Yorke v Katra

LORD JUSTICE DYSON: This is the defendant's application for permission to appeal and for an extension of time within which to appeal the order made by His Honour Judge Harris QC on 1 October 2002 in the Oxford County Court. When he filed his appellant's notice in this court on 11 November 2002 his application was accepted on the basis that the Court of Appeal was the appropriate appeal court. This was because the order drawn by the county court records that Judge Harris was hearing an appeal on 1 October. Indeed paragraph 1 of the order reads: "The appeal is dismissed." However, the note of Judge Harris' judgment indicates that the hearing before him on 1 October was not in truth an appeal.

The application before this court arises out of a building dispute which was allocated to the small claims track. The claim form was issued in December 2000 and records that the claimant was seeking £2,789.63 for sums due in respect of building work the claimant had carried out. The claim was stayed by District Judge Enzer on 17 April 2001 until a joint expert was instructed. On 15 October 2001 District Judge Enzer ordered that unless the defendant signed the letter of joint instruction initialled by him to a Mr Randall and delivered it to the claimant's solicitors before 4.00 pm on 17 October the defence would be struck out and judgment entered for the claimant.

Mr Katra signed that letter but he struck out two sentences of the letter on the ground that he considered that they did not represent the true factual position in relation to the matters to which they related. As a result of Mr Katra's refusal to sign the joint letter of instruction in the terms initialled by the judge, on 24 October District Judge Enzer made an order that the defence be struck out and judgment entered for the claimant.

Mr Katra applied to have that decision set aside on 13 March 2002. District Judge Raeside refused his application to set aside the order and refused permission to appeal to the circuit judge. On each of these two occasions Mr Katra, whose English is reasonable but by no means perfect, was a litigant in person.

On 18 March 2002 Mr Katra issued an application which sought to challenge the decisions made by the district judges. Judge Hull QC considered that application on paper and made an order dismissing it without hearing and without considering the merits. He considered that the application was procedurally defective. However, Mr Katra was given the opportunity to apply to have that order set aside, varied or stayed. That was an opportunity he did not seek to avail himself of. Instead, he filed a notice of appeal seeking permission to appeal out of time from the orders of District Judge Enzer and District Judge Raeside. That gave rise to the hearing before Judge Harris.

The note of the judgment of Judge Harris indicated that what was before him was an application/appeal from the decision of those two district judges. Judge Harris considered, however, that he was being asked to hear an appeal against Judge Hull's order and concluded that he had no jurisdiction to hear such an application. Accordingly refused to make an order in respect of it.

In my judgment, Judge Harris was right to hold that he had no jurisdiction to entertain what in substance was an application for permission to appeal against the order of Judge Hull. In any event this court has no jurisdiction to hear an application for permission to appeal against the decision of Judge Harris. It would nevertheless be possible for the defendant to challenge the order of Judge Hull QC by one of two different routes. The first would be by an application in the county court for an extension of time to set aside the order under CPR 3.3(5); the second would be by way of an application for an extension of time and permission to appeal to the High Court. It is open to me to reconstitute myself as a High Court Judge for this second purpose and determine that application. I propose to adopt that course.

I turn, therefore, to the question whether I should grant such an application in relation to the order of Judge Hull of 19 April 2002. The defence to the claim for £2,789.63 was that the building work was defective: thus the quality of the workmanship lay at the heart of the litigation, hence the decision by District Judge Enzer to order that a joint expert be instructed to deal with the workmanship issue. It seems to me that the first question is whether Judge Hull should have treated the application as an application for permission to appeal against the district judge's orders, and if so, whether he should have allowed the appeals.

Mr Katra says that the orders of the district judges were wrong and unjust. He has explained to me why he felt unable to agree to the letter of instruction in the precise form in which it had been initialled by District Judge Enzer.

It seems to me that it is strongly arguable that, in the circumstances of this case and in the interest of justice, the district judge should have been content to treat the letter of instruction to the expert as being acceptable in the form in which it was signed by Mr Katra. The essential issue with which the expert had to deal was the extent to which, if at all, the work had been carried out in a defective manner. The letter of instruction in the form in which Mr Katra signed it, albeit with the two sentences struck out, left in place all the parts of the letter which related to the issue of the quality of the workmanship. It seems to me that it is strongly arguable that the district judge should have recognised that Mr Katra was a litigant in person who felt very strongly about the matters which were the subject of the two sentences, which it seems to me did not bear directly on the real issue on which the expert had to express an opinion, and should have taken the view that the interest of justice would not be served by striking out Mr Katra's defence simply because, feeling strongly as he did and not in receipt of legal advice at the time, he insisted on striking out the two sentences. It seems to me, therefore, that it is strongly arguable that Judge Hull should have treated the application before him as an application for permission to appeal the decision of the two district judges and indeed allow such an appeal.

The position, regrettably, is that this litigation has taken many twists and turns and cost a great deal of money. Nevertheless Mr Katra is a litigant who is plainly left with a burning sense of injustice that his dispute has never been considered on the merits for a reason which it seems to me arguably is at most of a technical nature and should not have been allowed to deprive him of his day in court. If the respondent to this application were to agree, therefore, I would be minded to treat this as an appeal from the decision of Judge Hull and not of Judge Harris, to allow the appeal on paper, and to direct that the letter of instruction be sent to Mr Randall in the form in which it was signed by Mr Katra. If the respondent agrees to that course then the appeal should be allowed by consent on that basis and no further steps need be taken in respect of it. If the respondent does not, however, agree to that course, then I direct that this application be transferred to the Court of Appeal and reserved to me, and I will deal with the appeal on an oral hearing at which both Mr Katra and the respondent shall attend and/or be represented.