B2/2001/1067/A, B2/2001/1067
Neutral Citation Number: [2002] EWCA Civ 696
IN THE SUPREME COURT OF JUDICATURE                              
COURT OF APPEAL (CIVIL DIVISION)           
ON APPEAL FROM HALIFAX COUNTY COURT
(HIS HONOUR JUDGE PJB ARMSTRONG)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Thursday, 18th April 2002
B e f o r e :

LORD JUSTICE SCHIEMANN

LORD JUSTICE ROBERT WALKER

-and-

LORD JUSTICE CARNWATH

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JAMES SPENCE GRAHAM
Claimant/Respondent

- v -

SAFDAR HUSSAIN
PARVEEN HUSSAIN
KARFAIT HUSSAIN
Defendants/Appellants
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(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)
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The Appellants did not attend and was unrepresented
MR T HARTLEY (instructed by Wilkinson Woodward, Halifax HX1) appeared on behalf of the Respondent
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J U D G M E N T
Thursday, 18th April 2002
1.	LORD JUSTICE SCHIEMANN: Before us is what turns out to be an ex parte application on behalf of a claimant builder to set aside a permission to appeal granted by Longmore LJ to a defendant employer.
2.	The background of the matter is, in short, that there is a dispute between the builder and the employer. The builder did not complete the job and left some unfinished work. He was paid a sum of money. He claimed that more was due to him. He sued for the extra and the defendants counterclaimed for the cost of completion. At the end of a four-day hearing there was judgment in favour of the builder for a sum of rather less than £5,000. The defendants were ordered to pay costs, which by this stage one imagines were significant.
3.	The defendants sought to appeal on a number of grounds, and their application required an extension of time. The judgment was effective on 5th February 2001 and the appeal was not launched until 11th May; so the defendants were nearly three months out of time. They said in their application:
“The appellants are out of time in which to seek permission to appeal. They were represented by Messrs Chadwick Lawrence solicitors until the 9th April 2001, and at no time were advised that there were any grounds for Appeal. Furthermore they were never advised as to the time limits for appeal.” 
4.	Presumably if it was thought that there were no grounds for appeal the question of time limits did not arise.
5.	With that application for an extension of time was served a witness statement of Michael John McDonnell, which contains this sentence:
“I am advised by Mrs Parveen Hussein that at no time have the Appellants been advised, nor were they aware, prior to seeing myself that there [were] any time limits in which to apply for permission to appeal. As a result they have been unaware that they were out of time to pursue such an appeal.” 
6.	What was not apparent from that statement is that Mrs Parveen Hussein, who is one of the defendants, is herself a solicitor, and indeed a solicitor in practice. The learned Lord Justice, when the respondents drew his attention to that fact, said:
“I do not rescind the extension of time granted to the defendants but you are at liberty to draw the attention of the court to matters which you raise at paragraph 6 of section 6 of your amended respondent's notice.” 
7.	That deals with a variety of matters. One of those matters is that section 10 of the appellant's notice gives the impression that the defendants were wholly dependent on the advice of their solicitors. In fact the second defendant is a qualified solicitor. I think the point that essentially is being made by Mr Hartley is that in principle these defendants claim that they are reliant upon the advice of the solicitors; they are seeking an extension of time from the court and it is incredible that a solicitor should simply not know that there were time limits; they have not been frank with the court in revealing that Mrs Hussein was a solicitor. Second, they have not been frank with the court in the sense that a Mr Garside had provided a witness statement before permission was granted. That witness statement had been given to the defendants, but the defendants failed to draw that witness statement to the court's attention. The gist of the matters inside the witness statement was that some of the material before the judge had been obtained by submitting to him invoices purporting to come from one person, a Mr Garside, and which indeed he had signed, but which misrepresented the work for which he was being paid. The total amount paid to Mr Garside's firm was a relevant factor in the calculations of the judge; and therefore it is said that if the witness's statement had been before the judge then the judge might well have come up with a different figure.
8.	The complaint being made is that while there are no doubt arguments as to the admissibility of this statement at this stage its existence ought to have been drawn to the attention of Longmore LJ when permission was being sought to appeal. A combination of those two factors is such that it would be wrong for the court to grant an extension of time.
9.	The argument the other way, I apprehend, would be that the judge, in his calculations, has made what is now admitted to have been a mistake in the claimant's favour to the tune of £3,000 and, given that it is admitted, time ought to be extended.
10.	We have considered those two arguments on either side and have come to the conclusion that the extension of time granted by the judge should be set aside. We are told by Mr Hartley that in those circumstances he does not wish to pursue his application to cross-appeal and is content for the judgment of the learned judge to stand. That would be the end result of today.
11.	We are conscious that the case was due to be heard today. We are told that counsel's clerk was informed of today's hearing but counsel's clerk is in Leeds and counsel is not here. In those circumstances the respondent to the present application may wish to consider whether to set this judgment aside. We cannot prevent him from so doing, but it seems to me that, given the relatively small amounts in principle at stake in the present case, and given the preliminary view formed by the court without having heard detailed argument, the appellant's case in relation to the judge's costs order is not one likely to succeed in this court even if he were to be granted an extension of time and he makes his £3,000 set-off point, it would be ill-advised to make such an application to the court.
12.	The reason why we are not impressed by his appeal in relation to costs is essentially this. The judge in his judgment dealing with the costs matter said that although at the end of the day the claimant had only recovered less than £5,000, and that normally in such a case costs would not be awarded, in the context of the present case and the behaviour of the defendants as described by the judge, the costs order which he made he thought was just. That reasoning seem to us in the context of matters before him to be a tenable form of reasoning with which this court would not have interfered. Does the notional allowance of any potential £3,000 make any difference? In our judgment it does not, because the principle is exactly the same, given that the judge started off from the point of view that he would not normally in a case of less than £5,000 have awarded costs.
13.	As we see it the result of today's application should lead to the end of this case.
14.	LORD JUSTICE ROBERT WALKER: I agree.
15.	LORD JUSTICE CARNWATH: I also agree although I would rest the refusal of the extension of time solely on the point about the failure to mention the fact that one of the appellants was a solicitor, and what seems to me to be the incredible suggestion that she did not know there was any time limit.
16.	I am not sufficiently sure about the precise timing of the availability of Mr Garside's statement to the appellants to rest my decision on that.
(Application to set aside the extension of time granted; Defendants do pay the Respondent costs of the application today and the costs of resisting the appeal).