A3/1999/8024

Neutral Citation Number: [2001] EWCA Civ 1174
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
(Mr Justice Jacob)
								Royal Courts of Justice
								Strand
								London WC2

								Thursday, 5th July 2001
B e f o r e:

LORD JUSTICE PETER GIBSON
LORD JUSTICE KAY
LADY JUSTICE ARDEN

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FRANCES WINIFRED MELHUISH
Respondent

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PETER WILLIAM WATERS
Applicant
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant did not appear but was represented by his Mackenzie friend Miss Joseph.

The Respondent appeared in person.

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J U D G M E N T
Thursday, 5th July 2001 
1.	LORD JUSTICE PETER GIBSON: I will ask Arden LJ to give the first judgment.
2.	LADY JUSTICE ARDEN: This is a renewed application for permission by Mr Waters on notice to the proposed respondent, Mrs Melhuish, to appeal from the order of Jacob J dated 12th November 1999. This application for permission first came before Morritt LJ and Charles J on the 12th May 2000. 
3.	The applicant and the respondent are executors of the will of their mother, Winifred Waters, who died on 5th January 1997. Probate of her will was granted on 12th February 1997. A dispute has arisen between the two executors. Mrs Melhuish applied by summons on 14th May 1998 for leave to distribute the estate. Mr Waters responded by claiming an account. 
4.	The case was due to come on for trial on 12th November 1998. Five days before that Mr Waters' counsel indicated that he would not be available for trial and new counsel was appointed. 
5.	The proceedings had been issued in the Bournemouth District Registry, but the trial came on before Jacob J, sitting in Bristol, on 12th November 1999. There is a transcript of the very short hearing that took place before the judge and I would like to read some extracts from it, starting at page 1H:
“MR WATERS: ... My Lord, I apologise for any time that has been taken up by the court, but an unusual situation has arisen and that is that the barrister who is instructed by my firm of solicitors has been instructed just within the last few days in the sense that he would negotiate an offer with the other parties but he has told me this morning that he will negotiate an identical settlement negotiation. He will not fight my case.
MR JUSTICE JACOB: You need not tell me about all that, anyway. I am not going to grant an adjournment in this case. I can tell you that. This case does not warrant it. Counsel is still here if you want to use him. This case does not warrant an adjournment. 
MR Waters: Can you adjourn it for ten minutes please?
MR JUSTICE JACOB: Yes, I can if it is for ten minutes. 
MR Waters: Okay.
MR JUSTICE JACOB: But my firm view on this matter, Mr Waters, is that this case should finish today. You have had the authority. You state it in your own affidavit that you regard the matters in this case as being out of all proportion, and this case has to finish today in the interests of everybody. Not only finish today, but this morning. You can have ten minutes.” 
6.	Then the transcript records that there was a short adjournment.
7.	After the short adjournment Mr Garrod, who had been instructed by Mr Waters but who had been dismissed by Mr Waters, came back into court and said this:
“MR GARROD: My Lord, I apologise for the inconvenience. I have now been reinstated. May I take brief instructions from my client?
MR JUSTICE JACOB: Yes.
MR GARROD: My Lord, I believe we have reached an agreement. If your Lordship would give us five minutes to draft an order we can complete this. 
MR JUSTICE JACOB: Very well.” 
8.	Then the counsel appearing for Mrs Melhuish spoke. His name is Mr Parker: 
“MR PARKER: I think it might be prudent if we indicated your Lordship what the terms of the agreement are. As I understand it, what my learned friend is indicating is that his client will sign the estate account, subject to the Wessex Water shares, that his client will receive the car not as part of his share and that he will pay £3,750 towards the costs of the action to be called from his share. 
MR JUSTICE JACOB: Very well. 
MR PARKER: The claimant shall have the balance of her costs out of the estate.
MR JUSTICE JACOB: Yes. That sounds very sensible.”
9.	There was another short adjournment after which counsel returned into court: 
“MR PARKER: May I hand in what is, I regret, a rather rough handwritten draft of the body of the order and then, of course, prepare another draft.”
10.	The transcript then records that he handed in an order. 
“MR JUSTICE JACOB: Assessed rather than taxed?”
11.	That appears to have been a reference to the provision for costs in the order. 
“MR PARKER: Yes, of course. 
MR JUSTICE JACOB: Very well.
MR PARKER: We are very grateful.” 
12.	It appears that Mr Garrod was present throughout that exchange.
13.	The order of Jacob J was drawn up on 16th November 1999. That means that it received the formal seal of the court on that date. Part of the order only is in the bundle before the court today. It provides, of course, that it is an order of Jacob J sitting on 12th November 1999. It recites that the order was made “upon hearing Counsel for the Claimant and for the Defendant”, and it recites further that: 
“...upon the parties agreeing that the Defendant shall be entitled to retain the motor car referred to in the originating summons and that the Claimant shall transfer to the Defendant the deceased Wessex Water PLC shares, the said items not forming part of the Defendant's beneficial share in the estate of the deceased”. 
14.	Then the order recites in capital letters:
“BY CONSENT
IT IS ORDERED THAT 
1.The Claimant shall be at liberty to distribute the estate of the deceased in accordance with the account annexed to this order.
2.The Defendant shall pay the sum of £3,750 towards the Claimant's costs of this action.
3.The balance of the Claimant's costs of this action shall be paid out of the estate of the deceased, the same to be assessed if not agreed.”
15.	As I have said, that order states clearly that it is “by consent”. The authorities are quite clear that, where an order is made by consent and is subsequently sealed by the court, it is only possible to set aside the order by bringing a new set of proceedings, that is a new action, in which it is successfully asserted and proved that the consent was not given, as the order says. So once the order was sealed a critical point was reached. But on the day before the order was sealed Mr Waters drafted and signed a letter, which he proposed to send to the judge, requesting that the order should be set aside. He did not in fact deliver the letter on that (or any other) day and so the court did not receive his application to set the order aside. The position is, according to Mrs Joseph who has appeared as Mr Waters' Mackenzie friend today, that he wrote the letter, that he spoke to the judge's secretary (by whom I think she means the judge's clerk) and was told that he would have to go to the Court of Appeal. The letter appears in our bundle and I will quote a few extracts from it to explain Mr Waters' attitude to the order.
16.	On the second page of the letter in sub‑paragraph (f), he says this (and underlines it):
“The Order of 12/11/99 was Not by Consent.” 
17.	He continues thus: 
“The decision was against my wish and against my specific instruction. The whole procedures appeared to be a sham; it appeared to be a trick. I felt that it was a carefully engineered plan and calculated intention and mitigated against the trial going ahead. One complete day of 12 November had been reserved for the hearing. The trial never went ahead, there was no settlement, it was an agreement between the two barristers that was imposed on me and I was completely against it, but my co-executor was naturally quite satisfied with the deal.
g)The conduct of the case was dictated to me. I had repeated requests from my barrister to sack him if I did not accept the unsuitable agreement in its entirety. He had no intention of carrying out my instructions. I was left with no option but to accept the agreement or be left without representation. Neither of them was a just outcome for me. I would have hoped that my rights to justice would be respected.” 
18.	Then at a later extract in his letter which was a long letter, he says: 
“23.But when we entered to the court and sat in court, Mr Garood talked to the other barrister quietly for a few seconds. The other barrister got up and for couple of minutes said something before the judge. Then my barrister got up and did the same and the judge left. When I realised what had happened, I became extremely upset and asked Mr Garood why he did not go ahead with the trial in spite of my insistence and my solicitor's request. He said `you could have, stopped me while I was talking before the judge about the settlement.' I complained against his decision and his actions. He made a show of himself in court in front of everybody. He was shouting at me, complaining about me and blaming me for everything. His attitude was both embarrassing and intolerable. I said to him `do you mind?' He then started apologising.
24.I had no say in the proceedings whatsoever. Mr Garood did not argue the case but instead made a deal against my wishes and without my consent. In fact after the judge left I asked Mr Garood why he did not fight the case for me as agreed. Mr Garood then shouted at me and was very rude to me in front of everyone in court. I knew I would not get anywhere with this kind of attitude.” 
19.	At the very end of this letter, he says that he did not have “access to the trial” where he could put over his side of the case and his solicitor's argument, he requests that appropriate forms be sent to him to have the order set aside to enable him to proceed to a trial and he asks for the order to be set aside and a new date set for trial and that he would look forward to hearing from the judge as soon as possible. 
20.	As I have explained, that letter was not in fact sent to the judge so that the judge did not actually have to deal with an application in terms of that letter. So the matter came straight to the Court of Appeal without the decision of the judge on the question whether the order should be set aside. Indeed the order was drawn up and sealed on 16th November with the effect that I have already explained. 
21.	Mr Waters duly made his application to the Court of Appeal, and it came before the Court of Appeal (Morritt LJ and Charles J) on 12th May 2000. I now turn to the transcript of the ruling given on that occasion by Morritt LJ and to paragraph 15 of that document. Morritt LJ said this: 
“15.In the course of his argument this morning Mr Waters has said, as he had in the submissions that he made on paper, that that order was not made with his consent. He went into (on paper at least) some detail as to the course of the dispute with his counsel, Mr Garrod, and he indicated to us that he himself had intervened in the face of the court and protested that what was being done was not being done with his consent. He indicated (and there is no evidence to the contrary) that he did not sign the piece of paper that counsel for the claimant handed up after the second adjournment, but that he had interrupted and suggested that he was not bound by the consent. He told us that his solicitor was not present, as he should have been to instruct counsel, and there was therefore nobody there to intervene on his behalf, had it been the case, that his protest had otherwise gone unnoticed.”
22.	That is an important paragraph, because it is saying that Mr Waters had told Morritt LJ and Charles J on 12th May that he himself had intervened in the face of the court and protested that what was being done was not being done with his consent and that he had interrupted and suggested that he was not bound by the consent. 
23.	Then Morritt LJ went on: 
“16.On 15th November Mr Waters wrote a letter to Jacob J asking him to set aside his order and to proceed to trial. I had been under the impression that the order had indeed been sent to the judge, but Mr Waters clarified that this afternoon and informed us that he also got in touch with the court staff and was directed by them to apply to this court rather than to apply to the judge to set aside the order which had been made apparently by consent. Thus it was that on 16th November 1999 the order was duly passed and entered. It provides, as I earlier indicated, that it was made by consent. It gave liberty to the claimant to distribute the estate of the deceased in accordance with the account annexed to the order, directed Mr Waters to pay £3,750 towards the claimant's costs and provided for the balance of the costs to be paid out of the estate of the deceased.
17.Mr Waters then applied for permission to appeal on 10th December 1999. Either shortly before, or more likely after that, he was sent a draft of the transcript of the proceedings before Jacob J. He told us that on receipt of the draft he had realised that it was incomplete because his interventions had not been recorded, and he got in touch with the shorthand writers to protest at the omissions from the official transcript. He told us that their response was that what they had to transcribe was what can be heard on the tape and offered to provide the tape to Mr Waters to listen to for himself. As I understand it that offer is still available but has not been taken up.” 
18.The usual rule is set out quite clearly in the passage in Volume 2 of the Supreme Court Practice for 1999 in paragraph 17 A-23, that is:
`When a final judgment has been passed and entered the Court cannot set it side unless a fresh action is brought for that purpose, although it has been entered by mistake.'
19.-and then omitting the reference to various authorities it continues:
`A Court has no power to vary a consent judgment or order made previously in that Court and therefore the only means open to a party to set aside a consent judgment or order on the ground of fraud or mistake is to bring a fresh action for that purpose.' 
20.In cases in which a consent has apparently been given but has been withdrawn and the order has not been drawn up, then of course it is possible for the person who says his consent was wrongly, or not given, to apply to have the order set aside before it has been passed and entered; but that was not done in this case and therefore, if the practice that previously prevailed under the old rules is the practice to be followed by the court under the new, then the appropriate course for Mr Waters to take would be either to apply to the judge to set aside the consent order, but that would be likely to fail because the order has been drawn up; or to institute fresh proceedings to have the order set aside, but that is not likely to be successful because generally speaking, it could only be done if proof is given of fraud or mistake. 
21.That is the position under the old rules. The rules have, however, changed. Under Order 52 Rule 11 paragraph 3(b) provides that:
`The Appeal Court will allow an appeal where the decision of the lower court was-
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.'
22.It seems to me that if it were made out to this Court's satisfaction that Mr Waters had indeed protested in open court that the matter was being dealt with without his consent but his protest was overlooked (and it is difficult to see how it could have been overlooked by everybody) then it may well be that the Court, under the new rules, would take the view that this Court should intervene rather than leave Mr Waters to such remedy as he might have by application to the judge or in fresh proceedings.
23.I express no view as to whether that is the case or not, nor do I express any view as to whether Mr Waters is going to make out sufficient facts to establish such a case in any event. What I do think is that he should be given the opportunity of obtaining the tape, listening to it and seeing whether there is in fact any particular defect in it, and that this matter should be adjourned to be heard on notice to the other side listed with the appeal to follow if permission is granted. It would be necessary for Mr Waters, having obtained the tape and listened to it for himself, also to offer it to the other side for them to listen to it to see if it makes good the claim that he makes to have intervened before Jacob J to suggest that the matter was being dealt with otherwise than with his consent, notwithstanding that counsel said that it was with his consent. I do not suggest that those are necessarily the only points available to Mr Waters, but that is the reason why I would suggest that the appropriate order is that this matter should be adjourned to come on an inter-parties basis with the appeal to follow if leave is granted, on terms that Mr Waters obtains the tape and offers it to the other side for them to listen to as well.”
24.	Charles J agreed with that judgment.
25.	There are some significant points in that judgment. First, that Mr Waters was saying that the transcript did not record his protest to the judge; second, that the usual course would have to be a separate action to challenge the order on the grounds of fraud or mistake. There was a possibility under the new rules that the Appeal Court could intervene and that the court (Morritt LJ and Charles J) did not feel it was right to grant permission to Mr Waters on that occasion until the tape had been obtained and Mr Waters had listened to the tape and had had an opportunity to make good his submission that he had intervened but that his intervention had been overlooked by the judge. Morritt LJ was referring to the transcript of the proceedings before the judge, not to anything that had happened before or after the judge sat, because he is referring to interventions before the judge, that is in the judge's presence. It was on that basis, therefore, that the application for permission was adjourned. The Court of Appeal's order makes it quite clear that the permission application had not been resolved. The order provides that:
“1.this application be adjourned to be relisted for a hearing on notice, and if permission is granted then with appeal to follow; 
2.the Defendant to obtain the tape of the lower court and to give the Claimant an opportunity to listen to the tape before the adjourned application is relisted with any application seeking to rely on further evidence.” 
26.	The matter has come before this court today, differently constituted. It was fixed in May 2001. On this occasion Mrs Joseph appears and has been given permission to address the court as Mr Waters' Mackenzie friend. Her first application is that this case should be adjourned. She relies on the fact that Mr Waters is currently abroad. The position is that Mr Waters wrote to the court on 27th April 2001. He said in his letter that July was his busiest time of year for his work and he would like an earlier hearing date. He did not in that letter say that July was a date which was impossible for him, and indeed there is no evidence to show that he could not have been here. There is no letter from him, thus the court has no evidence that he is simply unable to be here. 
27.	As I say, the case was fixed in May, so there was every opportunity for Mr Waters to contact the court at an earlier point in May, or even early June, to say that he could not be present in July. 
28.	What happened, however, was that he consulted solicitors last Friday, and yesterday his new solicitors wrote to the court saying that they had not been able to take proper instructions and would like the hearing adjourned for one month. One month would take the case into the long vacation, and therefore past the court's sitting term. The letter states that:
“In addition to our own difficulties Mr Waters is presently working abroad and unable to attend the hearing in any event. If the hearing is to go ahead he will have to be represented by his Mackenzie friend, Mrs Joseph.”
29.	That letter came, as I say, much too late. It was not possible for the court simply to accept that application by letter. It would have required to know what Mrs Melhuish's position was. The solicitors said that they were sending a copy of the letter by post to the respondent. That would hardly have assisted, because she lives in Bournemouth and she may well not have received the letter before she left to come to court this morning. However Mrs Melhuish contacted the court herself yesterday. When asked about Mr Waters' request for an adjournment she made it clear that she would oppose. Mrs Melhuish has indeed come here this morning and has listened during Mrs Joseph's submissions. 
30.	In my judgment the application for an adjournment has to be refused. It was made too late. Mr Waters had every opportunity to make his application for an adjournment earlier. So the court has proceeded to hear his permission application and Mrs Joseph has made the points which have already been made in the letter that was not sent to the judge to which I have already referred. There is no application to adduce new evidence. Mrs Joseph tells us that she has indeed heard the tape, but she does not seek to put in evidence on Mr Waters' behalf showing that Mr Waters intervened before the judge. Indeed she was bound to accept that there is nothing on the tape which would assist Mr Waters' case on that basis. 
31.	It is clear to me that the only basis on which the court thought there might be a prospect of success on an appeal was that something had occurred in the court proceedings before Jacob J which would make it unjust for the order to be upheld. In that way it might be possible for the court to invoke the new rules (CPR 52. 11 3(b)) and set aside the order of Jacob J. I will work on the basis that that rule does apply to this case and that it is wide enough. I think it is also arguable that it is not wide enough on its terms and also that it is not applicable to the order of Jacob J, since the order was made and the application to appeal was made before the new rule came into force. But be that as it may, I will proceed on the basis that it does apply (and that is a favourable assumption to Mr Waters), but the position that Mr Waters faces is that he cannot substantiate his allegation that he intervened before Jacob J. In those circumstances the position must be that there is no material on which the court could conclude on an appeal that it would be unjust by reason of procedural irregularity, or indeed any other matter, for the consent order not to take effect and that therefore there would be no real prospect of success if we were to give permission today. 
32.	I have considered whether, in the light of the submissions Mrs Joseph has made, there could possibly be any other basis on which the court could reach that conclusion. As I see it, nothing has been said in the submissions or in the documents which would enable the court to reach the conclusion that there was any prospect of success in persuading the appeal court that it was unjust that the previous order should stand. It would have to be a matter which took place in the course of the court proceedings, because the consent order has now been sealed and it has all the force of a contract between the parties, unless there is some ground on which, in a separate action, it could be set aside as a contract between the parties. 
33.	Accordingly, having heard Mrs Joseph's submissions and taken into account all the things that Mr Waters has said in his letter and in other documents, including his skeleton argument, I consider this is not a case which would stand a real prospect of success on appeal. That is not to say that there might be other avenues, but so far as the one he has selected is concerned, in my judgment there is no real prospect of success and therefore permission should not be given. 
34.	LORD JUSTICE KAY: For the reasons given by Arden LJ, I too would refuse both the application for an adjournment and the application for permission to appeal. 
35.	LORD JUSTICE PETER GIBSON: I also agree. 
Order: Application dismissed with costs assessed at £39.10.
(Order does not form part of approved judgment)