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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nybakken-Stern v Cooch & Anor [2001] EWCA Civ 1355 (31 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1355.html Cite as: [2001] EWCA Civ 1355

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HHJ DEDMAN)

		Royal Courts of Justice Strand, London WC2 Tuesday, 31st July 2001

Tuesday, 31st July 2001

1. LORD JUSTICE ROBERT WALKER: This is an application for permission to appeal and an extension of time for appealing by Mr Danny Cooch, who has appeared in person. Mr Cooch wishes to appeal from an order of HHJ Dedman made on 3rd August 2000 in the Southend County Court dismissing Mr Cooch's appeal from an order of District Judge Dudley made in the same court on 8th March 2000. That order had assessed the costs of an action in which Ms Inger Nybakken-Stern ("Ms Stern") was the claimant and Mr Cooch and his partner, Miss Maureen Naughton, were the defendants.
2. The judgment in the action which gave rise to the liability for costs was given by HHJ Bradbury in the Southend County Court on 14th October 1997 after a trial which had taken place in the absence of Mr Cooch and his partner. On 8th March 2000 Mr Cooch had arrived late by some 15 or 20 minutes for the hearing before the District Judge and found that the order had already been made. On 12th May the District Judge declined to reopen the matter.
3. There is a very long and very unhappy story of disputes between neighbours underlying this application. Ms Stern owns but has not always lived at 53 North View Drive, Westcliff on Sea, Essex. Mr Cooch owns and lives at number 51 and he has explained to me that, because of a negative equity situation, he has been able to retain that ownership, such as it is, despite his bankruptcy, which I shall mention in a moment.
4. The action started as long ago as 1994. Its origins seem to have been in complaints about the noise of building work at number 53 and Ms Stern's claim to have a right of way down the side of number 51. Unfortunately, the parties' grievances intensified and ramified into complaints of verbal abuse, malicious damage to property, physical assaults and the installation by Ms Stern of a closed circuit television camera directed at the door of number 51.
5. Ms Stern made applications for interim injunctive relief which were successful and resulted in some orders for costs in any event. In particular, on 16th August 1995 she obtained a certificate for assessed costs under three orders dated 6th July 1994, 11th April 1995 and 9th May 1995. The total assessed was £3,876. In August 1996 there were proceedings against Mr Cooch in the Southend Magistrates' Court. In May 1999 Mr Cooch was committed to Chelmsford Prison for contempt of court.
6. By then, as I have said, there had been a civil trial in the county court conducted in Mr Cooch's absence. He has said in his skeleton argument that he was not aware of this until May 1999, when he was committed to prison. The fact that he was committed to prison suggests that the county court judge cannot have accepted that explanation. That is not a matter that I can take further today. There is no trace in the papers of Mr Cooch having attempted either to have the order of 14th October 1997 set aside or his having appealed against it.
7. There are two other aspects of the matter which I should mention. First, Mr Cooch was adjudicated bankrupt on 22nd September 1997, that is about three weeks before the final order. Since the claim against him included injunctive relief, it appears that his bankruptcy did not automatically put an end to the possibility of his defending the action, although Mr Cooch seems to have received different advice on that topic (see the observations of Hoffmann LJ in Heath v Tang 1993 1 WLR 1421 at 1424). However, Mr Cooch's liability for the costs already certified at £3,876 must have ceased to be a personal liability of his and was not available for set-off against a liability of Ms Stern to Mr Cooch, which arose only after the bankruptcy. Southend County Court seems to have been informed of the bankruptcy but only during the year 2000.
8. That brings me to the other aspect of the matter. It appears that on 23rd October 2000 Mr Cooch obtained an award of damages payable by Ms Stern in an action in the Central London County Court in which Mr Cooch was claiming damages for wrongful arrest, wrongful imprisonment and malicious prosecution. The Chief Constable of Essex and Mr Batter, a friend or acquaintance of Ms Stern, were also defendants in those proceedings. The damages amounted to £2,628 and Mr Cooch was also awarded two-thirds of the costs, although since he was appearing as a litigant in person that is unlikely to amount to a very substantial sum.
9. It appears that Mr Cooch's success in the Central London County Court is now known to the judges of the Southend County Court and Mr Cooch has told me that matters there have, in effect, been put in abeyance pending this application to the Court of Appeal.
10. Going back to the order against which Mr Cooch seeks to appeal, I note that the judge recognised that Mr Cooch's grounds of appeal against the assessment of costs were really directed to whether he should have lost the action in the first place rather than being directed, as objections to costs should be, to particular items which had been incurred. Mr Cooch was, HHJ Dedman said, trying to reopen the whole proceedings and that was not the object of the exercise.
11. A further appeal to the Court of Appeal is permitted only in exceptional circumstances. By section 55 of the Access to Justice Act 1999 such an appeal is permitted only if it would raise an important point of principle or practice or for some other compelling reason. I must ask myself therefore whether the further appeal could possibly meet that test. But for Mr Cooch's success in the Central London County Court there could only be one answer to that question, that the test was not met. However, the fact of Mr Cooch's success in the Central London County Court, and its possible implications as regards the action which proceeded in the Southend County Court between 1994 and 1997, seem to me to raise an important issue as to whether it is possible that an injustice has occurred in this case.
12. I wish to state again, as I said in the course of argument, that I may be doing Mr Cooch no favour in the course which I propose to take. He should carefully consider whether he wishes to put himself at risk to further costs in continuing with an application which faces many severe difficulties. He should, if possible, obtain legal advice either through the Legal Services Commission or from the Citizens Advice Bureau if he cannot obtain assistance through the Legal Services Commission.
13. Subject to those warnings, the course I propose to take is to adjourn both applications to be heard on notice before a court consisting of two Lord Justices with the appeal to follow immediately if permission is granted. If Mr Cooch decides or is advised to seek to bring before the court some other application for permission to appeal from some other order he should do so at once, bearing in mind the warnings that I have already given him as to the difficulty of the task that lies ahead.
Order: Applications adjourned to be heard on notice before a court consisting of two Lord Justices. Appeal to follow immediately if permission is granted.