Shafique Patel (Claimant/Appellant) v Abdul Mussa
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Lewison,Lady Justice King |
| Judgment Date | 29 April 2015 |
| Neutral Citation | [2015] EWCA Civ 434 |
| Docket Number | Case No: B2/2014/3848 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 2015 |
[2015] EWCA Civ 434
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CROYDON
His Honour Judge Ellis
1CR00468
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
Lord Justice Lewison
and
Lady Justice King
Case No: B2/2014/3848
Mr. Simon Buckhaven (instructed by Haider Kennedy) for the appellant
Mr. Gerard Heap (instructed by Bhailok Fielding) for the respondent
Hearing date: 18 th March 2015
Background
In January 2012 the appellant, Mr. Patel, and the respondent, Mr. Mussa, entered into an agreement to compromise certain proceedings then pending between them relating to their joint business ventures. As will become apparent, it is unnecessary for the purposes of this appeal to describe in any greater detail the nature of those proceedings. It is sufficient to say that the terms of the compromise were contained in a schedule to a Tomlin Order, pursuant to which the proceedings were stayed, save that the parties were given permission to apply to the court for the purposes of enforcing the agreement.
In due course Mr. Patel applied to the court for an order enforcing the agreement. On 16 th January 2014 the matter came before District Judge Jackson in the County Court at Croydon, who, after hearing argument, dismissed the application. The next day Mr. Patel's solicitors wrote to the court asking for permission to appeal, but, having received no response, after some days they made an application to a circuit judge for permission to appeal.
The proceedings below
On 18 th February 2014 the application came before His Honour Judge Ellis, who listed the hearing of the appeal for 12 th May 2014 and gave the following, among other, directions:
(i) that the appellant file and serve a skeleton argument by 4 th April 2014;
(ii) that the respondent be at liberty to file a written submission in response if he considered that there was some material inaccuracy in the papers placed before the court; and
(iii) that the appellant file a bundle of documents for use in the appeal, paginated and indexed, not less than three clear days before the hearing of the appeal.
Mr. Patel failed to comply with the directions. His skeleton argument was not filed by 4 th April 2014, but was sent to the court by email at 7.07 am on Monday, 12 th May 2014, the day of the hearing. The appeal bundle should have been filed no later than Tuesday, 6 th May 2014. On Friday 9 th May 2014 Mr. Patel's solicitors sent to the court by fax and email 36 pages of documents extracted from the three lever-arch files that had been lodged for the hearing before the district judge and were still in the court's possession. According to the solicitors, they were assured by court staff that the bundle would be placed before the judge that afternoon. At 9.30 am on 12 th May 2014 a bundle containing hard copies of the documents sent to the court electronically on 9 th May was lodged at court with a request that it be placed before the judge immediately "for his convenience". A second copy of the main bundle was also delivered to the court that morning.
On 12 th May 2014 two matters were listed for hearing before Judge Ellis: Mr. Patel's application for permission to appeal and an unrelated application for summary judgment. Mr. Patel's application was estimated to last one hour and the application for summary judgment the rest of the day. Although Mr. Patel's application was second in the list, the judge, unsurprisingly, decided to take it first. When the application was called on the judge complained that he had received the papers only ten minutes earlier and had not had time to read the bundle, much less to refer to the three lever-arch files which constituted the main bundle. He said that rather than adjourn the matter to another day he would apply the Mitchell principles. The failure to comply with his earlier directions was not trivial and no reasonable excuse for it had been put forward. He therefore dismissed the application.
The judge's order
On 13 th May Judge Ellis completed Form N460 in which he gave the reasons for his decision. In the box with the side heading "Result of hearing or trial" he wrote:
"Application dismissed. In breach of the directions order made and the CPR the appellant filed the skeleton argument and hearing bundle at court 10 minutes before the hearing. The breaches were not trivial – Mitchell applied."
In the box headed "Brief reasons for decision to allow or refuse appeal" he wrote:
"Non-compliance not trivial. No good reason for the default. In light of Mitchell an appeal would have no reasonable prospect of success."
The order disposing of the application provided that the application for permission to appeal against the decision of District Judge Jackson "is dismissed."
The appeal
On 29 th May 2014 Mr. Patel filed a notice of appeal in this court against Judge Ellis's order. In his first ground of appeal he referred to section 55(1) of the Access to Justice Act 1999, which imposes more stringent requirements for a second appeal to this court, and submitted that his appeal satisfied those requirements because it raised the question whether the Mitchell principles, and in particular Judge Ellis's application of them, were compliant with article 6 of the European Convention on Human Rights ("the Convention"). His second ground of appeal was that, in believing that the skeleton argument and appeal bundle had been filed ten minutes before the hearing, the judge had misunderstood the true position and had exercised his discretion on a false basis. In his third ground of appeal he referred to CPR 3.9(1) and alleged that the judge had failed to give any or any adequate weight to all the circumstances of the case. He therefore contended in his fourth ground of appeal that the application for permission to appeal ought to have been heard and judged on its merits rather than being summarily dismissed.
It was necessary for Mr. Patel to obtain permission to appeal from this court, for which he duly applied in his notice of appeal. His application was considered on paper by Aikens L.J., who granted permission on the sole ground that it was arguable that there had been unfairness in the process of Judge Ellis's decision to refuse permission to appeal and that there had been a breach of Mr. Patel's rights under article 6 of the Convention. In so doing he expressed the hope that the court, when hearing the appeal, would take the opportunity to reconsider the ambit of the so-called "residual jurisdiction", by which he meant the jurisdiction recognised in CGU International Insurance Co. Plc v AstraZenica Insurance Co. Ltd [2006] EWCA Civ 1340, [2007] Bus. L.R. 162.
The residual jurisdiction
The concept of a residual jurisdiction vested in the Court of Appeal to hear appeals from the High Court in certain cases was originally developed in response to section 69(8) of the Arbitration Act 1996. As is well known, section 69 of the Arbitration Act 1996 imposes on the right of appeal to the High Court against an arbitration award stringent restrictions, which are themselves reinforced by section 69(8). Section 69(8) provides that leave to appeal against an order of the High Court refusing leave to appeal against an arbitration award can be granted only by the High Court itself. On the face of it, therefore, this court has no jurisdiction to give permission to appeal against such an order.
In North Range Shipping Ltd v Seatrans Shipping Corp [2002] EWCA Civ 405, [2002] 1 W.L.R. 2397 an application for leave to appeal against an arbitration award was dismissed by the judge on the grounds that it did not meet the statutory criteria. He did not elaborate on his reasons for reaching that decision and refused leave to appeal. The appellant sought leave to appeal from this court to enable it to seek an order that the application be remitted to the High Court for rehearing because the judge had failed to give adequate reasons for his decision.
The court recognised that as a result of section 69(8) of the Arbitration Act it had no jurisdiction to entertain an appeal on the merits of the judge's decision, but it was persuaded that, since a party's right to complain of an unlawful judicial act is limited by section 9(1) of the Human Rights Act 1998 to the exercise of a right of appeal, the court was required to afford the applicant a right of appeal to enable it to complain that the process by which the judge had reached his decision was unfair and contravened article 6 of the Convention. Basing himself on certain dicta of Mustill L.J. in Aden Refinery Co. Ltd v Ugland Management Co. Ltd [1987] Q.B. 650 to the effect that the court has power to intervene in cases where the judge in truth never reached a decision at all, whether as a result of bias, chance, whimsy or personal interest, Tuckey L.J., giving the judgment of the court said:
"If, as is accepted, there is a residual jurisdiction in this court to set aside a judge's decision for misconduct then there can be no reason in principle why the same relief should not be available in a case of unfairness. Each is directed at the integrity of the decision-making process or the decision-maker, which the courts must be vigilant to protect, and does not directly involve an attack on the decision itself. This court has of course the general power to set aside decisions under CPR 52.10 (2)(a) and we do not think in the exceptional circumstances envisaged by such...
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