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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 >> Barclays Bank Plc v Rowley & Anor [2001] EWCA Civ 2040 (19 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2040.html Cite as: [2001] EWCA Civ 2040

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE MACDUFF QC)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 19 December 2001

1. LORD JUSTICE CHADWICK: This is renewed application for permission to appeal from an order made on 5 April 2001 by His Honour Judge MacDuff QC sitting in the Birmingham County Court. The order was made in proceedings brought by Barclays Bank Plc, as mortgagee of properties at 24 Eggington Road, Wollaston, Stourbridge and 20 Sidaway Street, Worley, against the mortgagors, Mr Keith Rowley and his wife, Mrs Susan Rowley.
2. The proceedings, which had been commenced as long ago as 17 July 1998, were to be tried on 5/6 April 2001. There is no doubt that Mr and Mrs Rowley knew that. The judge took the view, for reasons set out in a full judgment delivered on 5 April 2001, that they had chosen not to attend on that day in pursuance of what he regarded as an improper objective of avoiding a trial of these proceedings. His view appears from the following passages of his judgment. First, at page 2 of the transcript, he observed that:

"The action has a long and troubled history, substantially caused by what appears to me to be 'spoiling tactics' by Mr and Mrs Rowley, who have done everything in their power to frustrate the court in getting this case on for trial, have made applications and appeals by the many and have proved very adept at avoiding having this action tried."

3. He returned to that point at page 4D-E of the judgment when he said:

"Anyone reading the court file, as I have done, would have no difficulty in reaching the conclusion that virtually every step taken by the defendants appears to have been taken with one objective in mind -- to disrupt and frustrate progress of this action and to ensure that the case will never be tried."

4. Those remarks were not made lightly by the judge. He proceeded to analyse what he described as sixteen attempts at delay and obfuscation of these proceedings. At page 16A-B he concluded:

"The defendants have adopted these delaying tactics of applying, and reapplying and appealing every order for the sake of appealing it, and usually appealing it just before a new hearing is due to be heard, with the result that this case never gets to trial."

5. It was in those circumstances that the judge decided to proceed with the hearing on 5 April 2001 in the absence of the defendants. He gave his reasons in a passage at page 19G:

"As may be apparent from what I have already said, I took the decision, in view of the history, to hear this case in the absence of the defendants. That, of course, is not a decision which should be taken lightly. But it seems to me I have a discretion to make such a decision. Counsel for the claimants urged me to hear the case. Not surprisingly, the claimants are anxious that this case should now be heard. These never-ending spoiling tactics are causing the claimants [the bank] considerable expense and inconvenience. The claimants are obliged to attend hearing after hearing only to find that the process has been sabotaged by the defendants. They ask that the case be heard.

In reaching the decision which I have reached, I had regard to the overriding objective. I have to deal with this case justly. Is it just for the case to be heard in the absence of defendants? It is always highly undesirable that a case should be heard in this way and that a party be deprived of the opportunity to present his or her case, and I have that firmly in mind. But dealing with a case justly involves more than merely ensuring that the case is fully argued. These defendants have had every opportunity to attend and participate. They have chosen not to do so. Indeed, they have deliberately refused to attend. I must ensure that the case is dealt with justly from the claimant's perception also. There is a duty on the court to deal with the case proportionately. There is a duty to avoid expense. The case must be dealt with expeditiously and fairly.

Is it unfair to go ahead without the defendants? In my judgment, it is not unfair, given that they are not here through choice. On the other hand, it would be unfair to the claimants if I were to adjourn this case yet again, in the certain knowledge that the defendants would adopt the same tactics to delay and obfuscate. The claimants defendants attend this trial with counsel and solicitors. They have a prepared for a two-day trial. Their witnesses have been brought to Birmingham. The court has been made available for this trial, with a two day listing. I must take into account that this case should be allotted an appropriate share of the court's resources, while taking into account the need to allot resources to other cases. If I vacate today's trial is it is likely to be several months before it can be relisted. That is not fair to the claimants. Nor is it an appropriate use of court resources. I have considered carefully the overriding objective, and all its constituent parts, set out in CPR 1.1. I have noted that CPR 1.3 enjoins the parties to help the court to further the overriding objective. That is something which the claimants have done, and which the defendants have avoided. In the exercise of my discretion, I made the decision to go ahead today."

6. In deciding to proceed on 5 April 2001, the judge clearly took into account the factors to which he referred. As he indicated, he did so after reading the whole of the court file. After consideration of that file, he found that these defendants were making applications and lodging appeals which were so obviously bound to fail that the only conclusion to which he could come was that they were made for the purpose of delay.
7. Having decided to proceed, the judge heard evidence from witnesses called by the bank. He found the bank's case proved on the evidence which the bank had adduced. He did not ignore the pleaded defence. He said, at page 21F:

"I have been assisted by a very helpful skeleton argument filed on behalf of the claimant, in which the allegations which are contained within the defence and counterclaim are all dealt with and the relevant evidence pointed to, and, of course, the defendants are not here to pursue their defence, or to pursue their counterclaim, but the evidence within the bundles, and as deposed to by Messrs Cookson, Round and Pritchard [the witnesses called by the bank] deals with those allegations in any event, and in the absence of the defendants being here to prosecute their allegations, for example, to establish what undue influence they say there was, and what duress they say there was, then the defence fails and the counterclaim fails."

8. It is plain from that passage that the judge had regard to the pleaded allegations in the defence which had been filed in March 2000. Those allegations may be summarised as follows: first, that the original lending agreement was subject to the Consumer Credit Act 1974, with the consequence that security provided in connection with it could not be treated as security for borrowing outside that agreement without the specific consent of the mortgagors; and, secondly, that the consent which the bank thought it had obtained for that purpose was the consent which was vitiated by undue influence or duress going beyond legitimate commercial pressure.
9. The judge gave judgment for the bank for £73,183. He ordered that the bank should have possession of the two properties within 28 days and dismissed the defendants' counterclaim.
10. The power of the court to proceed in the absence of the defendants is not in doubt. It is conferred by CPR 39.3. That rule provides, by subrule (3), that:

"(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment to be set aside.

(4) An application under paragraph (2) or (3) must be supported by evidence.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant-

(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success."

11. The defendants sought to make an application to the Birmingham County Court under CPR 3.3(3). They acted promptly. On 12 April 2001, which was within a week of the judgment, they filed an application notice dated 11 April 2001. It is clear from reading the application notice that the grounds on which they sought to have the order of the 5 April set aside were procedural; that is that it was procedurally impossible for the trial to take place on 5 April 2001.
12. Two reasons were advanced in support of that application. The first was that at the relevant date, 5 April 2001, the defendants were still seeking to appeal or set aside an earlier order in the proceedings (made by HH Judge Kirkham); that the hearing of that application had been fixed for 6 April 2001; that the trial could not proceed until that application had been heard; that there was a stay of proceedings ordered by HH Playford in order to prevent that happening; and that the application not having been heard, no trial was possible.
13. The second reason was that, although they knew of the hearing fixed for 5 April 2001 (because the date had been fixed in their presence), they had not been given the requisite period of formal notice. The letter notifying them of the trial date, to which a court seal had been affixed, had only reached them a few days earlier.
14. HH Judge MacDuff had taken the view that, although there was an outstanding application or appeal against Judge Kirkham's order, the proper and convenient way to deal with that application was to bring forward the date on which it was listed from 6 April to 5 April; and to deal with the application on 5 April in advance of the trial. He explained that that proposal had been made to the defendants but they had rejected it.
15. No doubt it was that which led him to take the view that there was a deliberate failure to cooperate with the court in the conduct of this litigation. He also took the view, which he expressed at page 19 of the judgment, that the application to set aside Judge Kirkham's order, which was the only application outstanding, had had no prospect of success.
16. The application notice of 11 April 2001 does not advance any reason for the failure to attend on 5 April 2001, other than the contention that the defendants were not bound to attend because the proceedings were inherently irregular. It does not address the question whether their defence would have had a reasonable prospect of success on the merits at a trial.
17. When the Birmingham County Court received the application notice dated 13 April 2001, it must have taken the view that the true nature of the application made by that notice was that it was an appeal against the judge's decision to proceed with the trial in the absence of the defendants; and that, as such, it was more appropriately made to the Court of Appeal under CPR 52 rather than to the county court under CPR 39. Some confirmation of that thinking appears from a note made on a compliments slip accompanying the files sent by the Birmingham County Court to the Dudley Court on 26 April 2001; which records that the application had been referred to His Honour Judge MacDuff and that it was he who had directed that all applications must now be made to the Court of Appeal.
18. On 25 April 2001, the Birmingham County Court returned to the defendants their application filed on 12 April 2001. They were informed:

"All further applications must be made to the Court of Appeal, Royal Courts of Justice, Strand, London. Your files have been returned to the county court."

19. The defendants did not take the course indicated by that letter. They did not apply to the Court of Appeal. Although, strictly, they would have been out of time to file an Appellant's Notice by the time that they received that letter of 25 April 2001 - because the 14 day period from 5 April 2001, prescribed by CPR 52.4, would have elapsed - I have little doubt that, had they acted promptly on receipt of the letter, an extension of time would have been granted. I express no view whether permission to appeal would have been granted.
20. As the letter of 25 April 2001 had indicated, the files were returned by the Birmingham County Court to the Dudley County Court. The defendants decided to make an application to the Dudley County Court under CPR 39.3. Mr and Mrs Rowley have told me that that application was filed on or about 2 May 2001. If that were so, then the application was made promptly following the return of the papers from Birmingham.
21. There is no copy of that application in the papers before this court. Nothing seems to have happened in relation to that application until July 2001. Mr and Mrs Rowley have told me that the reason for that was that the Dudley County Court had lost the documents. Whether the county court lost the files or lost the application, or both, is not clear. Nevertheless, by July 2001, the Rowleys had become sufficiently concerned to relodge the application with the Dudley County Court. That application was supported by witness statements signed by each of them on 26 July 2001.
22. The application under CPR 39.3 was eventually heard and decided by His Honour Judge McKenna on 17 October 2001. There is no copy in the papers of a judgment or order made by Judge McKenna on 17 October 2001. But it is not in dispute that he dismissed the application under CPR 39.3. Mr and Mrs Rowley tell me that they applied promptly (before the end of October 2001) to this Court by way of appeal against the decision of His Honour Judge McKenna. They tell me that that application was returned to them by the Court of Appeal with the indication that it should properly be made to the High Court in Birmingham. There are no papers before me which indicate when that happened; nor whether an appeal, or an application for permission to appeal, against Judge McKenna's order has been considered or determined by the High Court. That is not an application which is before me. I say no more about it.
23. The application before me is for permission to appeal against the order made by Judge MacDuff on 5 April 2001. The application bears no date but it is reasonably clear that it was filed during the first week of November 2001. In those circumstances it was filed some 6 months or more after the time for filing an Appellant's Notice against the order of 5 April 2001 had expired. The question therefore is whether, in the circumstances that I have set out, time for appealing from the order of 5 April 2001 should now be extended and permission granted.
24. The time for the filing of an appellant's notice described by 52.4(2)(b) is 14 days. That is a short time. It is short for reasons of policy; as explained in the notes at 52.4.1 in the Autumn 2001 edition of Civil Procedure. The object of the short time period is to achieve finality in litigation. A party who has been successful in proceedings in the lower court is entitled to know, within a short time, whether the order that he has obtained is to be challenged in the Court of Appeal. It is necessary therefore to show some good reason for extending the period; particularly in circumstances where the extension is not that of a few days or weeks, but of some six months.
25. Mr and Mrs Rowley say, with some force, that they had always intended to challenge Judge Macduff's order. But, they say that they find themselves in their present position because they were confused as to the appropriate course to take. The difficulty with that submission is that they were told on 25 April 2001 by the Birmingham Civil Justice Centre that, if they wish to challenge Judge Macduff's order, the appropriate course was to make an application to the Court of Appeal. They chose not to do that. They chose instead to make the application in the Dudley County Court. There may have been good reasons for taking that decision; notwithstanding the letter from the Birmingham court. But no explanation of those reasons has been offered. Mr and Mrs Rowley say only that they thought that that was the right course to take. The effect is that there is no other explanation for the considerable delay that has elapsed.
26. I am content to accept that not all that delay can be laid at the door of the Rowleys; in particular, if it be the case, in the circumstances that the Dudley County Court mislaid their first application. That would not be a delay for which the Rowleys were responsible. But there was delay inherent in the course which they adopted, namely, the delay inherent in having an application heard under CPR 39.3. Had they wished to preserve their right to file an appellant's notice, the obvious course to have taken would have been to seek an extension of time under CPR 52.4, while their application in the county court under CPR 39.3 proceeded. On an application to extend time the court to which that application was made - whether it were the Birmingham County Court or the Dudley County Court or this Court - could have considered whether it was sensible to have in prospect both an application under CPR 39.3 and a potential appeal against the original order. It must be kept in mind that the only real basis for an appeal against the judge's original order was that he had decided to proceed in the absence of the defendants.
27. The conclusion to which I am driven is that Mr and Mrs Rowley took a deliberate decision to attempt to set aside the judgment under CPR 39.3 - rather than to take the course indicated by the letter of 25 April 2001 - with a view to obtaining the previous benefits of the delay which would ensue from that course; and in the hope that, if they failed, they could still make an application for permission to appeal to this court. I take that view because I, like Judge MacDuff, have read the extensive files in this case. Mr and Mrs Rowley present themselves in this Court as litigants in person who are wholly confused. That picture is not borne out by the voluminous papers that were before Judge Macduff and are now before me. I take the view that these are litigants who knew perfectly well what they are doing and who will seek to take advantage of every opportunity for delay.
28. Mrs Rowley has put before me an affidavit, made on 12 December 2001, in which she draws attention to an internal memorandum from the Lord Chancellor's Department to the Birmingham County Court dated 8 February 2001 which makes reference to "a Gordian knot". She has not put before me - no doubt because she has not been able to obtain a copy of it - the memorandum itself. It is plain from her affidavit that considerable confusion existed in the Birmingham County Court during February and March 2001 in the period leading up to the trial fixed for 5 April. I am not surprised that there was some confusion, having regard to the number of applications and appeals that were filed by the Rowleys during that period. But the opportunity to resolve the position was on 5 April 2001, before Judge MacDuff. All matters could then have been brought before him; and the objections now made could have been raised on that occasion. The Rowleys chose not to adopt that course, for reasons which the judge regarded as tactical. The consequence of that decision is that the judge made the order which he did.
29. In all the circumstances of this case, therefore, I am not persuaded that it would be appropriate to extend time for the filing of the appellant's notice. The question whether Judge MacDuff was right, on 5 April 2001, to proceed in the absence of the defendants, has been before Judge McKenna; and his decision is (I am told) already the subject of an application for permission to appeal to the High Court. There is no need for an appeal to this Court against the decision of 5 April 2001. It follows that the application for extension of time is refused and the application for permission to appeal must fall with it.
30. I make it clear, as I have indicated in the course of this judgment, that I am not seised of any application in relation to the order made by Judge McKenna in October 2001. The order that I make today will not affect Mr and Mrs Rowley's ability to pursue that application, if they wish to do so, in the proper forum.
Order: Applications dismissed.