respondent in fact as Exhibit 8, to a letter that she put it. I have seen that today. It is addressed by Royal Mail to occupiers 5 Park Square and it says:
'Miss Jolanta J Davies redirection from 27 November 2009 to 27 February 2010. That was before the District Judge on the day and that, it seems to me, is sufficient proof covering that period and indeed that point. I note that it was not included in the appeal bundle. I did not have a chance to ask why, but it is not there [see now A43 in these proceedings].
In relation to the second matter which is under Part 13.3: is there a real prospect of successfully defending the claim or some other good reason why the appellant should be allowed to do so? I was taken to a four page letter written by the appellant to the Truro County Court, which is said to be the grounds of her defence. I have established today with her representative in court that this is not a defence as such because clearly she had already admitted and it is common ground that she was not given proper notice and there was outstanding rent due but in relation to the repairs claimed this is said to be her defence. But it is not a defence as such. What it is is a counterclaim which she thinks she may wish to rely on as a set off. Now, I do take into account at this point and given all this history that that counterclaim is still open to her to pursue if she wishes to do so. She has not done so to date but she is not barred from doing so. The matter has not been adjudicated upon and she can issue a claim in respect of that if she wishes to do so and effectively sue Mrs Groaning in respect of her repairs...
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...the only authority considering a similar point to which I was referred was R (Davies) v Kingston upon Thames County Court [2014] EWHC 4589 (Admin). In that case, the claimant's landlord served proceedings on the claimant at the property which it was known the claimant had vacated, on the b......