Southwark London Borough Council v Onayomake
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tuckey,Lord Justice Chadwick,Lord Justice Maurice Kay |
| Judgment Date | 19 October 2007 |
| Neutral Citation | [2007] EWCA Civ 1426 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2007/1054 |
| Date | 19 October 2007 |
[2007] EWCA Civ 1426
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(MR RECORDER WIDDUP)
Lord Justice Chadwick
Lord Justice Tuckey and
Lord Justice Maurice Kay
Case No: B5/2007/1054
Mr R Latham (instructed by Messrs Hartnells) appeared on behalf of the Appellant.
Mr A Underwood QC and Mr T Eaton (instructed by London Borough of Southwark Legal & Democratic Services) appeared on behalf of the. Respondent.
The defendant, Gabriel Onayomake, appeals from the decision of Mr Recorder Widdup made in the Lambeth County Court dismissing his appeal from District Judge Zimmels who had refused to reinstate his defence and counterclaim to these proceedings for possession by the claimant council.
In granting permission for this second appeal, Carnwath LJ said that it raised an issue of general importance as to the effect in a case of this kind of the negligence of legal representatives. For reasons which I will come to, I do not think that it does raise any such issue and that the appeal can be disposed of on rather more simple grounds.
The property in question is a two-bedroomed flat on the Priory estate in Peckham which the council let on a secure tenancy to the defendant's mother in September 1991. The defendant, then aged 19, is shown on the tenancy agreement as an authorised occupant of the flat and claims that he has lived there ever since. His mother died in January 2004 and it is his case that he has succeeded to her secure tenancy by virtue of the provisions of Sections 87 and 89 of the Housing Act 1985. The council dispute this on the ground that his mother lost her security tenure because she was in breach of the terms of a suspended possession order made in April 2000 on the grounds that she was in arrears with her rent. The defendant does not accept this but contends alternatively that the council created a new secure tenancy in favour of his mother in or after November 2002 by demanding and accepting increases in rent.
The council started these proceedings on 23 January 2006 in which the issues to which I have referred are canvassed in the pleadings which followed. All I need say about the merits of the defence and the counterclaim, which was for a declaration that the defendant has succeeded to his mother's secure tenancy, is that it is common ground that it has a reasonable prospect of success.
When the proceedings started the defendant, who was publicly funded, was represented by local solicitors, Glazer Delmar. Ms Fiona Dixon, an employed solicitor, had the conduct of his case. On 22 March 2006 at a hearing attended by counsel for both parties District Judge Zimmels allocated the case to the fast track and gave case management directions pursuant to CPR 28.2 which provided among other things for discovery by 13 April, service of witness statements by 27 April, trial to take place during the period 3 to 21 July, and each party to file a completed pre-trial checklist no later than 10 May 2006. The council filed its checklist on 10 May although by this time there had been no discovery or service of witness statements by either party. The council's checklist asked for the dates in the earlier order to be extended by six weeks. Ms Dixon was to say that in fact the parties had already agreed to extensions of one month.
By notice dated 15 May the court of its own motion ordered the parties to attend for a case management conference at 9.30 am on 23 May. The notice gave no clue as to why this order had been made, but it subsequently transpired that District Judge Zimmels had caused it to be issued because no pre-trial checklist had been received on behalf of the defendants.
Counsel for the council, Mr Eaton, appeared before the district judge at the appointed time. No one appeared for the defendant. So, on Mr Eaton's application, the judge struck out the defence and counterclaim and listed the claim to be heard undefended on 17 July. On 9 June the defendant's solicitors applied to reinstate the defence and counter claim pursuant to CPR 3.9(1). The application was supported by an affidavit from Ms Dixon. She said she had not received notice of the hearing on 23 May until the day before. It was then too late to instruct counsel so she decided to attend herself. The following morning she left home expecting to arrive at court by 9.15 am, but was unexpectedly delayed on the Underground and did not get there until 9.30 am. She was then held up in a queue at the security gates by the entrance to the court and did not arrive outside the district judge's court until some time later. She could not find the usher and did not knock on the district judge's door because she was worried that he would be angry if he was disturbed. Later when she saw the usher she was told that the matter had been heard in her absence and that the defence and counter claim had been struck out. She learnt that Mr Eaton had appeared for the council but was not able to speak to him because he was in court on other matters.
The court's order was not drawn up until 1 June and Ms Dixon said that she did not receive it until 6 June. But in the meantime she had tried unsuccessfully to discover from the council, the court and Mr Eaton what had actually happened in her absence on 23 May.
The application to reinstate the defence and counterclaim came before District Judge Zimmels on 17 July. By this time Ms Dixon no longer had the conduct of the defendant's case. He was however represented by Mr Paget, of counsel. We have a transcript of the first part of the hearing when it is clear that the district judge was very critical of Ms Dixon. He had expected her to attend and described her as “a disaster”. The transcript ends with the judge saying that he accepted that strikeout would be disproportionate and that it was not the defendant's fault but the fault of his legal representative. He could dispose of the matter that morning if there was an offer from the solicitors to pay the council's costs of the application. He adjourned to enable counsel to obtain instructions about this, but unfortunately he was unable to do so because he could not speak to any responsible solicitor at Glazer Delmar.
When the hearing resumed the judge was persuaded to refuse the relief sought. He apparently changed his mind when Mr Eaton reminded him that a pre-trial checklist had still not been filed on behalf of the defendant. We only have counsel's note of his judgment. The note shows that the judge did go through the CPR 3.9(1) factors. According to the note he said:
“…that the overall situation is that when directions were made on 22 March, listing questionnaires needed to be lodged by 10 May. The CMC was listed for 23 May. The defendant's solicitors failed to attend and the defence and counter claim was dismissed. There was then a later application for relief. Listing questionnaires to date 17 July 2006, whilst not intentional, had not been filed. This is an error of the solicitor. Valuable court time wasted. The claim needs to be resolved. It is one and a half months since aware of problem. Defence has done nothing. There is every evidence that she is not pursuing the case diligently. The witness statement does not deal with the listing questionnaire problem. There is one error after another. Therefore, notwithstanding the effect on the defendant, the application for relief is refused.”
Having dismissed the application, the judge then proceeded to hear the claim. We are told that he heard evidence and considered whether the...
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