Southern & District Finance Plc and Elizabeth Mary Turner/
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 07 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1574 |
| Docket Number | Case No: B1/2002/2716 |
| Date | 07 November 2003 |
| Court | Court of Appeal (Civil Division) |
[2003] EWCA Civ 1574
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRESTON COUNTY COURT
Judge Appleton
District Judge Bryce
Lord Justice Brooke
Vice-president of the Court of Appeal (Civil Division)
Lord Justice Longmore and
Sir Martin Nourse
Case No: B1/2002/2716
Bradley Say (instructed by Lonsdales) for the Appellant
Gabriel Fadipe (instructed by Graham Harvey) for the Respondent
This is the judgment of the court.
This matter has a convoluted procedural history. It is best to set out the history of the litigation first before we describe the route by which it has come to this court, and the matters we have to decide.
On 3 rd June 1992 the claimants Southern & District Finance Ltd made a loan to the defendant Mrs Elizabeth Mary Turner. The loan was secured on her property in Formby Road, Lytham St Anne's. Mrs Turner fell into arrears, and on 21 st May 1993 District Judge Woods made a suspended possession order. In due course a warrant for possession was issued, but this was suspended on terms in August 1993, these terms being later varied in April 1995.
On 22 nd January 2001 the defendant issued a notice by which she sought permission to counterclaim for a declaration as to the enforceability of the original loan agreement on the grounds that it had not been properly executed in accordance with the requirements of sections 60 to 65 of the Consumer Credit Act 1974 ("the 1974 Act") and the regulations made thereunder. She also sought to re-open the loan as an extortionate credit bargain pursuant to section 139 of the 1974 Act. At the same time she sought an order that the original possession order dated 21 st May 1993 should be set aside.
On 16 th March 2001 District Judge Bryce dismissed the application to set aside the 1993 order. He granted permission to counterclaim on a limited basis, however, and gave appropriate case management directions. The trial of the counterclaim was fixed to take place on 23 rd November 2001. The district judge directed that any order made on the counterclaim should be limited to relieving the defendant in whole or in part from any further obligations under the credit agreement; recovering payments she had made to the claimants on or [after] 22 nd January 1995 (save as to payments made pursuant to paragraph (2)(a) of the order dated 21 st May 1993); and any consequential orders as to costs. This order is said to have meant that although the defendant could maintain her contention that there was an extortionate credit bargain, she was not allowed to contend that the agreement had been improperly executed.
On 15 th November 2001 the defendant's solicitors told the claimants that they wanted the trial adjourned because they wished to appeal the March 2001 order. They knew they were out of time for appealing the order. On 22 nd November an order was made that the trial be vacated on the defendant's undertaking to file an application for permission to appeal out of time by 4pm on 30 th November 2001.
The appeal notice was filed on 29 th November 2001. It made no mention of an application for an extension of time. In due course Judge Appleton refused permission to appeal on paper. An oral hearing of the permission application was sought and fixed for 21 st February 2002. Prior to that hearing the claimants' solicitors wrote a letter to the court in which they observed that the application was made eight months out of time, and that no reasons for the delay had been given. This letter was not placed before the judge at the hearing, at which he granted permission to appeal the March 2001 order on the basis that it could not be said that the appeal had no real prospect of success. The fact that the application was so long out of time was apparently overlooked. The substantive appeal was in due course fixed to be heard on 5 th December 2002.
At the hearing of the appeal the judge took of his own motion the point at the beginning of the submissions in reply that an extension of time for appealing had never been sought. After hearing submissions, he gave a short judgment which had the effect of bringing the proceedings to an end, without any judgment being given on the merits. In due course an order was drawn up on 12 th December 2002 which simply directed that the appeal be dismissed and that the claimants' costs be added to the security.
Because of the procedural conundrum surrounding the question of the proper destination of any further appeal, it is necessary to consider the terms of the judge's oral judgment.
After setting out the procedural history, Judge Appleton said that it was only at the latest hearing that it was realised that relevant procedural provisions had not been observed. He referred to CPR 52.4(2) (which requires an appellant to file an appellant's notice at the appeal court within 14 days of the relevant decision of the lower court) and CPR 52.6 which provides:
"(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court;
(2) The parties may not agree to extend any date of time limit set by –
(a) these Rules;
(b) the relevant practice directions; or
(c) an order of the appeal court or the lower court."
He also referred to paragraph 5.2 of the Practice Direction to CPR Part 52 which provides that:
"If an appellant requires an extension of time for filing his notice then application must be made in the appellant's notice. The notice should state the reason for the delay and the steps taken prior to the application being made."
The judge then referred to the decision of this court in Sayers v Clarke Walker [2002] EWCA Civ 645; [2002] 1 WLR 3095, which prescribes that if an application is made for an extension of time for appealing after the original prescribed time for appealing has expired, in cases of any complexity the court should follow the checklist contained in CPR 3.9 when deciding whether to exercise its discretion to grant an extension of time for appealing.
The judge said that on this occasion an extension of time for appealing was not sought on the appeal notice. He added that CPR 3.9 prescribed that any application for relief must be supported by evidence, of which there was none. He said he had come to the conclusion, regrettable though it was, that there was no way round the problem for the defendant.
He then touched briefly on the merits, and indicated that there appeared to be force in the defendant's arguments, but he concluded his judgment by saying:
"It just occurs to me, if there is anything to be salvaged from the, as it were, wreckage of failure to comply with the rules, that if there is a sound argument then whenever the court in this particular case or with these particular parties is being asked to make an order the arguments can be revisited, but regrettable as it is, this has been an oversight on the part of the defendant's advisers which I simply, in the light of the Court of Appeal's guidance in Sayers v Clarke Walker, cannot see any way round. For these reasons the appeal is bound to fail."
The judge clearly thought that he was making an order dismissing the appeal, because he told the defendants' counsel that any application for permission to appeal would have to be made to this court. As we have said, his order was subsequently drawn up in those terms. When the Notice of Appeal was filed in this court, however, a question was raised whether the appeal properly lay to the High Court or to the Court of Appeal. On 13 th May 2003 Brooke LJ adjourned the paper application for permission to appeal to be heard on notice with the appeal to follow if permission was granted. He also gave the following directions:
"The court will first consider whether it or the High Court has jurisdiction to hear the application.
If it decides the High Court has jurisdiction one judge of the court … will immediately sit as a High Court judge (under section 9 of the Supreme Court Act) and hear the application, with the appeal to follow if permission is granted."
He said that he was directing this course because of the procedural complexities to which the matter gave rise.
The parties did not themselves address these procedural complexities until prompted to do so by a note prepared by Deputy Master di Mambro which was sent to them by a direction of the court last week. In response to this note the defendant contended that her appeal was directed at Judge Appleton's refusal to exercise his discretion to waive the irregularity pursuant to CPR 3.10 and thereafter to apply the criteria contained in CPR 3.9 in determining whether or not to grant an extension of time. In that case the appeal would lie to the High Court because it would be a first appeal, not a second appeal ( Foenander v Bond Lewis & Co [2001] EWCA Civ 759; [2002] 1 WLR 525).
The claimants for their part suggested that there were at least four different ways of analysing the judge's decision:
(i) The judge dismissed the appeal on the grounds that permission to appeal should not have been granted. They accept that this analysis can arguably be criticised because the judge never determined the actual substance of the appeal.
(ii) The judge refused to entertain an application for an extension of time. They rejected this analysis on the grounds that the judge's substantive reason for doing what he did was that there had been no such application and there was no evidence on which he could entertain an...
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Oliver Mcdonna Appellant v Benjamin Wilson Richardson Respondent [ECSC]
...which the court has jurisdiction to cure, as the English Court of Appeal pronounced inSouthern and District Finance v Turner [2003] EWCA Civ. 1574.18 The critical difference between filing an appeal out of time and filing an appeal without leave is that in the one case the right of appeal e......
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...in two cases: Foenander v Bond Lewis & Co [2001] EWCA (Civ) 759, [2002] 1 WLR 525, and Southern & District Finance plc v Turner [2003] EWCA (Civ) 1574. The learned county court judge, rather than dealing with an application for permission to appeal on its merits, disposed of the appeal upo......
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...which the Court has jurisdiction to cure, as the English Court of Appeal pronounced in Southern and District Finance v Turner ([2003] EWCA Civ. 1574). The critical difference between filing an appeal out of time and filing an appeal without leave is that in the one case the right of appeal ......