BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barnes v Handf Acceptances Ltd [2002] EWCA Civ 1238 (25 July 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1238.html
Cite as: [2002] EWCA Civ 1238

[New search] [Printable RTF version] [Help]


Neutral Citation Number: [2002] EWCA Civ 1238
B1/2002/0800

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(MR JUSTICE HART)

Royal Courts of Justice
Strand
London WC2

Thursday, 25th July 2002

B e f o r e :

LORD JUSTICE CHADWICK
____________________

ERIC BARNES Applicant
- v -
HANDF ACCEPTANCES LTD Defendant

____________________

(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

The Applicant did not attend and was unrepresented
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE CHADWICK: This is a renewed application for permission to appeal against an order made on 17th December 2001 by Hart J in proceedings brought by the applicant, Mr Eric Barnes, against Handf Acceptances Ltd. The order itself was made on an appeal by the applicant against an order made on 26th June 2001 in the Lambeth County Court. This, then, is an application to which CPR 52.13 applies. Permission cannot be granted unless the appeal would raise an important point of principle or practice or there is some other compelling reason why a second appeal should be entertained in this court: see section 55(1) of the Access to Justice Act 1999.
  2. The application was listed for hearing at 10.00 am this morning. At about 9.10 am the Civil Appeals Office received a telephone call, purportedly from Mr Barnes' wife, to say that he would not be attending court. The office was told that he had found it necessary to go to the doctor. In those circumstances no medical certificate to explain why the need to go to the doctor this morning was so pressing that Mr Barnes could not attend at court to pursue his application could be expected. It may be that a medical certicifate will be forthcoming in due course. If the court is provided with a sufficient reason for Mr Barnes' non-attendance then an application to reinstate can be considered. But, in the circumstances that this is, as I have said, an application for a second appeal - and is a renewed application, because at Mr Barnes' express request, the matter has already been considered and refused on paper - it has seemed to me appropriate to deal with it in Mr Barnes' absence. I will direct that a transcript of my judgment be provided to Mr Barnes at public expense. A transcript will also be placed on the file, so that if an application to reinstate is made the court will have that assistance. Further, Mr Barnes may think it sensible to consider, in the light of the judgment that I am about to give, whether an application to reinstate would really serve any purpose.
  3. When refusing this application on paper on 28th June 2002, I wrote:
  4. "The Appeal for which permission is sought would raise no important point of principle or practice and there is no other compelling reason why the Court of Appeal should hear it.
    The judge directed himself correctly as to the principles to be applied in deciding whether or not to allow an appeal against a decision to refuse permission to serve amended particulars of claim. He dismissed the appeal on that issue for the reasons which he gave in a full and careful judgment. In particular, he was satisfied that to allow the proposed amended pleading into this litigation would (i) make it impossible to deal with the claim expeditiously and fairly and (ii) necessarily lengthen the case beyond anything that could be regarded as proportionate to the underlying claims (which he regarded as relatively simple and which, as a result of his order, the claimant is able to pursue). Even if this were not a second appeal - to which the provisions of section 55(1) of the Access to Justice Act 1999 apply - there would be no basis upon which this Court could properly interfere with the judge's decision."
  5. In the light of that indication as to the problem faced by Mr Barnes on this application, it might have been expected that some attempt would be made to identify the important point of principle or practice on which he sought to rely, or the other compelling reason (if any) where the Court of Appeal should entertain his appeal. He has not taken the opportunity to do that.
  6. The claim in the action arises out of the terms on which the defendant, a finance company, agreed to provide funds to assist the applicant, who is described as a property developer, in the development of property known as 1 Rimer Street, London SE4. The funds were provided on the terms of a facility letter which the applicant signed on or about 6th May 1997. The terms provided for payment by the applicant on completion of the development - which was described as a joint venture - of a premium of £15,000 or 50 per cent of profits, whichever was the greater.
  7. Put shortly the applicant claims that he was put in a position by the defendant in which he had no option but to sign the facility letter because he had already committed himself to the purchase of the Rimer Street property on the faith of representations or a belief that funds would be forthcoming from the defendant on the same terms as had previously been agreed in respect of an earlier (but continuing) funding arrangement in respect of another property, 225 Graham Road, E8. The applicant says, in effect, that he signed the facility letter under protest and that he has been protesting ever since. Subsequently, in about November 1997, the defendant company took over the development and instructed its own builders to complete the works. The applicant says that this was done in order to run up interest and costs against his account. The applicant sought a declaration that the premium of £15,000 was unenforceable; that the agreement was for a loan and not for a joint venture; that he should be given possession of the property; and that he should be enabled to redeem the loan.
  8. On at least two occasions, namely 30th April 1998 and 11th December 1998, the county court made an order for the sale of the property at Rimer Street. Following an unsuccessful attempt by the applicant to obtain from this court permission to appeal against the order of December 1998 - which had been made by consent - the property was eventually sold in May 1999 for £160,000. That event plainly required some amendment to the particulars of claim - both to bring matters up-to-date and to revise the nature of the relief sought. But no further steps in the action were taken until August 2000 or thereabouts when the applicant applied for the automatic stay which had been imposed by paragraph 19(1) of the Practice Direction supplemental to CPR Part 51 to be lifted. That led to a number of orders in the county court to which Hart J referred in detail in his judgment; and ultimately to a hearing before His Honour Judge Cox in June 2001.
  9. At that hearing there was before the court an application by the applicant to file amended particulars of claim; and an application by the defendant to strike out the existing particulars of claim as disclosing no reasonable grounds for bringing the claim, alternatively, for summary judgment. The county court judge decided that he would not allow the amended pleading; and, on the basis that he understood that the applicant was no longer seeking to rely on the original pleading, he gave summary judgment for the defendant under CPR Part 24 on the basis that there was no reasonable case. That was the position when the matter came before Hart J on appeal in December.
  10. Hart J took the view that there was no basis upon which the original pleading could be struck out. It disclosed a cause of action which the applicant was entitled to pursue. So he set aside the judgment of His Honour Judge Cox. The affect is that the applicant is now in a position to pursue his claim on the basis of his original particulars of claim with such amendments to those particulars as he can persuade the court to allow. But he did not persuade Hart J to allow the amended particulars of claim which he had put before Judge Cox. Hart J said this in the course of his judgment, at page 17 B-F:
  11. "So, as it seems to me we have a situation in which there was a claim before the court which disclosed a reasonable cause of action but which plainly required some amendment if it was to reflect (a) the events that had taken place since the service of the original particulars, and (b) the new ways in which the claimant wanted to put his case. It is in relation to the latter that the amended particulars of claim are directed. It is indeed an extraordinary document. It was not at the time but has now been numbered and it consists of some 423 paragraphs, many of which contain subparagraphs. I believe it has been calculated that there are something over 700 paragraphs altogether. There are certainly, in the version that has been produced before me today, 132 pages. It would be a fruitless task for me to attempt to summarise their essence. I think an attempt to summarise their essence is doomed to failure."
  12. But the judge indicated that he had read the particulars from beginning to end, and he then made certain comments upon them. He described the amount claimed as a sum which had to be regarded as fantastic in the context of anything the court could be likely to award by way of loss of profits. But, as he pointed out, it was not the extravagant nature of the claim which had led Judge Cox to refuse the amendments; rather, it was the sheer volume of the amendments which rendered a just trial of the issues completely impossible. As the judge himself put it at page 20 of his judgment, between B and E:
  13. "... the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings. So far as that is concerned, I entirely agree with His Honour Judge Cox. It may be the case that after diligent and lengthy perusal of the amended particulars of claim, it is possible for the court to spell out from it certain broad elements which the court could then begin to try, but it would be an extremely lengthy process, so lengthy as to be, in practice, impossible for the court to deal with, having regard to the requirements of the overriding objective..."
  14. He then went through the considerations to be taken into account when seeking to give effect to the overriding objective set out in CPR 1.1 and came to the view that they would not be met if an amendment of this length and complexity were introduced into what he plainly regarded as a comparatively simple claim. Accordingly he refused to allow the amendment.
  15. The position therefore, as I have already indicated, is that Mr Barnes has a claim on foot which he can pursue. He can seek to apply to amend so as to raise the matters which have occurred since the sale, and to identify the revised relief that he now seeks. But he invites the court to entertain an appeal against the judge's exercise of discretion in what is essentially a case management function - namely is the claim pleaded in a way which makes it possible to proceed to trial consistently with the overriding objective. The judge held that it was not. There is, to my mind, no prospect that this court would interfere with that decision. Further there is an attempt to bring a second appeal. There is plainly no point of principle or practice involved and no compelling reason why a second appeal should be entertained in this court.
  16. For those reasons the application is refused.
  17. As I have said, it is open to Mr Barnes if he thinks fit to apply to reinstate the application. But he will need to satisfy the court that his failure to appear this morning is explicable and excusable. It may be that, in the light of the indications that I have given, he will feel that a more profitable use of his time and energies would be to attempt to reformulate his claim in a way which would have some prospect of being allowed as an amendment in the county court.
  18. As I have said I direct that a transcript be prepared at public expense and sent to Mr Barnes.
  19. ORDER: Application refused; no order for costs; transcript of judgment to be supplied to the applicant at public expense.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1238.html