UCB Bank Plc v Hedworth

J U D G M E N T

1. LORD JUSTICE MUMMERY: This is an appeal from a possession order made by Mr Recorder Narayan as long ago as 1st February 2002. The appellant, Mrs Gillian Hedworth, has applied at the adjourned hearing of her appeal today for an adjournment.

2. The case has a history of adjournments, both in the County Court before it was decided and in this court since Schiemann LJ gave permission to appeal on 11th June 2002. The adjournments have occurred and further applications for adjournments have been made for one reason, and that is the question of Mrs Hedworth's legal representation.

3. Originally her solicitors were a firm called Wholley Gooding, but they came off the record on 12th December 2002 and the appeal was adjourned. There were then attempts by Mrs Hedworth to obtain representation through a new firm of solicitors, Levi & Co of Leeds. Before they came on to the scene a considerable amount of work had been done on the appeal by Wholley Gooding, including a skeleton argument and amended skeleton argument by Mr Geoffrey Zellin, who had appeared on behalf of Mrs Hedworth at the trial. He also prepared a number of other detailed documents, including a chronology and supplemental skeleton argument.

4. The position with Levi & Co is that they have never come onto the record as Mrs Hedworth's solicitors. It appears from the most recent correspondence that they are not willing to act for Mrs Hedworth on this appeal, on the basis of the funding allowances which the Legal Services Commission are prepared to make in respect of the appeal. The position is that the Legal Services Commission have informed Levi & Co by letter of 2nd June that they were prepared to offer £1,000 in total, at non-risk rates, for themselves and counsel to investigate Mrs Hedworth's case, and, if the matter were to proceed, to provide a detailed case plan at non-risk rates to conclude the matter. The Commission asked that, if Levi & Co wished to proceed, they should provide a break-down of their own and counsel's fees up to the £1,000 limit and, if they wished to proceed on that basis, then the certificate which had been issued to Wholley Gooding would be transferred. Mrs Hedworth was informed by the Commission of the terms of the letter which had been sent to Levi & Co.

5. Levi & Co have made it clear in a detailed letter of 10th June that they consider that the amounts which the Legal Services Commission is prepared to allow are insufficient for them to provide proper advice to her and to the Commission in relation to a complex appeal. They said in the letter to her:

"I am afraid that we simply cannot deal with this matter, firstly on the rates that are being suggested by the Legal Services Commission for the initial consideration. Secondly, even if I could find a junior Counsel to deal with the matter at the rates in the Case Contract, I very much doubt that senior Counsel would deal with it for such rates."

So Levi & Co is not willing to act on the basis of the public funding which is available.

6. Mrs Hedworth has now been informed by the Commission that, as Levi & Co are not prepared to act for her in this matter, it is open to her to seek to instruct an alternative firm of solicitors; and they have repeated that, in the event that she is able to secure alternative representation, the Commission would be in a position to offer the transfer of the certificate with a £1,000 costs limit at non-risk rates to enable them to familiarise themselves with her case and advise as to whether the matter should be continued. That letter was sent to Mrs Hedworth on 4th June.

7. Mrs Hedworth had applied to Master Venne to adjourn this appeal so that she could arrange representation in this changed situation. Master Venne refused an adjournment. There was a renewed application to me, which I also refused on paper, on the basis that Mrs Hedworth had had ample opportunity to sort out the question of representation and she now had to be prepared to deal with the case in person, if the appeal was to proceed.

8. Mrs Hedworth has this morning informed the court that she has made attempts to obtain alternative representation. She has spoken to a firm of solicitors in Newcastle, Rowan Scott -- she spoke to them yesterday -- and she has made an appointment to see them next Tuesday. She asks that we adjourn this appeal to enable her to obtain representation through them, if they are willing to act on her behalf. She was unable to tell us how long an adjournment she would need, and she made it clear to us that, although she has had the benefit of the documents prepared by Mr Zellin and although she has also had some support from her daughter, who is a barrister, in preparing a skeleton argument for today, she simply does not feel able to proceed with the appeal in person. So she asks for the adjournment which I have mentioned.

9. The application was opposed by Mr Wonnacott for the respondent, UCB Group Ltd. He said that the application for an adjournment was just another application of the same kind which had been made throughout these proceedings, both before the trial and since this appeal was entered, and that the bank would be prejudiced by the delay in the adjournment: because the position with the bank's claimed security over the property at present occupied by Mrs Hedworth is a negative equity situation. So the bank will go on losing and any delay is bound to be prejudicial to them. He pointed out that some of the difficulties that Mrs Hedworth had in representation in this matter were the result of the instructions that she was giving as to how the case should be conducted by her legal advisers. He pointed to the falling out that there had been between her and Wholley Gooding and to the adjournment, which had had to be granted in December. He therefore wanted the case to proceed to a full hearing today, though he recognised -- correctly in my view -- the difficulties which Mrs Hedworth would face if she were required at the hearing today and tomorrow -- those being the two days set aside -- to deal not only with her primary ground of appeal but also with the points which have been raised by Mr Wonnacott in his Respondent's Notice. Those points would arise if Mrs Hedworth won her appeal. Mr Wonnacott fairly recognised that, if we proceeded today to deal with the primary ground of appeal advanced by Mrs Hedworth and if she succeeded on that, he would be in greater difficulties in resisting an adjournment of some period to enable Mrs Hedworth to deal with her representation on the Respondent's Notice points. Those points are listed in the notice as different, alternative or additional grounds, relating to whether the nature of the transaction was such as to put UCB on notice of the risk of undue influence and misrepresentation in this Etridge type of case, and further questions as to whether UCB Group Ltd was entitled to possession of the property by subrogation of a prior charge in favour of Barclays Bank Ltd. One only has to read the grounds set out in the Respondent's Notice to see the technical nature of the points upon which Mr Wonnacott would wish to rely, if Mrs Hedworth succeeded on her primary ground and the difficulties she would have in dealing with his legal arguments.

10. Among the possibilities that have been discussed is proceeding today to deal with the primary ground of Mrs Hedworth's appeal, and then, if she failed on that, that would be the end of the whole matter: if she succeeded on that, then adjourning to a later hearing -- preferably before the same constitution -- the grounds in Mr Wonnacott's Respondent's Notice. In respect of that we asked Mr Wonnacott whether he would be willing to consider, if Mrs Hedworth succeeded on her primary ground of appeal, agreeing to the whole matter being remitted for rehearing by the county court. He said he was not willing to consider that possibility. He made it clear that what he wished to do was that, if there was any adjournment to hear his points on the Respondent's Notice, that should be an adjournment for a further hearing in this court, not in the county court, and preferably before the same constitution.

11. In all those circumstances, I have reluctantly come to the conclusion that it is not realistic today to proceed with this appeal. It involves a risk that the appeal would fall into two separate hearings. It involves a risk that there would be a considerable further delay if Mrs Hedworth won her appeal and then we had to adjourn the Respondent's Notice for a hearing with representation. Long delays unfortunately can occur in this court when a matter is adjourned to be heard by the same constitution. Because the constitutions are fixed so long in advance and cases are listed for hearing, it can often be many months before an adjourned hearing take place.

12. Reluctantly, I am forced to the conclusion that it would be preferable in this case to grant the adjournment that is sought by Mrs Hedworth, but to order that the appeal hearing be expedited in the hope that she will have obtained legal representation. I would reserve all further questions of adjournments in the future to the members of this court, who are now familiar with the background to the case and the issues which arise on the appeal and will be in a better position than other members of the court to know whether it might be appropriate to grant further adjournments. If it is possible to bring this matter back as an expedited hearing before the same constitution, that would be preferable, but it cannot be guaranteed for the reasons which I have mentioned.

13. I must emphasise to Mrs Hedworth how important it is, now, that she pursues this question of representation. It may be that, at the end of her attempts, she is unable to find anyone who is willing to act for her in this matter, in which case she will be forced to the position of acting in person. But I should make it clear that, in view of the delays which have already occurred in this matter, expedition must be the priority in order to prevent further prejudice being suffered by the respondent.

14. For all these reasons, I would grant the adjournment.

15. LORD JUSTICE JONATHAN PARKER: I share my Lord's reluctance, but I agree with the directions which he has proposed for the reasons which he has given.

16. LORD JUSTICE KEENE: I also agree.

Order: Application allowed as above.