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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 >> Matin v Choudhury & Ors [2001] EWCA Civ 37 (15 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/37.html Cite as: [2001] EWCA Civ 37

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AN EXTENSION OF TIME AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Monday, 15th January 2001

1. LORD JUSTICE MAY: This is the hearing of a renewed application on behalf of Mr Abdul Matin for permission to appeal against an order made by Mr Michael Kallipetis QC, sitting as a Deputy Judge of the Queen's Bench Division, on 15th May 2000 when he dismissed Mr Matin's appeal against an order of Master Eyre made on 4th April 2000, that order being that Mr Matin's claim should be struck out for failure to comply with a previous unless order which Master Eyre had made.
2. Mr Matin has unfortunately not appeared to support his application today. In his place Mr Sidoli has appeared and describes himself as Mr Matin's McKenzie friend. What Mr Sidoli tells me is that he was expecting to meet Mr Matin at about 1 o'clock in the cafe to discuss the application with him and to be here to help him, not, as Mr Sidoli understood it, by making submissions on his behalf but by taking notes and generally being here to support his application. But Mr Sidoli tells me that he had a telephone call from Mr Matin at about the time he was expecting to meet him here to say that Mr Matin had had an accident, had injured his shoulder and was at the Whittington Hospital. He asked Mr Sidoli to ask on his behalf for the application to be adjourned. What Mr Sidoli did not know was that this was not the first time that Mr Matin had asked for his application to be adjourned on account of injury to his shoulder. The matter was originally listed for hearing on 23rd November 1999. Two days before that hearing Mr Matin wrote to the court asking for the hearing to be vacated because he had suffered a shoulder injury and was, as he said, in constant pain and discomfort and would not be recovering for the next few weeks. He apologised to the court and submitted what he referred to as a medical certificate. That medical certificate was dated 22nd November 2000 and was that of Dr Wardell who said that Mr Matin had sustained injury to his right shoulder in 1996 which was causing him pain on a daily basis. The doctor said that the pain affected his quality of life and was not helped by physiotherapy, prevented him from sleeping and it affects his mental concentration significantly. This application was put before me in November and with some hesitation I decided to accede to that application then but to make it clear, through the office, that the application would have to take place at some stage and could not be put off indefinitely because, unfortunately, Mr Matin was suffering from continuing shoulder problems.
3. I have to say that it is superficially surprising that on the very day of his renewed hearing, after the previous adjournment, Mr Matin has suffered apparently another injury to his shoulder on the very day on which his hearing was due to take place and when Mr Sidoli, on his behalf, was already at court to help him.
4. Taking the facts which I have been given at face value, it does seem to me that this is a matter which simply cannot drag on indefinitely. This is the second occasion on which Mr Matin has had his application listed in court. Taking that into consideration and also my view as to the merits of the application which I shall shortly express, I have decided not to accede to the application for an adjournment. Unfortunate though it is that Mr Matin has shoulder problems, nevertheless it is quite clear to me that this is an application which has no merit. I have reached the conclusion which I have just expressed having asked Mr Sidoli whether he was aware of any additional information that Mr Matin was planning to put before the court today. Mr Sidoli was unaware of any such additional information though he is aware of the general nature of the history of these proceedings.
5. This was an application which I turned down on paper on 31st July, Mr Kallipetis having refused Mr Matin permission to appeal. Parenthetically, it was not open to Mr Kallipetis to grant it because this would be a second appeal within the terms of Section 55 of the Access to Justice Act 1999 and Civil Procedure Rule 52.13. The effect of that section and that rule is that only the Court of Appeal has power to give permission to appeal where it would be a second appeal, and permission will only be given if the case raises an important point of principle or practice or if the court considers that there is other reason why permission should be given. What I wrote on 31st July was that my view was this application raised no important point of principle or practice and, accordingly, permission would be refused in terms of Section 55 and CPR Rule 52.13.
6. The background to this is that Mr Matin brought libel proceedings against a number of defendants - six or seven in all. Those libel proceedings were said to arise from the terms of a letter dated 30th November 1998, written by the then chairman of the North London Sylhety Community and Welfare Association of which Mr Matin (the applicant) was the secretary and the respondent defendants were other committee members or otherwise concerned with that organisation. There had been disputes between Mr Matin and the defendants and each had accused one another of misusing funds and property of the association and had made various other allegations of wrongdoing. It was in the course of disputes of that kind that Mr Matin said - but I believe the defendants denied - that the letter of 30th November 1998 was written.
7. The proceedings were started on 12th January 1999 and there were interlocutory proceedings during 1999 in the course of which summary judgment was entered against the first defendant and default judgment was entered against all other defendants in February 1999. In March 1999 the defendants applied to set aside these judgments and were successful. They, for their part, applied to strike out the statement of claim. The matter came before Master Eyre on two occasions in the summer of 1999. The first of those occasions was 17th June 1999 when the master ordered that the action be stayed pending further order since the claimant had failed to demonstrate to the satisfaction of the court that the action ought to be permitted to proceed. The master also ordered the defendants be permitted after 30th June to apply on notice to strike out the claim as disclosing no reasonable grounds for bringing it, the purpose of the postponement being to give the claimant an opportunity in the meantime to demonstrate to the court that the action ought to be permitted to continue. The master made an order that the claimant pay the defendant's costs of that occasion which he assessed summarily at £30 in relation to the first defendant and £10 in relation to seven of the defendants.
8. Mr Matin then proceeded to make amendments to his statement of claim and the matter returned to Master Eyre on 16th July 1999 when he permitted certain amendments and, for present purposes, made three orders. The first order was that the claimant should serve the amended particulars on the defendants no later than 23rd July 1999. The second of these orders was that he should apply to fix a case management conference, having first confirmed a date convenient to both sides. The third was that he should pay the defendants' costs which were again assessed summarily at £50 for the first defendant and £10 for the seventh defendant. The claimant's position is - and I proceed on the basis as did Mr Kallipetis - that he did succeed in serving the amended particulars of claim on the defendants but he failed to comply with the other two orders to which I have referred.
9. In those circumstances it was on 15th September 1999 that, having heard Mr Matin in person, the master ordered that unless he obey the above order by no later than 4 pm on 22nd September the writ and the statement of claim should be struck out and the action dismissed. Mr Matin did not comply with the condition of that order, that is to say he did not apply to fix a case management conference and he did not pay the costs he was ordered to pay to the defendants. Accordingly, some time having passed, it was on 4th April 2000 that the master struck out his claim for non-compliance with those two parts of the unless order.
10. It was against that decision that he appealed, and Mr Kallipetis QC heard his appeal on 15th May 2000. Mr Kallipetis upheld the master's decision. He regarded the non-compliance with the costs order as particularly serious because the defendants were acting in person and he held that Mr Matin produced no evidence that he was unable or unwilling to pay the relatively small amounts he had been ordered to pay.
11. The grounds of appeal to this court upon which Mr Matin seeks permission are, first, that the judge erred in law and made a wholly wrong decision in deciding that Master Eyre's order was wrong in law and unjust because of serious procedural and other irregularities in the court below. The notice of appeal says that the judge applied the wrong test and in substance, as I read it, says that the judge failed to take account of Mr Matin's ability or inability to pay the amount of costs. The third ground of appeal is that the judge was wrong in law in making the order that he did in circumstances where the defendants failed to attend the court on 15th May 2000. The fourth ground of appeal is that Master Eyre was not impartial and exhibited bias in this matter since 12th May 1999.
12. In my judgment, there is no proper basis for giving permission to appeal in this case. First and foremost, this would be a second appeal. It raises no important point of principle or practice and it does not come within the provisions of Section 55 of the Access to Justice Act 1999 nor CPR 52.13. It seems to me that neither the master nor the deputy judge made any error of law. These were entirely discretionary decisions which were open to them on the evidence and material before them. Mr Matin had indeed failed to comply with the unless order of 15th September 1999 and in those circumstances it was open to each of these judges to make the decisions which they did. It seems to me that the deputy judge did not apply a wrong test. The defendants were not obliged to attend on 15th May and that provides no grounds for appeal at all. It seems that there is no material for reaching any conclusion that Master Eyre was not impartial. Accordingly, it seems that this is an application which has no prospect of success whatever and in those circumstances I refuse the application.
Order: Application refused