[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 >> Lee & Anor v Stephens & Anor [2002] EWCA Civ 451 (26 March 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/451.html Cite as: [2002] EWCA Civ 451

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

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(His Honour Judge Graham Jones)

		Royal Courts of Justice Strand London WC2 Tuesday 26th March, 2002

1. LORD JUSTICE ALDOUS: Mr Paul Stephens seek permission to appeal against the order made by His Honour Judge Graham Jones on 4th December 2001. It is an order which on its face was made by consent. Before coming to the grounds upon which Mr Stephens seeks permission to appeal, I must shortly set out the facts.
2. Mr Paul Stephens was, with his ex-wife, defendants in a claim made by Mr Jason Lee and Mrs Maher, who is his now his ex-wife. They alleged that they had entered into a tenancy agreement with Mr Stephens who was acting as agent for his ex-wife. They moved into the property on 25th or 26th February 1995. They alleged that thereafter they had been subject to harassment by Mr Paul Stephens and by at least one person acting on his behalf. As a result they said that they had suffered loss, distress, discomfort and inconvenience, with the result that they had to vacate the premises. They claimed damages in respect of the eviction and aggravated damages for the way that they were evicted.
3. Mr Stephens contested all the facts as to the harassment and asserted that the property was owned by his ex-wife and that, although he had entered into a contract which purported to grant Mr Lee and Mrs Maher a tenancy, they had signed a document agreeing to vacate the premises shortly thereafter.
4. The matter came on for hearing before the judge on 4th December 2001. The claimants were represented by Mr Cottle of counsel. Mr Stephens appeared in person, but his ex-wife was also represented by counsel. At the opening of the hearing Mr Cottle informed the judge that Mrs Stephens had come to an arrangement with his client such that Mrs Stephens would drop out of the action. That left the claim against Mr Stephens, who did not have legal advice at the time.
5. Mr Cottle then proceeded to open the case before the judge. His opening proceeded upon the basis that the action against Mrs Stephens had been discontinued with no order for costs against her. There came a stage when the judge expressed a view that the costs expended to date and the expected costs for the next two days of the estimated trial period were such that he believed they could be exorbitant. He obviously had in mind the question as to whether it was right for the legal aid fund to pick up the costs of these proceedings. At that stage the judge asked Mr Stephens whether he had any property. Mr Stephens explained that he did have a property, but it had no equity in it. He explained that it was all left to his children and he had a substantial mortgage upon his property. He was at that stage living in lodgings and he explained his position which seemed to demonstrate that he had no funds. At that stage the judge stated that he considered the events - and he was referring to the whole of the action - were absolutely deplorable. Mr Cottle replied:

"The situation is that it is not as it meets the eye. We are quite confident of being able to enforce the judgment and the costs from our private investigator's effort in relation to these costs and the judgment."

6. There followed an exchange between Mr Cottle and the judge, ending with the conclusion of the judge that they had better get on with the trial. At that stage this conversation took place:

"MR STEPHENS: The last time I was here I made an offer of £4,000.

JUDGE GRAHAM JONES: I did not hear that.

MR STEPHENS: I've got the papers here, sir. I made an offer of £4,000. That's all I can afford.

JUDGE GRAHAM JONES: Well, perhaps you should not be telling me this - you should not tell me about offers you have made without prejudice.

MR STEPHENS: What it is, I made the offer because I didn't want all the hassle. I was fed up with it; it's been going on for about six years.

JUDGE GRAHAM JONES: Yes, well, it has been going on - it is all six years ago.

MR STEPHENS: And I offered £4,000, but they said, `We want another 5,000.' I said, `Well, I haven't got 5,000, but 4,000 would stop it all.' I mean, that's all I can afford. And they said, `No, we want another thousand pounds.' Well, I didn't know what to do."

7. At that stage Mr Cottle, counsel for the claimants, invited the judge to rise so that he could have a word with Mr Stephens. When the judge came back Mr Cottle informed the judge that:

"... we have got a dramatic resolution of our differences, ..."

8. He went on:

"... the order which I am most keen that Mr Stephens understands is one that I have been through with him now a couple of times, and so, as far as I am concerned, he understands it, but I want to be sure that the court is sure that he understands it."

9. The judge then said:

"Yes, of course. Thank you, Mr Cottle, I am very grateful to you."

10. There followed an explanation by Mr Cottle to the judge of what had been agreed. Judgment would be entered on the claimants' claim for damages in the sum of £4,000 to be paid by 4th June to the claimants' solicitors. The order for costs was that Mr Stephens should pay the claimants' costs up to a ceiling of £7,500, such costs to be assessed and his payment should be staggered to a level to enable him to pay them. After that had been explained to the judge and he had gone into it in some detail, the judge then turned to Mr Stephens. I must read a substantial part of the transcript:

"JUDGE GRAHAM JONES: Mr Stephens, do you understand?

MR STEPHENS: Yes, sir, I do.

JUDGE GRAHAM JONES: My understanding of what you are agreeing to is this: you are going to pay them £4,000 anyway.

MR STEPHENS: Yes, sir.

JUDGE GRAHAM JONES: But you are going to pay that by the 4th of June next year, so you have got about six months to pay it.

MR STEPHENS: Yes, sir, that's right.

JUDGE GRAHAM JONES: All right?

MR STEPHENS: The only reason is, because what I got, they all had to be on some sort of special form, and I didn't know that.

JUDGE GRAHAM JONES: I am sorry?

MR STEPHENS: This termination letter was supposed to have been on some special form?

JUDGE GRAHAM JONES: Yes, to be a valid notice it has to ----

MR STEPHENS: Well, I didn't know that.

JUDGE GRAHAM JONES: That is their letter, is it not, and not yours?

MR STEPHENS: Yes, but I didn't know that they had to put it on some special form. Do you know what I mean? So, in other words, they're not worth the paper they're written on.

JUDGE GRAHAM JONES: I think that is right, yes.

MR STEPHENS: So, that's why I'm doing it.

JUDGE GRAHAM JONES: All right. I see. Anyway, you are going to pay them £4,000. So, you understand fully, once I have made this order, that is an order of the court and if you do not pay them the £4,000, they can come along and they can get various orders, including making you bankrupt - there are various ways that they can enforce the order.

MR STEPHENS: Yes, sir. They'll get their money, sir.

JUDGE GRAHAM JONES: If you have got any house or any interest in any business or any property at all, they can get at that eventually. Do you understand that?

MR STEPHENS: Yes, sir.

JUDGE GRAHAM JONES: So, it is not an empty promise that you make. Once I have made this order, then you are £4,000 the poorer, all right?

MR STEPHENS: I know that, sir.

MR COTTLE: Thirteen and a half thousand, or is it eleven and a half?

JUDGE GRAHAM JONES: I am doing it stage by stage. You are going to have to pay the £4,000, right?

MR STEPHENS: Yes.

JUDGE GRAHAM JONES: Then the £7,500, the costs - what you have said is that you will agree to pay the costs of the action which have got to be assessed, but you will not in any circumstances be liable for more than £7,500. The costs of the period when you were legally aided and your liability to pay those costs will be a matter, if they apply, to be assessed by the costs judge. Do you understand that?

MR STEPHENS: Yes, sir.

JUDGE GRAHAM JONES: But I imagine that - I mean, that is a fairly narrow period when you were legally aided; it is only from the 9th of April to the 1st of July. So, that is, what, two/two and a half months or thereabouts - it will only be, I would have thought - I do not know, obviously, because I do not know what work was done - but I would have thought it is a fairly small part of the costs - do you follow?

MR STEPHENS: Yes.

JUDGE GRAHAM JONES: So, realistically, you are going to have to pay pretty well the £7,500.

MR STEPHENS: Yes, sir.

JUDGE GRAHAM JONES: Pretty well; it may be that something can be reduced from it.

MR STEPHENS: Yes, but I'll have to do it monthly, though.

JUDGE GRAHAM JONES: The defendant's payments to be staggered to a level he can afford."

11. There was then a discussion about the staggering of the payments.
12. There followed an order that Mr Stephens should pay £4,000 by way of damages and costs up to a ceiling of £7,500 to be paid by instalments.
13. Mr Stephens seeks permission to appeal because he says he was under a misunderstanding as to the position as to the claimants' legal aid. He says that he did not receive the trial bundle until the morning of the trial. He had had to leave the place where he lived at 3 o'clock in the morning and he had been ill with a migraine and collapsed. I will come to Mr Stephens being ill later. But the late receipt of the trial bundle cannot bear upon the question upon whether he can now dispute this consent order. He stood up and said he had offered £4,000. There was then a discussion in the absence of the judge. The judge then came back and counsel explained to him the order. That has absolutely nothing to do with whether he had a trial bundle at all.
14. I come back to Mr Stephens' health. He said that he had to leave home at 3 o'clock in the morning and that he had a migraine. He went to pick up a witness and collapsed at his house and was in considerable distress. During the hearing he had a further terrible migraine and agreed to do everything that was asked of him to get out of court. The fact of his ill health was supported by the statement of Mr Smith. It is Mr Stephens' belief that he had a defence to the action and in essence he wishes to argue before this court that he had a valid defence, but he entered into the agreement because of his ill health.
15. If he succeeded on appeal the matter would have to go back for a trial. No trial took place. I have read at length the relevant extracts from the transcript of the proceedings, and it is quite clear that Mr Stephens never at any stage during the proceedings sought an adjournment because of ill health. He never told the judge that he was suffering of any ill health. There is no indication in the transcript that he was not able to comprehend what was going on. I have no doubt, having read the transcript, that if he had mentioned his health, the judge would have taken even more care to ensure that Mr Stephens was in a position to arrive at the decision that he seems to have done.
16. In my view it is clear from the transcript that both Mr Cottle, the counsel who appeared on behalf of the claimants, and the judge were at pains to explain to Mr Stephens the form of the order that was to be made and his obligations under it. Of course one has sympathy with Mr Stephens in his position and his ill health, but he entered into an agreement with the claimants which was recorded in the court order. It was fully explained to him and I can see no real prospect of this court setting aside such a judgment.
17. Permission to appeal is refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)