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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 >> Shettar v Soni (t/a A & E Estate Agent [2001] EWCA Civ 786 (9 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/786.html Cite as: [2001] EWCA Civ 786

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME WITH APPEAL
TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Wednesday, 9th May 2001

1. MR JUSTICE LLOYD: This is an application by Dr Shettar for permission to appeal against a judgment given in Wandsworth County Court by Mr Recorder Widdup as long ago as 3rd June 1999 by which the recorder struck out the claimant's claim. Dr Shettar also needs an extension of time for appealing, but the delay in putting in his notice of appeal was relatively modest and I doubt whether we would have difficulty with extension of time if we were otherwise in favour of Dr Shettar's application for permission to appeal.
2. The application for permission to appeal came before Lord Justice Roch on 7th February 2000 at an oral hearing at which Dr Shettar was in person, as he has been before us, and no notice had been given to the respondent of the hearing. Lord Justice Roch was not entirely satisfied with the state of the matter and he directed that the application should be heard on notice to the respondent with appeal to follow immediately if leave were given. That is how the matter is listed before us. In fact, the respondent is neither here nor represented. He also gave some directions about the note of the recorder's judgment because unhappily there is no satisfactory note or transcript of what the recorder said on 3rd June. The fullest note is a first note signed by Dr Chatterjee, counsel for the plaintiff/claimant on 3rd June, which is signed and dated 5th January 2000.
3. In the circumstances it is necessary to go into the proceedings in somewhat more detail than otherwise would be necessary. The claim was brought originally by a summons in the county court dated 2nd June 1998. The claim is for a total of £108,613 plus the court fee. But the nature of the claim is very far from clear from that document. It is clear that it includes a claim for the repayment of money advanced totalling £95,891. From the inadequately photocopied version of the document we have it is not clear there was any other aspect of the claim although it seems likely there was, at any rate from later documents. The summons refers to the claimant being in a position to wait for five or six weeks for repayment. The summons also indicates that the loans were made on dates between 19th October 1989 and 13th September 1990. At that stage the defendant put in a generalised denial of any liability of any loan having been made and any indebtedness being outstanding to the plaintiff.
4. The defendant instructed solicitors, unlike, at this stage, the plaintiff. Those solicitors started trying to discover from the claimant details of the basis of the claim he was putting forward in correspondence which started on 18th June 1998. On 29th June 1998 Dr Shettar replied saying that there had been some confusion about the case and he was trying to clarify with the court that it ought to be treated as a criminal case because it was based on fraud and was being investigated by the police at Chiswick. In July 1998, in the absence of any satisfactory or helpful answer, as they saw it, from the claimant, the defendant's solicitors put forward and sent to him a formal request for further and better particulars of the claim which initially the claimant refused to answer. Eventually, he provided some sort of an answer to it in August, making it not necessary at that stage to apply for an order although an application had been formally made. By the request for particulars the defendant's solicitors were seeking a good deal of information about the details of the case made which had been put in the most generalized and vague terms in the summons. One of the things they were asking was for the claimant to make clear on what date all or any of the payments made by way of loan were to be repaid to the plaintiff by the defendant. They were seeking a number of pieces of information by way of clarification of the claim. The plaintiff's answer was not really very helpful because it listed a number of transactions and said they were based on fraud. It did not, for example, say anything about when the sums lent were due to be repaid. It indicated that there were further elements to the claim which may have been apparent from the summons although not from the copy we have: one based on the plaintiff having handed over a car to the defendant for the purposes of repair and the other based on some antique furniture having been left at the defendant's premises and not returned or recovered.
5. The claimant also applied to the court formally to have the matter treated as a criminal matter. Eventually, both on that application and I think on the defendant's applications, a number of hearings took place without any particularly conclusive result.
6. Eventually, the matter came before His Honour Judge Rose in the Wandsworth County Court on 17th February 1999. On that occasion Dr Shettar was there in person and the defendant was represented by a solicitor. There had been a witness summons issued at the instance of Dr Shettar in respect of a detective constable at Peckham Police Station, and one order made was that that witness summons be discharged. The circuit judge ordered that the plaintiff was to file and serve an amended particulars of claim by 3rd March and in that document he was to set out with particularity the nature of his cause of action, the date or dates on which it is alleged that the cause of action arose, the nature of relief claimed and all other material matters that would enable the claimant to know the nature and extent of the case he had to meet. If that were not done the action was to be struck out. The defendant was given time to serve a full defence to the amended particulars of claim.
7. On 3rd March Dr Shettar served a document headed Amended Particulars of Claim which we have. I have to say it did not go very far towards complying with the detailed directions of the judge. It says about the loans in paragraph 3:

"Some time in 1989 the Defendant approached the Plaintiff to sell one of his properties with planning permission for a nursing home. There was some delay. In the mean time he approached for financial help of about £110,000 +. The loan was advanced to defendant with clear understanding that the amount should be paid within few weeks. That sum of money is still outstanding."

8. In paragraph 5 he said:

"All the cash he had from the Plaintiff which he was to pay back to the Plaintiff never received."

9. Later in the document, at paragraph 8, he lists the items lent coming to £95,891. He goes on later to mention four further sums of £3,100 which also are said to be loans to the defendant; those are undated apart from one said to have been on 29th June 1990. The loans of £95,000 or so are, as in the summons, said to have been made during the year from October 1989. Dr Shettar also mentions the two other claims, the claims based on the car and the claim based on the three-piece suite said to have been delivered to the defendant's home on 16th February 1990. The car is said to have been handed over in September 1989.
10. It is helpful to have in mind something about the history after that date, which can be seen from an affidavit sworn shortly thereafter by the defendant's solicitor, Miss Shah. She records the early correspondence I have mentioned in which she tried to obtain clarification of the details of the claim. She refers to the formal request for particulars of claim and the plaintiff's failure to supply those. She refers to the formal application made to the court and to the plaintiff's provision of the particulars I have mentioned on 7th September, the date when the application was listed for hearing. Those particulars were considered to be unsatisfactory.
11. On 2nd December there was a pre-trial review heard by Mr Assistant Recorder Garnett QC at which he did not make an order for particulars. He dismissed an application by the plaintiff which I take to be the application that the matter proceed as a criminal matter. He ordered disclosure of documents and adjourned the pre-trial review until 17th February. Miss Shah said that she wrote on the defendant's behalf to confirm he never had had any documents of any description relevant to the matters in issue and said the plaintiff had not made any disclosure by way of compliance with the order made. That is the situation in which she said His Honour Judge Rose's order was made on 17th February. She complained in her affidavit that the particulars of claim were in breach of the court's order because they did not state the cause of action or state when it was alleged to have arisen and failed to provide the necessary information for the defendant to understand the nature of the case to be met. She also said that, following the service of the amended particulars of claim, she made a further attempt to ask the plaintiff to provide the necessary information by way of correspondence. There is a letter asking for specific information in that respect. Failing compliance with that request, on 17th March 1999 the defendant applied to the court to strike out the claim. That was the application that is supported by this affidavit of Miss Shah. She pointed out that the action was commenced on 2nd June 1998, that they had sought particulars of the basis of the claim but they had not obtained them, that the circuit judge recognised the need for that information in his order of 17th February but that this had not been complied with.
12. Miss Shah said towards the end of her affidavit that she was unable to file a defence because of the inadequacy of the plaintiff's pleading. She believed that the plaintiff's conduct had been obstructive, unreasonable and uncooperative and that he had been afforded several opportunities to provide particulars that a reasonable defendant would require in respect of the matters against which he is called to defend himself. She submitted that the plaintiff was in breach of the orders made on 2nd December 1998 as regards disclosure and 17th February 1999 as regards the content of the pleadings. She said that his conduct amounted to an abuse of the process rendering any further proceedings unsatisfactory and asked, on the basis of the default in serving properly particularised particulars of claim, that the present action be struck out.
13. Miss Shah served a request for further and better particulars on 6th April 1999, again asking for some of the crucial details of dates. That was answered on 21st April 1999 in terms that do not go any way towards providing the necessary information. In that situation the defendant served a defence on 28th April 1999 in which he denies that any money or goods were procured by fraud. He relies on the Limitation Act. He denies that any monies were obtained by way of loan. He pleads the Limitation Act again. In short terms he denies the whole of the claim.
14. That is how the matter stood when it came before His Honour Judge Rose again, on 12th May 1999. He ordered that the defendant's application to strike out should be listed for hearing on 3rd June, that of the court's own volition the claimant should show cause on the same occasion why summary judgment should not be entered against him dismissing the claim under Part 24 of the Civil Procedure Rules, that both parties provide any written evidence on which they intend to rely by 24th May with evidence in answer to be put in by 28th May. He also ordered that the defendant disclose to the claimant by way of specific disclosure all bank statements of the defendant from January 1989 to December 1991 by 21st May.
15. On 3rd June the application came on. It is right to note that Dr Shettar had taken advantage of the direction for evidence in one respect, namely by putting in an affidavit of Elvis Bernard Dias in support of his claim with certain documents exhibited. He speaks in general terms as to his awareness of at least some of the basis of Dr Shettar's claim in respect of money he lent and the car. He does not add to the details of Dr Shettar's claim. He does not say anything for example about the date when the loans were supposed to be repaid. He does not speak of any acknowledgment by the defendant of his indebtedness. Dr Shettar did not at that stage put in any evidence of his own. He did put in Mr Dias's affidavit with a number of exhibits at which we have looked which do not appear to amplify the matter in any substantial respect as regards the deficiencies in the particulars of claim. The recorder acceded to the defendant's request and struck out the claim and refused permission to appeal.
16. The circuit judge having made the specific order for disclosure, the defendant made an affidavit on 19th May dealing with that, saying that he had one bank account during the relevant period but he could not remember the account number, that he had no longer any bank statements and although his bank could have provided copy bank statements if they knew the account number they would charge £10 for every statement copy. He said although there had been bank statements in the possession of the police they were not for this period. It is for that reason he did not produce any bank statements.
17. He also said that in or about 1994 Dr Shettar's trustee in bankruptcy wrote to him demanding payment of £15,000 alleged to be due. He said he denied any indebtedness and the matter was not pursued. Dr Shettar took issue with that. That is how the matter stood before the recorder. It is the fact that Dr Shettar was made bankrupt and was bankrupt for part of the period relevant in terms of the history of this matter. He was made bankrupt on 23rd November 1993. He was discharged three years later on 23rd November 1996 and there was a certificate by his trustee in bankruptcy in January 1998 which, he says, was the first point after his bankruptcy when he was able to proceed with the matter. Dr Shettar relies on his bankruptcy for not proceeding sooner with the claim against the defendant. That is not a sufficient answer to the plea based on the Limitation Act because the trustee in bankruptcy could have proceeded if he had thought it appropriate.
18. The other matter is that, before the proceedings, a criminal prosecution was brought against the defendant in respect of housing benefit fraud. He was convicted and, no doubt, sentenced appropriately. That is much relied on by Dr Shettar as corroboration for the theory that the defendant was guilty of fraud in respect of Dr Shettar as well.
19. To bring the matter up to date, the recorder refused permission to appeal. Dr Shettar applied for permission to appeal to the Court of Appeal on 6th July 1999 which was out of time but not by very much. That was heard by Lord Justice Roch and was adjourned on the basis that I have already mentioned. It seems that there was a hearing listed on 26th February 2001 at which no one attended on either side and the court formally dismissed the application. No doubt, on the basis of non-communication or otherwise, Dr Shettar has been able to persuade the court to relist the matter, and he has appeared before us this morning to renew the application.
20. We have the difficulty that there is no proper note of what the recorder said. We have Dr Chatterjee's note which says that the defendant's case was primarily based on one issue, namely that the case was time barred. There was reference to Dr Shettar's bankruptcy, demands for payment from time to time, the acknowledgment by the defendant in 1989 or 1990 of the existence of the debt, the court being asked to exercise its discretion and power to allow the claimant to waiver from an abridged application of the Limitation Act, but to no avail. The note says that the recorder confirmed that the debt existed but there was no reasonable ground for bringing a claim dealing necessarily with the limitation issue. That note was made available to the defendant's solicitor who attended before the recorder, who wrote a letter commenting on the note and suggesting that it is a very limited note, which is apparent. We have seen that note; I do not think it takes the matter further. The recorder was shown the notes and he said - this is already 15 months after the hearing - he cannot say

"whether [they] represents an accurate account of my judgment, nor ..... whether I dealt `almost solely with the limitation issue'."

21. It seems to me that the way we have to proceed is on the basis of the material that was before the recorder, to see whether it was within the scope of the jurisdiction open to him to come to the conclusion he did. It is clear that the Limitation Act was an important feature before him because that would have been at least part of the basis for striking the matter out under Part 24. It is also clear that the matter was put to him on behalf of the defendant, at any rate in terms of evidence, on the basis that the claimant's particulars were wholly inadequate and that he had failed to comply with the previous orders of the court and that the matter should be struck out on that footing as well. As the matter appeared to Lord Justice Roch, most of the grounds of appeal relied on by Dr Shettar in his appellant's notice, which is his own document, are points on which there is no possible arguable case. The fact he was bankrupt during the limitation period cannot be relied on to extend the limitation period. The fact that he says the loans and delivery of the goods were procured by fraud does not entitle him to any deferment of the running of the limitation period. It is perfectly plain that he knew from the outset that he had made these loans and that they had not been repaid.
22. What Lord Justice Roch identified as his reasons for ordering that the matter be investigated further was limited to two points: one was that there had been some acknowledgment of the debt by the defendant within the six-year period before the commencement of proceedings by way, it is said, of a request to the claimant not to commence proceedings on an assurance that he would soon settle his debt.
23. The second matter was that it might be argued that the loans were loans in respect of which time would not run until a demand was made for the payment. If that were the case the first demand may have been made within the six-year period - June 1992.
24. So far as those two grounds are concerned, the way it is put in the skeleton argument is not such as to encourage confidence that there could be any successful challenge to the recorder's judgment because the evidence before him did not include anything by way of any suggestion from Dr Shettar or from anyone else that the defendant had in fact acknowledged the indebtedness. The only evidence, apart from the original acknowledgments which pre-date 1992, put before the recorder was the evidence of Mr Dias which is not in any way directed to the question of acknowledgement, nor is there any mention of acknowledgment in the claimant's pleadings.
25. So far as the original terms of the loan are concerned, what we have is the statement in the summons that the claimant could wait a few weeks and the statement in the amended particulars of claim to similar effect with the clear understanding that the amount should be paid, that is to say repaid, within a few weeks. It seems to me that the absence of any evidential material beforethe recorder to bring the matter within either of those two grounds would be a sufficient reason for the recorder to have struck the matter out on the basis of the Limitation Act and for this court to be unable to allow an appeal.
26. Moreover, the application before the recorder was made as well on the basis that Dr Shettar had, despite many opportunities, wholly failed to put his claim into proper particularised form and he was, in that respect, in breach of the court order and that it would be unjust for the defendant to allow the proceedings to continue. He had enough opportunities for it to be clear that he was not going to be able to improve his position or, whether or not able to, he was not in fact going to improve his position in terms of pleadings. It seems to me that that would have been - whether or not it actually was - a sufficient basis for the recorder's decision to strike the matter out in addition to the other grounds relied on as regards the Limitation Act.
27. Dr Shettar is very aggrieved by the fact that the defendant did not produce bank statements which the police said had been returned to him. The defendant's answer is that although bank statements were returned to him by the police, they were not bank statements for the period 1989 to 1991 which was the subject of the disclosure order. Furthermore, I cannot for my part see how the disclosure, if it had been possible to be made, of bank statements for 1989 to 1991 could have assisted Dr Shettar in this respect in overcoming the difficulties he had in demonstrating he had a viable cause of action which could withstand the Limitation Act defence. In a sense it seems to emphasise the fact that he was looking for material from elsewhere to support his claim to provide details to his claim which he was unable to provide for himself but which, had his claim been viable, he would be able to provide for himself.
28. Accordingly, while I do not regard the short delay in lodging the notice to appeal as critical, I cannot see good reason for granting permission to appeal.
29. I refuse permission to appeal and extension of time.
30. LORD JUSTICE LATHAM: I agree.
Order: Application refused