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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 >> NMB Ltd (t/a Hellier Commercial Finance Ltd) v Merrick-Hide [2001] EWCA Civ 572 (5 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/572.html Cite as: [2001] EWCA Civ 572

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

		Royal Courts of Justice Strand London WC2A 2LL Thursday 5 April 2001

1. LORD JUSTICE LATHAM: In this application Mr Keith Merrick-Hide appears on behalf of himself and his wife to apply for permission to appeal against a decision of Judge Hegarty on 29 September 2000, in which he gave summary judgment for the claimants in this action in the sum of £35,000 plus costs.
2. The claim arose out of a factoring agreement between Mr Merrick-Hide and his wife, and the claimants in relation to a company known as Home Farm Produce Centre Limited. The claim against Mr Merrick-Hide and his wife was that they had personally signed an indemnity in relation to the factoring contract. Relations between Mr and Mrs Merrick-Hide and the claimants clearly broke down relatively shortly after the factoring agreement had been made. Mr Merrick-Hide has told me that he was thoroughly dissatisfied with the way in which the claimants had carried out their obligations under the agreement. From what he has said to me, it seems clear that it may well be that he felt that they had taken on more than they were capable of taking on in terms of the number of invoices generated by his particular company. It is unnecessary to go into the details of the breakdown of the relationship between the parties for the purposes of this judgment.
3. Within a relatively short time of the agreement, which was made in June 1993 (that is by November 1993) there were difficulties which resulted in the claimants putting in an administrator in order to recoup the monies which they felt were owing. The position thereafter was that the accountants, who became the administrators of the company, having done their best to sort out the financial affairs of the company, produced what the claimants considered to be less than they were due by reason of what were said to be breaches by the company of its obligations under the factoring agreement. Those included, it was alleged, failures by the company to make sure that the invoices which were submitted properly covered existing debts to the company. Secondly, there were a significant number of occasions on which the company retained for itself monies which should have been paid over to the claimants under the factoring agreement. Mr Merrick-Hide says that, as far as the latter is concerned, that was because he was not receiving for the company what he believed the claimants owed and it was necessary to divert those cheques in order for the company to survive. In the result, the claimants considered that they were owed £98,427.34 by the company. That was a sum which Mr and Mrs Merrick-Hide themselves owed under the indemnity they had provided.
4. Mr and Mrs Merrick-Hide defended the claim on the basis that the claimants had not carried out their obligations properly in accordance with the contract and, in particular, had been incompetent in the way in which they had dealt with their side of the factoring agreement. The result of their defence was that His Honour Judge Hegarty was asked to determine four discrete issues at a preliminary hearing which both sides accepted would resolve the issue of liability as between the claimants and Mr and Mrs Merrick-Hide.
5. The hearing took place in September 1998. The issues were all resolved in the claimants' favour and the matter of quantum was adjourned to be dealt with at a later date. To deal with the course of the action thereafter, before returning to Mr Merrick-Hide's concerns, the proceedings to determine quantum did not come back before the court until September 2000. In order to manage properly the hearing in relation to damages, the learned judge made a number of orders which were intended to ensure that both the claimants' claim and the defendants' defence to that claim were in proper form, namely, that the claimants were to file any evidence in support by 7 July 2000 and the defendants were ordered to serve any evidence in opposition verified by a statement of truth on 4 August 2000.
6. The claimants filed their evidence in support. Although there was a dispute as to whether or not the claimants had met the time limit, the judge determined that they had (and it seems to me that on the material before me he was entitled to find that they had) complied with his order in that regard. The defendants did not serve any evidence verified by a statement of truth. They served some documents but those documents were not verified by a statement of truth. Unfortunately, as a result, it was not clear at the time the matter came back before His Honour Judge Hegarty, precisely what issues were going to be raised on behalf of the defendants, apart from the general issue which was that the claimants' claim was a wholly unreliable claim, they having been unreliable in their submission of documentation to the company during the period that they were factoring, and that there were clear discrepancies still apparent on the documents which indicated that the claimants' claim should be one which was examined with care.
7. The judge decided he could properly determine the matter there and then by giving judgment without further inquiry into the issue of quantum, it being apparent from the form of the application that the claimants were asking either for damages to be assessed or for summary judgment in the sum claimed.
8. The judge, having heard or read the evidence, came to the conclusion that the claimants were entitled on the documents and the statements before him to judgment in the sum of £35,000 and he made that order.
9. Mr Merrick-Hide complains about the conduct of both hearings, the hearing in September 1998 and the hearing in September 2000. As far as the hearing in September 1998 is concerned, his basic complaint is that his legal advisers failed to present the case in a way which enabled his defence to be understood and to have any real prospect of success. Unfortunately for Mr Merrick-Hide, his complaint is about a hearing and an order which, had he been dissatisfied with the conclusions of the judge, should have been the subject matter of an appeal at the time. It is now far too late for this court to interfere with the judge's order made at that hearing.
10. The only matter which this court can properly consider is the application for permission to appeal against the order of September 2000, which is an application which has been made in time and is properly supported by the appropriate documents.
11. Mr Merrick-Hide's complaint in relation to that hearing is that, leaving aside his concerns that he should not have been held liable in any event, he was not able properly to dispute the claim made by the claimants because, first and foremost, Mr McIntyre, who was the witness for the claimants and who made the supporting statement for them, was not present and could not be cross-examined. There is no doubt that if the hearing had simply been for damages to be assessed, it is possible that he could have persuaded the judge that it was inappropriate for the case to proceed without oral evidence.
12. However, as is quite plain from the documents, the matter was, at all relevant times, also an application for summary judgment and the judge was entitled to look at the material before him in those circumstances to determine the extent to which there was, in truth, any defence to the claims made by the claimants. He was entitled to do that on the documents and Mr and Mrs Merrick-Hide had been given the opportunity, if they considered it appropriate to do so, to put forward a proper reasoned defence to the claim in a statement verified on oath in accordance with the order that the judge had made in June 2000.
13. There was no such documentation from Mr and Mrs Merrick-Hide. In those circumstances the judge considered that he was justified in concluding that there was no real defence to the claim, at least to the extent of £35,000. The judge was entitled to deal with the matter in that way in the light of the orders that had been made by way of case management up until that time. In the absence of any detailed analysis of the claimants' claims in the documents submitted by Mr and Mrs Merrick-Hide to show what their defence was in relation to the claim, the judge was entitled to come to the conclusion that there was, in truth, no real defence, at least to the extent of the £35,000 which he considered was clearly established on the claimants' documents.
14. Having read with care the judge's judgment, and having read the relevant documents upon which the claimants' claim was based, it seems to me that, in the absence of any reasoned dispute to those figures that were produced and were accepted by the judge, there was no other proper solution for the judge to arrive at other than to give judgment as he did.
15. In those circumstances, I do not consider that Mr Merrick-Hide has any real prospect of being able to persuade this court to interfere with the way the judge dealt with the matter or the conclusion that he came to. In those circumstances, there is no basis upon which I can properly give permission to appeal.
16. The application is refused.
Order: Application dismissed.