Southern & District Finance Plc v Turner

This matter has a convoluted procedural history. It is best to set out the history of the litigation first before we describe the route by which it has come to this court, and the matters we have to decide.

On 3^rd June 1992 the claimants Southern & District Finance Ltd made a loan to the defendant Mrs Elizabeth Mary Turner. The loan was secured on her property in Formby Road, Lytham St Anne’s. Mrs Turner fell into arrears, and on 21^st May 1993 District Judge Woods made a suspended possession order. In due course a warrant for possession was issued, but this was suspended on terms in August 1993, these terms being later varied in April 1995.

On 22^nd January 2001 the defendant issued a notice by which she sought permission to counterclaim for a declaration as to the enforceability of the original loan agreement on the grounds that it had not been properly executed in accordance with the requirements of sections 60 to 65 of the Consumer Credit Act 1974 (“the 1974 Act”) and the regulations made thereunder. She also sought to re-open the loan as an extortionate credit bargain pursuant to section 139 of the 1974 Act. At the same time she sought an order that the original possession order dated 21^st May 1993 should be set aside.

On 16^th March 2001 District Judge Bryce dismissed the application to set aside the 1993 order. He granted permission to counterclaim on a limited basis, however, and gave appropriate case management directions. The trial of the counterclaim was fixed to take place on 23^rd November 2001. The district judge directed that any order made on the counterclaim should be limited to relieving the defendant in whole or in part from any further obligations under the credit agreement; recovering payments she had made to the claimants on or [after] 22^nd January 1995 (save as to payments made pursuant to paragraph (2)(a) of the order dated 21^st May 1993); and any consequential orders as to costs. This order is said to have meant that although the defendant could maintain her contention that there was an extortionate credit bargain, she was not allowed to contend that the agreement had been improperly executed.

On 15^th November 2001 the defendant’s solicitors told the claimants that they wanted the trial adjourned because they wished to appeal the March 2001 order. They knew they were out of time for appealing the order. On 22^nd November an order was made that the trial be vacated on the defendant’s undertaking to file an application for permission to appeal out of time by 4pm on 30^th November 2001.

The appeal notice was filed on 29^th November 2001. It made no mention of an application for an extension of time. In due course Judge Appleton refused permission to appeal on paper. An oral hearing of the permission application was sought and fixed for 21^st February 2002. Prior to that hearing the claimants’ solicitors wrote a letter to the court in which they observed that the application was made eight months out of time, and that no reasons for the delay had been given. This letter was not placed before the judge at the hearing, at which he granted permission to appeal the March 2001 order on the basis that it could not be said that the appeal had no real prospect of success. The fact that the application was so long out of time was apparently overlooked. The substantive appeal was in due course fixed to be heard on 5^th December 2002.

At the hearing of the appeal the judge took of his own motion the point at the beginning of the submissions in reply that an extension of time for appealing had never been sought. After hearing submissions, he gave a short judgment which had the effect of bringing the proceedings to an end, without any judgment being given on the merits. In due course an order was drawn up on 12^th December 2002 which simply directed that the appeal be dismissed and that the claimants’ costs be added to the security.

Because of the procedural conundrum surrounding the question of the proper destination of any further appeal, it is necessary to consider the terms of the judge’s oral judgment.

After setting out the procedural history, Judge Appleton said that it was only at the latest hearing that it was realised that relevant procedural provisions had not been observed. He referred to CPR 52.4(2) (which requires an appellant to file an appellant’s notice at the appeal court within 14 days of the relevant decision of the lower court) and CPR 52.6 which provides:

“(1)

An application to vary the time limit for filing an appeal notice must be made to the appeal court;

(2)

The parties may not agree to extend any date of time limit set by –

(a)

these Rules;

(b)

the relevant practice directions; or

(c)

an order of the appeal court or the lower court.”

He also referred to paragraph 5.2 of the Practice Direction to CPR Part 52 which provides that:

“If an appellant requires an extension of time for filing his notice then application must be made in the appellant’s notice. The notice should state the reason for the delay and the steps taken prior to the application being made.”

The judge then referred to the decision of this court in Sayers v Clarke Walker [2002] EWCA Civ 645; [2002] 1 WLR 3095, which prescribes that if an application is made for an extension of time for appealing after the original prescribed time for appealing has expired, in cases of any complexity the court should follow the checklist contained in CPR 3.9 when deciding whether to exercise its discretion to grant an extension of time for appealing.

The judge said that on this occasion an extension of time for appealing was not sought on the appeal notice. He added that CPR 3.9 prescribed that any application for relief must be supported by evidence, of which there was none. He said he had come to the conclusion, regrettable though it was, that there was no way round the problem for the defendant.

He then touched briefly on the merits, and indicated that there appeared to be force in the defendant’s arguments, but he concluded his judgment by saying:

“It just occurs to me, if there is anything to be salvaged from the, as it were, wreckage of failure to comply with the rules, that if there is a sound argument then whenever the court in this particular case or with these particular parties is being asked to make an order the arguments can be revisited, but regrettable as it is, this has been an oversight on the part of the defendant's advisers which I simply, in the light of the Court of Appeal’s guidance in Sayers v Clarke Walker, cannot see any way round. For these reasons the appeal is bound to fail.”

The judge clearly thought that he was making an order dismissing the appeal, because he told the defendants’ counsel that any application for permission to appeal would have to be made to this court. As we have said, his order was subsequently drawn up in those terms. When the Notice of Appeal was filed in this court, however, a question was raised whether the appeal properly lay to the High Court or to the Court of Appeal. On 13^th May 2003 Brooke LJ adjourned the paper application for permission to appeal to be heard on notice with the appeal to follow if permission was granted. He also gave the following directions:

“The court will first consider whether it or the High Court has jurisdiction to hear the application.

If it decides the High Court has jurisdiction one judge of the court … will immediately sit as a High Court judge (under section 9 of the Supreme Court Act) and hear the application, with the appeal to follow if permission is granted.”

He said that he was directing this course because of the procedural complexities to which the matter gave rise.

The parties did not themselves address these procedural complexities until prompted to do so by a note prepared by Deputy Master di Mambro which was sent to them by a direction of the court last week. In response to this note the defendant contended that her appeal was directed at Judge Appleton’s refusal to exercise his discretion to waive the irregularity pursuant to CPR 3.10 and thereafter to apply the criteria contained in CPR 3.9 in determining whether or not to grant an extension of time. In that case the appeal would lie to the High Court because it would be a first appeal, not a second appeal (Foenander v Bond Lewis & Co [2001] EWCA Civ 759; [2002] 1 WLR 525).

The claimants for their part suggested that there were at least four different ways of analysing the judge’s decision:

(i)

The judge dismissed the appeal on the grounds that permission to appeal should not have been granted. They accept that this analysis can arguably be criticised because the judge never determined the actual substance of the appeal.

(ii)

The judge refused to entertain an application for an extension of time. They rejected this analysis on the grounds that the judge’s substantive reason for doing what he did was that there had been no such application and there was no evidence on which he could entertain an application.

(iii)

The judge revoked his grant of permission to appeal pursuant to CPR 3.1(7). In that case there would be no scope for Mrs Turner to appeal against his decision, since the refusal of permission to appeal by a first appeal court is not susceptible to appeal to a second appeal court.

(iv)

The judge set aside his grant of permission to appeal pursuant to the exceptional powers conferred on an appeal court by CPR Part 52.9(1)(b).

Mr Fadipe, who appeared for the claimants, suggested that the fourth analysis was correct (although he conceded that there was much to say in favour of the third). He cited in support of his approach a passage in the judgment of Sedley LJ in Hartsmere Borough Council v Harty [2001] EWCA Civ 128, in which he said:

“… (if) the Judge was misled by an Appellant, not necessarily deliberately, into giving permission to appeal, that may well be a compelling reason within the Rule. It must … involve showing (a) that the materials put before the judge were inaccurate or incomplete; (b) that these deficiencies had a bearing upon the grounds on which permission to appeal was given; and (c) very importantly, that but for them permission to appeal would not have been given.”

We have had the opportunity of considering the transcript of the proceedings before the judge. When he observed that no application had been made to extend the time limit for appealing, Mr Say, who appeared for the defendant, said that he made that application “if it is necessary”. The judge told him that he could not, since such an application had to be supported by evidence. After debating this question for a while, Mr Say drew the judge’s attention to CPR 3.10 which provides that:

“Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

(a)

the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b)

the court may make an order to remedy the error.”

Mr Say submitted that the purpose of CPR 3.10 was to catch a situation like this where there had been a procedural irregularity but the justice of the case required that it should be overlooked.

Although the judge does not mention CPR 3.10 in his judgment, it is clear that he rejected Mr Say’s submission on the basis that the requirement to file evidence in support of an application for an extension of time was in his view mandatory, and that a failure to file evidence was irremediable.

The judge certainly did not refuse permission to appeal: his judgment shows that he considered that the underlying point at issue was arguably a good one. Nor did he dismiss the appeal on the merits. Whether the correct analysis is that he decided he had no jurisdiction to hear the appeal (it now not being open to the defendant, for want of evidence, to apply to extend the time for appealing), or that he decided, without expressly saying so, not to grant the extension of time informally sought at the hearing, the result is the same. This was not an order made by a judge on hearing the appeal, such that any appeal could only lie to this court as a second appeal. It was an order of the type discussed in Foenander v Bond Lewis [2001] EWCA Civ 759; [2002] 1 WLR 525 which is susceptible of appeal as a first appeal to the next higher court in the hierarchy. For these reasons we told the parties at the hearing that the application for permission to appeal should therefore be heard by a High Court judge.

This is at least the third occasion this year in which difficulties over appeal routes have arisen because insufficient attention was paid to that question when the order of a court was drawn up. In Hackney v Driscoll (No 1) [2003] EWCA Civ 614 it was not clear whether an order made by a circuit judge was made by a judge of the county court at first instance, or by a circuit judge in an appeal court. In Fowler de Pledge [2003] EWCA Civ 703 it was not clear whether a circuit judge sitting as a first appeal court had directed that a matter should be heard by another circuit judge as an appeal by way of rehearing, or as a rehearing of the original application. In the present case not nearly enough attention was paid by either the judge or by counsel to the true nature of the order that was made.

As a result, a lot of avoidable trouble and expense was caused before the correct appeal route was ascertained. We hope that every effort may be made in future to ensure that attention is paid to the precise nature of any order being made, so that the appeal route, if any, can be readily and correctly identified.

Mr Say accepted that there was no evidence before the judge, and no evidence before this court, to support the application for an extension of time. He said, however, that this was a procedural irregularity which could be waived pursuant to CPR 3.10, as could the failure to apply for an extension of time for appealing, whether on the original notice of appeal or by subsequent amendment. He submitted that we would not be able to understand the very unusual features of this case unless we first understood the argument which the district judge’s order had shut his client out from advancing on her counterclaim.

She wished to contend in paragraphs 3-5 of her draft defence and counterclaim that the original credit agreement was not “properly executed”, and that the consequence of three of the matters of which complaint was made was that section 127(3) of the 1974 Act gave the court no discretion to enforce the agreement. She therefore sought a declaration that it was unenforceable. As to the other two matters, she accepted that the court had a discretion pursuant to section 127(1) of the Act whether or not to permit it to be enforced, but she asserted that the court should in its discretion permit no further enforcement having regard to the payments already made.

It is unnecessary for the purposes of this judgment to describe in any detail the complaints she made. Her first three complaints centred round a number of failures to comply with regulation 6 and Schedule 6 to the Consumer Credit (Agreements) Regulations 1983 in relation to the manner in which the figure for credit was stated (or alternatively, not stated).

Mr Say argued that it was common ground that the defendant could take this point if there was ever any question of the claimants wishing to enforce their possession order (see Watchtower Investments Ltd v Payne [2001] EWCA Civ 1159), and in those circumstances it would be consistent with the overriding objective if the defendant was permitted to take the point now, so that the matter cold be cleared up once and for all. He said that if the defendant was permitted to add to her counterclaim paragraphs 3-5 of the draft defence and paragraph (i) of the prayer (which sought a declaration as to the enforceability of the credit agreement and/or the mortgage deed) that issue could then be heard as a preliminary issue which could not possibly take more than a day to try. If, as he anticipated, the defendant succeeded, this would avoid the need to conduct a hearing on the “extortionate credit bargain” issue for which a 3-day hearing was being sought.

Mr Say said that he would not oppose a condition being imposed on any order the court might make which would have the effect of barring the defendant from claiming restitution of any past payments she had paid in relation to this matter.

Against this background he submitted that in the peculiar circumstances of this case the court should overlook the fact that no evidence had been filed in support of the application for an extension of time. He impliedly invited us to permit an amendment of the notice of appeal, so that it included an application for an extension of time, and to consider his application without any evidence. In this context he invited us to presume that his client herself was not at fault, still less that she had deliberately instructed her solicitors not to appeal the district judge’s order soon after it was made.

In these circumstances Mr Say made the following submissions in relation to the CPR 3.9 check list:

(a)

So far as the interests of the administration of justice were concerned, the issue would have to be determined sooner or later and it would be very much better if the point could be determined quickly as a preliminary issue, particularly in the light of the savings in court time that would be achieved if the point is a good one.

(b)

The application for relief was not made promptly.

(c)

The judge accepted that the failure to comply with the time limit was not intentional, and we were invited to do the same.

(d)

In the absence of explanation, we were entitled to assume there was no good explanation for the default.

(e)

It was common ground (but see para 31(e) below) that there had been no previous history of non-compliance with other rules, practice directions or court orders.

(f)

We were invited to presume that the failure to comply was caused by the defendant’s legal representatives.

(g)

The trial date for the counterclaim had already been adjourned, and if permission to take this point is granted, and the point is a good one, the projected trial need never take place.

(h)

It is accepted that the failure to comply has caused delay to the claimants, but if the defendant is not permitted to claim recovery of money already paid, the claimants will suffer no prejudice because the issue will have to be tried in any event.

(i)

The granting of relief would have a beneficial effect for both parties since if the point is a good one the litigation can be brought to an end more swiftly and expeditiously than would otherwise be the case.

In response to these submissions Mr Fadipe submitted that rules were there to be obeyed. CPR 52.2 states that the parties to an appeal must comply with the relevant practice direction, and paragraph 5.2 of the Practice Direction (see para 10 above) also uses the mandatory word “must”. He conceded that CPR 3.10 gave the court the power to waive an irregularity of this kind if it was just to do so, but CPR 3.9 also prescribed that an application for relief “must” be supported by evidence, so that we would have to waive that requirement, too. He said that we were not entitled to presume that the defendant had not given her solicitors specific instructions that she did not wish to appeal the district judge’s order at the time it was made. He also complained that the defendant’s solicitors had not honoured their undertaking (see para 5 above) to file an application for permission to appeal out of time.

Against this uncompromising background, Mr Fadipe’s submissions in relation to the application of CPR 3.9 followed a fairly predictable course. In so far as they differed from Mr Say’s submissions, he contended:

(a)

That it was not in the interests of the administration of justice that a litigant should be able to obtain an order for an adjournment of a trial on the basis of undertakings given by her solicitors to the court, and that those undertakings should then be ignored. Nor was it in the interests of the administration of justice that the court should overlook the breaches of mandatory rules, since this conduct inevitably led to satellite litigation. The appeal against the March 2001 order was eight months out of time.

(e)

Whilst there was substantial compliance with the directions in the March 2001 order, there was an eight-year delay in applying to set aside the May 1993 order.

(h)

The failure to comply has caused the claimants not only delay but also significant costs which may well prove irrecoverable.

(i)

Because the trial of the counterclaim is concerned with a quite different issue, and the issue raised by paragraphs 3-5 of the draft defence and counterclaim can be properly raised if his clients ever sought to enforce the possession order, the appeal to Judge Appleton, and indeed the present appeal, is somewhat academic.

In our judgment the judge was clearly wrong to hold that he had no power to correct the irregularity pursuant to CPR 3.10. He had already concluded that the appeal had potential merit, and CPR 3.10 unquestionably gave him power to give the defendant permission to amend her notice of appeal (to include an application for an extension of time) and to waive the requirement for evidence if he considered it just to do so. The defendant was clearly at mercy, but if the judge had appreciated the extent of his powers, he would have appreciated not only that he had power to waive the irregularities, but that if the point the defendant was raising was a good one to allow the appeal out of time might well lead to a much more expeditious outcome to the litigation than was otherwise in prospect.

He could also have mitigated any potential injustice to the claimants by imposing a condition when granting the appeal to the effect that the defendant was not to be at liberty to claim the recovery of any of the money she had paid to the claimants in the past even if the credit agreement were ultimately held to be unenforceable. The value of the court’s power to make conditional orders pursuant to CPR 3.1(2)(a) was illustrated in three cases decided by this court in July 2003: Price v Price [2003] EWCA Civ 888; [2003] 3 All ER 911; Beck v Ministry of Defence [2003] EWCA Civ 1043 and Jones v T Mobile (UK) Ltd [2003] EWCA Civ 1162. In the last of these cases Brooke LJ observed at para 28 that:

“This new power to make conditional orders gives a court a greater flexibility to make orders that are both proportionate and just than used to be the case when the court’s powers were limited to saying ‘yes’ or ‘no’ in response to applications of this kind.”

The new CPR regime does not lend itself to the cast-iron rigidity which was reflected in Mr Fadipe’s submissions. Of course judges at every level must be astute to correct sloppy practice and to avoid at all costs slipping back to the bad old days when courts took a relaxed attitude to the need for compliance with rules and court orders, so that expensive and time-consuming satellite litigation was only too apt to flourish. But judges must also keep in mind the overriding objective, and be ready to recognise the case where an appropriately drafted conditional order may achieve justice more effectively than merely saying “yes” or “no” to the application that is being made.

In our judgment, the interests of the administration of justice clearly demand that the issue raised by paragraphs 3-5 of the draft defence be tried as a discrete issue at an early date. It would not be in anybody’s interests to leave the question whether this credit agreement is enforceable at all to hang about in the air until such time as the claimants elect to enforce their possession order. Mrs Turner is at present only paying interest on the loan. If she stopped paying altogether, the claimants would no doubt wish to bring the situation to a head by seeking to enforce their order. It would be very much better if the trial of the issues was now organised in an orderly manner, so that there will be no question of any need for an extensive hearing on the “extortionate credit bargain” issue if the “unenforceable credit agreement” point turns out to be a good one. Any injustice that might otherwise be suffered by the claimants due to the dilatoriness of the defendant and her solicitors can be mitigated by imposing the condition we have suggested.

We will therefore allow the appeal and permit the defendant to amend her original notice of appeal by adding an application for an extension of time for appealing. Although in theory we could now remit the matter to the circuit judge to allow him to determine the appeal, it would be thoroughly undesirable if we were to do so, given the length of the delays that have taken place since the district judge made his order.

We turn therefore to the district judge’s order, of which Mr Fadipe has submitted a short note (which has not been submitted to the district judge for approval). It appears that the district judge declined to set the 1993 possession order aside on the basis that he had no jurisdiction to do so, and there was no application for permission to appeal against that order eight years out of time. He does not appear to have been invited to direct the trial of the issues arising on paragraphs 3-5 of the draft defence and counterclaim as discrete issues. Argument ran instead on the appropriateness of setting aside the 1993 possession order and the length of time over which the defendant could counterclaim the recovery of payments made in the past.

In our judgment, in view of the way in which the argument has developed on the appeal we are entitled to interfere with the district judge’s order not because he was clearly wrong on the matters that he did decide, but because he did not take into account material matters (such as making a conditional order or the desirability of ordering a discrete preliminary issue on the enforceability issue) which could have led him to exercise his discretion differently.

In these circumstances we are entitled to exercise our discretion afresh. We will therefore add an additional paragraph (1A) to the district judge’s order to the effect that:

“The Defendant may also counterclaim for a declaration as to the enforceability of the credit agreement and/or mortgage deed and/or of specific provisions thereof on the grounds set out in paragraphs 3-5 of the draft defence and counterclaim sent to the court under cover of her solicitor’s letter dated 23^rd January 2001 on the condition that if the said documents or any of them are held to be unenforceable the defendant is not to be at liberty to claim restitution of any of the monies paid by the claimants prior to the date of this order. ”

The cost of all this ancillary litigation appears to be almost entirely attributable to the way the defendant’s solicitors have handled the matter. If the matter had been put before the district judge in the way that it has been put before us, no doubt he would have made a similar order and all the subsequent expense, which was increased by their failure to appeal timeously or to prepare their application for an extension of time correctly, could have been avoided.

In these circumstances, although we are willing to hear argument on the point, we would be disposed to direct that the defendant pay the claimants their costs of the appeals both to Judge Appleton and to this court, such costs to be added to the security. We have been told that the defendant has a legal aid certificate. In these circumstances, on any assessment of the defendant’s costs, the costs officer or costs judge should deduct any sums properly to be designated as “wasted costs” which are attributable to the negligent way in which the appeals against the district judge’ order appear to have been conducted under the defendant’s certificate.

If the parties can agree on the terms of an order whereby the issues arising under paragraphs 3-5 of the draft defence can be expeditiously tried as a preliminary issue before a circuit judge, we will be happy to make such an order when this judgment is handed down.