Case No:   CC /2003/APP/0676
Neutral Citation Number [2003] EWCH 3004 (QB)
 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11th December 2003

Before: 
THE HONOURABLE MR JUSTICE TUGENDHAT

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Between:

	Bianca Iona Job Tyoran 	Appellant	
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	Murray King	Respondent	

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Nicholas Isaac (instructed by Iliffes Booth Bennett) for the Appellant
Adam Pearson (instructed by Salim&Patel Associated Solicitors) for the Respondent

Hearing date : 1st December 2003
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Judgment

Mr Justice Tugendhat: 

1.	This is a claim for some form of monetary judgement in respect of the occupation by the defendant of premises of which the claimant is the owner.  The action was commenced as long ago as the 4th December 1995.  
2.	The claim in its present form is in an Amended Statement of Claim dated 19th November 1996 settled by the claimant in person.  After reciting his ownership he pleads that the defendant went into occupation of a part of the premises, which he refers to as “the suite”, on 21st October 1995. Her father was in occupation of part of the premises at that time and the initial occupation was, it is pleaded, by invitation of her father, “who is the tenant of the ground floor flat at the said address”.  It is pleaded that the claimant agreed in writing to accommodate the defendant. There is then a pleading of some proceedings in 1996 as a result of which the claimant undertook to the court to allow the defendant to use the suite until this action came to trial.  In the prayer the claim is expressed as one for mesne profits for the period 21st October 1995 to 10th April 1996 and from 11th October 1996 until the date of trial. There are other claims some of which were struck out by order dated 27th August 1999. 

3.	On 22nd October 1999 the defendant served a Re-Amended Defence and Counterclaim. For present purposes it is sufficient to refer to paragraph 11.  In that paragraph the defendant pleaded that she would rely upon the findings in two other cases to which she gives the references by which the claimant was seeking orders for possession against her father in relation to the ground floor and second floor of the premises.  There were separate proceedings in respect of each of those parts of the building.  She pleads that in those cases her father claimed statutory tenancies and a declaration as to his rights under the Limitation Act of 1980. The Counterclaim alleges harassment, nuisance and breach of covenant of quiet enjoyment. There is a claim for damages including damages for pain and suffering said to have arisen by reason of the matters complained of.  

4.	On 27th April 2000 an order was made by District Judge Edwards sitting at the Brentford County Court, in which the action was then proceeding.  The order recites that the judge heard that the claimant in person and the solicitors for the Defendant.  The order was that the proceedings be stayed and that there be a transfer to the Central London County Court.  The purpose of the stay, although not recited in the order, was to await the outcome of the two claims referred to in paragraph 11 of the Appellant’s Defence.  

5.	Those two matters came before His Honour Judge Wakefield at the Central London Civil Trial Centre.  By order made on 14th June 2001 the judge ordered the defendant in those proceedings, the Appellant’s father to give up possession to the claimant of the premises. He ordered the defendant to pay the claimant mesne profits for the period from 26th April 1995 until possession, to be assessed. In respect of the second claim a similar order was made for the period 26th April 1995 until 21st October 1995 likewise to be assessed.  The Counterclaim in each case was dismissed. There has in fact been no assessment. I have been informed today that sadly the Appellant’s father recently died.  

6.	On 1st February 2002 the Court of Appeal made an order. It included the dismissal of the appeal against the order of 14th June 2001, subject to minor alterations in the order of His Honour Judge Wakefield.

7.	On 27th August 2002, something over six months later the claimant, by now acting through solicitors, issued an Application Notice that he intended to apply for the action to be reinstated and for directions because the stay had been made pending the outcome of the claim against the defendants father.  For reasons which are not attributable to the claimant that application did not come on for hearing for more than twelve months.  

8.	On 1st September 2003 His Honour Judge Wakefield ordered that the stay of 27the April 2000 be lifted, that the Defendant’s application to strike out the claim be dismissed and that the matter be listed for a case management conference at the first open date after twenty-eight days reserving the matter to himself if possible.  

9.	On 26th August 2003 the solicitors for the Defendant had issued an Application Notice that they intended to apply for an order that the claim be struck out on the ground that it disclosed no reasonable grounds for bringing the claim, that the Statement of Case is an abuse of process and or in the alternative thirdly that the claimant has failed to comply with a rule practice direction or court order. All of those grounds are said to be pursuant to CPR 3.4 (2).

10.	The matter comes before me as an appeal from that order of His Honour Judge Wakefield, by permission of the single judge given on 9th October 2003.  Also before me are applications made on behalf of the Respondent for permission to serve a Respondent’s Notice out of time and to adduce fresh evidence. As to these applications, I heard submissions made orally and stated that I would consider the matter in the course of this judgment.

11.	Pursuant to CPR Part 52.11 this appeal is limited to a review of the decision of the learned judge.  By sub paragraph (2) I am not to hear evidence which was not before the lower court unless I order otherwise. Hence the Application on behalf of the Respondent.  Pursuant to sub paragraph (3) of that rule, 
“the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularities in the proceedings in the lower court”. 

 It is not suggested that sub paragraph (b) applies in this case.  It is common ground that I cannot interfere if I take the view that the solution adopted by the judge is one that I myself would not have adopted, unless the lower court has exceeded the generous ambit within which reasonable disagreement is possible.

12.	In his reasons for reaching the conclusions that he did, the learned judge recited the summary history of the matter.  In paragraph 5 of his judgment he says and I quote,
“I pause to note that strictly on the pleadings, as drafted by Mr King personally, he was putting his case against Miss Job-Tyoran on the basis of some kind of contract to pay accommodation charges, but it seems to me improbable that the claim would succeed on that basis.  He would have to put his case on the basis that she was a trespasser and was liable for damages in tort for trespass.  It seems to me that, when Miss Job-Tyoran pleaded her defence and Counterclaim, which I have just quoted [that’s a reference to paragraph 11 cited above] it was envisaged that is how the case would be argued, or at least in part argued”.
13.	The learned judge then goes on to recite how, following the application in this action for the proceedings to be re-instated made in August 2002, there was a hearing before His Honour Judge Hallgarten.  In that hearing the judge considered that His Honour Judge Wakefield would be better placed to hear the application, and so made no final determination on it.  However, he did order that any proposed Re-Amended Particulars of any claim should be served by 15 November 2002.  The matter then came before His Honour Judge Cowell on 16 December 2002 and 23 January 2003.  His Honour Judge Cowell again thought that the application should,  if possible, be heard by His Honour Judge Wakefield. That is the explanation for the delay of a year, which is not attributable to the Claimant.  It was not until 1st September 2003 that it was possible for His Honour Judge Wakefield to hear the application.

14.	His Honour Judge Hallgarten had, in his order of 21st October 2002, also ordered that the Claimant provide a witness statement setting out reasons for the delay since 14th June 2001.  That witness statement is the second witness statement of the Claimant and is dated the 14th November 2002.  In that witness statement he attaches a chronology of the two actions he had brought against the Appellant’s father.  He notes that the appeal was dismissed on 1st February 2002 and says that after that date he was advised by solicitors that it was possible that the Defendant in those proceedings might appeal to the House of Lords and that twenty eight days was the time limit that he would have from the date of the order.  He says that the Defendant did not in fact appeal, and it was then that he, the Claimant, concentrated on the present action.  He said that he intended to instruct solicitors in the present action in which he had been acting in person up to that point.  He said that the action had a long history and initially he had trouble locating all the relevant papers and putting them together in some order for his solicitor.  He said he was doing that during the period February to July 2002.  He also pointed out that he was aged 72 and not in good health, having suffered from three heart attacks and a stroke over the years.  He says his solicitors had to consider the papers following receipt of them before making the Application Notice. 

15.	In his reasoned judgment, His Honour Judge Wakefield was not greatly impressed by the reasons given for the delay by the Claimant.  He considered that the appeal to the Court of Appeal in the action against the Appellant’s father was no reason for not applying to lift the stay in this action. He did not think that the state of the Claimant’s health was a sufficient explanation for the delay. He considered that “there is some fault to be attached to him in failing to do so much earlier”.  

16.	However the judge went on to find that there was no prejudice to the Defendant, which arose by reason of the delay.  It seemed to him that the extra time that has elapsed since his judgment against her father has not caused the Defendant any prejudice in itself, and the case can be tried just as well now as it could have been in 2001.  

17.	I bear in mind that this judge has considerable knowledge of the background of all of this litigation, which I do not have. I am not in any event minded to take a different view of the facts.

18.	However, the judge went on to note that the statement of case by the Claimant might well have to be amended, and he specifically had in mind amendment to raise a plea of trespass.  He also expressed doubts as to the measure of damages or compensation that the Claimant was claiming.  However he concluded that it would be unjust to the Claimant to shut out his case by refusing to re-instate the action and that he could see no injustice to the Defendant in having the action re-instated. Accordingly he indicated that he would lift the stay.  

19.	He then went on to mention the strike out application, which had been issued on behalf of the Defendant.  Commenting on that he said, “It seems to me that it is improbable that the case would succeed”. The reason for this view is that, as the judge said, the claim was put on the basis of a letter and it is pleaded that she acquiesced in the terms of the letter. But the judge again repeated that, “This way of putting the case is unlikely to succeed, but in my judgment, Mr King ought to have leave to amend the case to put it on the correct basis of trespass”.  He said that there had been no abuse of process by the Claimant and that the Claimant had not been guilty of such flouting of the orders of the court or the rules of the court, which would enable him to strike out the action.

20.	The arguments in support of this appeal on behalf of the Appellant are set out in a skeleton argument dated 6th September 2003 and were elaborated in oral argument.

21.	The power to impose and lift a stay is governed by CPR 3.1, which reads as follows:
“(2) Except where these rules otherwise provide, the court may - … (f) stay the whole or any part of proceedings either generally or until a specified date or event … (7) a power of the court under these Rules to make an order includes a power to revoke or vary the order”.
22.	CPR Part 3.4 (2) provides: 
“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) That the statement of case is an abuse of the courts process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been no failure to comply with a rule practice direction or court order.”
23.	In addition in his skeleton argument counsel for the Appellant sets out CPR Part 24.2, although this is not referred to in his Application Notice.
24.	CPR Part 24. 2 provides:
“ The court may give summary judgment against a claimant … on the whole of a claim or on a particular issue if – (a) it considers that (i) that the claimant has no real prospect of succeeding on the claim or issue … and (b) there is no other compelling reason why the case or issue should be disposed of at the trial”. 
25.	On behalf of the Appellant it is submitted that lifting a stay is a matter of judicial discretion to be exercised reasonably and in accordance with the overriding objective. Where a stay has been imposed because of a concurrent action, as in this case, the court can and should lift that stay upon determination of the current action.  However, so the submission goes, where the application to lift the stay has not been made in good time after determination of the concurrent action, the onus is on the applicant to provide a reasonable explanation for the delay.  It is submitted that that is why His Honour Judge Hallgarten made the order that he did make about the service of the witness statement.  The longer the delay the more cogent the explanation must be to discharge this burden.  It is further submitted that in the absence of a reasonable explanation for delay in making the application, the stay should not be lifted.  Further the court should take into account all the circumstances in deciding whether to lift a stay, this will include whether the claim has a reasonable prospect of success.   It is the last sentence which is based on CPR Part 24.
26.	The argument for the Appellant addresses the reasons given for the delay up to the issue of the Application Notice in August 2002.  The period of delay is some fourteen months from the first instance judgment given on 14th June 2001, and some six months from the Court of Appeal judgment given on 1st February 2002.  It is accepted that both those periods would have to be abbreviated by a month or two during it would have been reasonable on any view for the claimant to have spent preparing and considering this application.
27.	This part of the argument concludes with the submission that in all the circumstances, and in particular given the learned judges findings as to the Claimant’s reasons for failing to make his application in good time, it is clear that no reasonable explanation was provided by the Claimant for the delay between the judgment at first instance in June 2001 and the application to lift the stay in this action. Consequently it is submitted, “for this reason alone, the exercise of discretion in favour of the claimant was unlawful and/or irrational”.
28.	Counsel for the Respondent, while challenging the judge’s findings as to the reasonableness of the delay, also submits that the failure (if it be such) to provide a reasonable explanation is not of itself a sufficient reason for this court to hold that the exercise of the discretion by the judge in favour of the claimant was unlawful or irrational. He submits there is no support for the submission that the onus is on the Applicant to provide a reasonable explanation for the delay.  He invites comparison with the position in relation to a strike out application.  He draws attention to the decision of the Court of Appeal in Biguzzi v Rank Leisure plc [1999] 1 WLR 1926; [1999] All ER 934. In that case the court drew attention to several alternatives to a strike out under CPR Rule 3.4, which may be appropriate to deal with non–compliance with time limits laid down by rules or orders.  These alternatives include awarding costs on an indemnity basis payable forthwith, ordering a party to pay money into court and awarding interest at a higher or lower rate.  
29.	Counsel goes on to submit that it is open, and was open, to a Defendant in the position of this Appellant to apply herself to lift the stay and to  have the action struck out.  He submits that failure to lift the stay in circumstances where a fair trial is still possible, and where there is no contumacious breach of order, is itself likely to be a breach of Article 6 of the European Convention on Human Rights, in particular his right to a determination to his civil rights and obligations at a fair hearing.  He submits that in so far as the learned judge’s observations on likelihood of success are concerned, these do not satisfy the test of either CPR of 3.4 or CPR Part 24, and that they are in any event  a kind which the Claimant should be given the opportunity to correct by amendment.  
30.	As to the underlying merits, it is submitted on behalf of the Respondent that there is no dispute that the Appellant did occupy the premises in question without payment for two periods of time, reflected in the prayer for relief cited above.  He points out that the second period of occupation was fortified by an injunction which was later converted to an undertaking - I note that the injunction of 26 July 1996 included the usual cross undertaking by the Appellant.  Counsel submits that, as the judge has recognised, the Appellant was not misled and envisaged that the case would be argued at least in part as a claim for damages for trespass.  Overall he submits that the learned judge was correct.
31.	In my judgment the submissions on behalf of the Respondent are to be preferred and are correct. There is in my judgment no basis for saying that the failure of the Claimant, such as it is, to explain the delay is of itself a matter which is so serious that the exercise by the judge of discretion to lift the stay is for this reason alone unlawful or irrational.  In my judgment the learned judge is bound to take into account all the circumstances, including in particular the justice of the matter in accordance with the overriding objective. There is no basis for saying that on the basis of the review that I am making, the decision was wrong.
32.	In oral argument the further submission was made on behalf of the Appellant that there was in fact prejudice.  This is not a matter  which was advanced in the Notice of Appeal and it is not supported by any evidence.  The prejudice relied on is as follows.  
33.	First it is said that there is a potential loss of a limitation defence, given the passage of time.  That submission may or may not be good if made in opposition to an application to amend the Statement of Case to plead trespass.  No such application is before me and any such application will fall to be made to the judge hearing the case management conference, if the case proceeds. 
34.	Second, it is submitted that the Defendant is entitled to a hearing within a reasonable time. A reasonable time, it is said, has now passed, and the particular circumstances of the Appellant have changed including the recent death of her father.  In my judgment even assuming these arguments to be open to the Appellant, they are not prejudice which ought to have led the learned judge to a different conclusion.  
35.	I turn then to the separate Application and argument of the Appellant on the basis of the weakness of the Claimants case.  Logically of course an application to strike out a claim cannot be made while that action is stayed.  However, if a claim is indeed doomed to failure, or if it has no real prospect of success, those points can legitimately be relied on in opposing an application to lift the stay.  The stay can lifted for the purpose of then striking the action out. 
36.	The first point made on behalf of the Appellant is that the observations of the judge which I have cited above (to the effect that the claim is unlikely to succeed in the form in which it is at present pleaded and absent  an amendment to plead trespass), amounts to finding that the claim should be struck out pursuant to CPR 3.4 or 24.2.
37.	I do not accept this submission.  It seems to me that if the judge had intended to express himself in terms which brought the case within either of those two parts of the CPR, he would have used the appropriate language taken from the provisions of the Rules themselves.  The view that a claim is unlikely to succeed is not, if held by a judge, a sufficient reason to strike it out or to enter summary judgment for the opposing party.  
38.	It seems to me that, whatever defects there may be in the pleading of the Claimant’s case (and I express no view one way or the other on that point) the Claimant should be given an opportunity to apply to amend.  That is not to say that in my judgment any application to amend should be granted.  That will be a matter for the judge hearing the application.  It may or may not be too late to reformulate all or any part of the claim.  Nothing I say in this judgment is intended to pre-judge that issue.
39.	For my part, I express no view on whether the Claimant is likely or unlikely to succeed. But I do consider that the claim as at present pleaded has a real prospect of success within the meaning of CPR Part 24. The pleading identifies him as the owner of the property. It is not disputed that the Appellant did occupy it, and did so for a period following the injunction and undertakings to which the Claimant refers in para 9 of the Amended Statement of Claim. It must be recalled that what has to be pleaded are the facts giving rise to a cause of action, not the legal argument.
40.	In my judgment a refusal to lift the stay in this action would be a disproportionate response to the findings of fault that the learned judge made in respect of the Claimant.  It follows that I do not need consider the application on behalf of the respondent to serve a Respondent’s Notice out of time, or to adduce further evidence.  
41.	In deference to the argument of counsel I will say this. The only point that it seems to me that it was necessary to ask for permission to raise, either in the Respondents Notice or by fresh evidence is in relation to the Respondent’s health and in particular as to what he did or did not understand.  The fresh evidence is in the form of a third witness statement of the Claimant.  In that witness statement he says: 
“I have tried to remember whether I was aware of the fact at the time that the Appellant`s fathers appeal against Judge Wakefield’s judgment in the King v Job actions did not involve the second floor.  I am really not sure.  However, what I am sure about is that it did not occur to me that I would apply to lift the stay in the present case until the Appellant’s father’s appeal was resolved.  So far as the present proceedings are concerned I was unrepresented at that stage. My memory has deteriorated since 1986 when I suffered a series of heart attacks and since my stroke in 1996.”
42.	I have already referred to the case of Biguzzi. It may be that the judge who hears this matter, if he takes the same view of the delay as was taken in the judgment under appeal at present, might consider that the Claimant should suffer some adverse consequence, such as not recovering as much interest as he might otherwise recover or as the case may be (if his action ultimately succeeds).  In coming to whatever conclusion he reaches in that case, the judge will no doubt have regard to the third witness statement of the Claimant.   For my part I do not find it necessary to make any findings in respect of that witness statement having regard for the conclusions that I have already reached.  
43. The appeal will therefore be dismissed with costs.  The order appealed should be varied so as to provide a fresh date for the case management conference.  The parties should attempt to agree this, and the amount of costs. In the event that they are unable to agree I have given leave at the hearing for further written submissions on these matters to be addressed to me and, in case it is both necessary and proportionate, that there should be a further hearing before me there shall be permission to apply.