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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 >> Portman Building Society v Yarworth & Anor [2001] EWCA Civ 829 (25 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/829.html Cite as: [2001] EWCA Civ 829

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
(HIS HONOUR JUDGE TIBBER)

		Royal Courts of Justice Strand London WC2 25th May 2001

25th May 2001
1. LORD JUSTICE PETER GIBSON: This is an application by Mr Martin Yarworth for permission to appeal from the order made on 13th April 2000 by His Honour Anthony Tibber, sitting as a deputy circuit judge in the Gloucester County Court. The applicant had sought to appeal from the order of the district judge on 9th March of that year, refusing the applicant's application to suspend a warrant for possession of Underhill Farm. But his application was ten days out of time. The deputy circuit judge made no order on the application for permission to appeal out of time or to suspend the warrant and dismissed the appeal. He refused permission to appeal. The applicant then applied to this court. Roch LJ directed a oral hearing of the application.
2. The applicant appears before me in person. The papers before me are incomplete to an extraordinary degree. There is no transcript of the judgment of the deputy circuit judge, nor are there any notes of his judgment, other than a letter from the agents in Gloucester for the solicitors of the Portman Building Society ("the Portman"). The agents attended the hearing and by that letter they reported what occurred.
3. It is of course the responsibility of an applicant to this court to provide the necessary documents, and if he wants to appeal from a decision in the lower court it is for him to provide the judgment or notes of judgment. Because the applicant is a litigant in person this court obtained that letter and certain other documents. I must make do with them.
4. Before I recount what occurred before the deputy circuit judge I must endeavour to set out the background in more detail, so far as I can, from the incomplete material before me.
5. On 3rd August 1988 a legal charge was purportedly granted by the applicant and his brother, Robert Yarworth. I say "purportedly" because the applicant subsequently denied knowledge of the charge. By the charge they appeared to charge land at Underhill Farm to the Portman to secure an advance by the Portman of £27,000.
6. In January 1993 the Portman issued proceedings against the applicant and Robert Yarworth because of arrears under the legal charge. By his original defence the applicant claimed that he had not signed the legal charge, the signature on it which purported to be his being forged. In its reply the Portman pleaded that the applicant signed the legal charge in the presence of a solicitor, Mr K R Jenkins.
7. In September 1994 the applicant's legal advisers amended his defence to raise an alternative defence. It was pleaded on his behalf that if he signed the legal charge he did so by reason of undue influence exerted by one or both of Mr Robert Yarworth and his wife, and that, if he signed the legal charge in the presence of Mr Jenkins, that solicitor failed to give him proper legal advice.
8. In an affidavit in support of his application for leave to amend the defence, he says that he has no recollection of signing the legal charge, that it was possible that he did, but that, if he did, he did not do so knowingly and had no clear memory on the subject. He also said that he was not aware of the existence of a mortgage until he received a letter from the Portman. The difficulty in reconciling these affidavit statements with a plea of undue influence is obvious.
9. On 21st March 1995 the amended defence was struck out by District Judge Ing. The applicant then appealed to the circuit judge. His Honour Judge McNaught dismissed the appeal and granted the Portman a possession order.
10. At some time in the next four years a warrant for possession was issued. In 1999 the applicant made repeated attempts to prevent it taking effect. In January 1999 he applied for a stay of possession and a rehearing. Judge McNaught refused his application. He appears to have considered the question of forgery and said that the expert reports did not support the applicant's case. Other applications were then made by the applicant and an adjournment granted to enable the applicant to sell the farm. It was not sold.
11. A further application for the suspension of the warrant for possession was made to the district judge. On 9th March that application was dismissed. On appeal to the deputy circuit judge he made the order which I have recited.
12. The letter from the agents of the Portman's solicitors describes what occurred before the deputy circuit judge. In effect the deputy circuit judge said it was all far too late, the matter had been looked at by other circuit judges and it was quite impossible for him to accede to the application.
13. The deputy circuit judge was probably referring not only to the decisions of Judge McNaught in 1995 and 1999, but also to the decision of Mr Recorder Greenwood in another action. That was a separate action by which the applicant brought proceedings against Patricia Larkham and Mr Robert Yarworth in respect of the purported sale of another piece of land, Joints Meadow, which the applicant owned jointly with his brother. The applicant alleged that his signature on the sale documents was forged by his brother. In considering that issue the Recorder considered whether the legal charge of 3rd August 1988 was forged as the applicant alleged. However in his judgment of 19th December 1997 the Recorder thought it clear on the evidence of Mr Jenkins, who was the family solicitor, as well as the evidence of a forensic scientist, that the applicant had signed the legal charge. The Recorder found that Mr Robert Yarworth did forge the applicant's signature on the sale documents for Joint Meadows and that it was because of that injustice that the applicant attempted to dispute that he had ever signed the legal charge.
14. The Recorder said of the applicant:

"I am satisfied that Martin did know all along that he had signed the mortgage deed, but he was so disillusioned and bitter regarding the sale of Joint Meadows behind his back that he resorted to a foolish subterfuge in regard to the possession proceedings which followed."

15. The applicant in now seeking permission to appeal is seeking to have a second appeal. That is subject to special rules as is laid down in paragraph 2.19.1 of the Practice Direction for the Court of Appeal (Civil Division):

"Where there has already been one unsuccessful appeal to a court against the decision being challenged, for example, from a district judge to a circuit judge ... and the application is for permission for a further appeal to the Court of Appeal a more restrictive approach to the test for permission to appeal should be adopted. Permission should be granted only if the case raises a point of principle or practice, or the case is one which for some other compelling reason should be considered by the Court of Appeal."

16. Mr Yarworth has made it clear to me how deeply unhappy he is with the way things have proceeded. He still maintains that he never signed the legal charge and that things have gone wrong right from the outset. Even though he had solicitors and counsel acting for him, at any rate in 1995 when his defence was struck out, he submits that he has never had his case properly presented and that he has been denied justice.
17. His difficulty is that his defence was struck out six years ago and his appeal from that decision was dismissed by Judge McNaught and there was no attempt to appeal that decision. Further, the matter was looked at by the Recorder who heard evidence and reached the conclusion which I have set out. Furthermore, Judge McNaught looked at the matter yet again in 1999. It is therefore quite impossible at this late stage to seek to challenge the claim of the Portman on the basis that the applicant's original defence should have been held good.
18. I am afraid that this is not a case where any point of principle or practice is raised by the proposed appeal, nor has the applicant shown that he has any prospect whatever of succeeding on an appeal from the decision of the deputy circuit judge. Indeed, it was inevitable, given the history of this matter and the absence of any defence to the claim of the Portman, that the deputy circuit judge would refuse the appeal from the district judge. Nor is there any other compelling reason why the appeal should be heard.
19. Sympathetic though I am to anyone who is about to lose his family home, a home which, the applicant has told me, has been in the family for 100 years, I am bound in the circumstances to refuse this application. If there is a stay still in operation, it must of course be lifted.

ORDER: Application dismissed. Stay, if in operation, to be lifted.