Generay Ltd v Containerised Storage Company Ltd

J U D G M E N T

1. LORD JUSTICE MUMMERY: On 7th October 2002 His Honour Judge Roger Cooke gave judgment in an action between Generay Ltd and Containerised Storage Company Ltd. He declared that the disputed land described in the pleadings in the action, was the property of Generay, the claimant, by virtue of adverse possession.

2. It is unnecessary to go into the details of the case, since the present application is principally concerned with the circumstances in which the notice of appeal lodged on 29th October 2002, along with the application for permission to appeal, was struck out for failure to comply with orders of the Court of Appeal.

3. The application before the court today is that an order made by Master Venne (who was then Master of Civil Appeals) dated 4th June 2003 should be reviewed under CPR 52.16(5) and set aside, that the appeal be reinstated and directions given for the future conduct of the appeal.

4. It is necessary to say a little more about the circumstances in which Master Venne made his order. The details are set out in a witness statement made by a director of the Containerised Storage Company, Mr Todd. His witness statement also exhibits the relevant correspondence between Mr Todd and the solicitors, who were instructed at a later date to appear for the company, and also some correspondence with counsel who was instructed and with the Civil Appeals Office.

5. What the statement of Mr Todd shows, and this is borne out by the correspondence, is that there was a long history from the autumn of 2002 relating to the requirements of the Court of Appeal for the lodging of a bundle of documents. The initial deadline was 14th November 2002. An extension was granted. It expired on 3rd December 2002. A further extension of time for lodging the bundles expired on 3rd February 2003. On 26th February 2003 a direction was issued by the Master of the Civil Appeals Office to set the appeal down in the list for dismissal. A hearing date was fixed for 12th March 2003. An unless order was made requiring the bundles to be lodged by 26th March 2003. That was not complied with. I will return in a moment to the circumstances of the non-compliance.

6. The subsequent history of the matter is that the matter was again listed for dismissal after a number of further extensions had been granted to 11th April 2003, to 1st May 2003 and to 15th May 2003. The hearing of the dismissal list took place on 4th June 2003. Master Venne made an order, in the absence of anyone attending on behalf of the Containerised Storage Company Ltd. On the matter having been listed for Containerised Storage Company Ltd to show cause why its application for permission to appeal should not be dismissed for failure to comply with the court's directions, Master Venne made this order:

"IT IS ORDERED THAT unless within 7 days, that is by 4.30 pm on 11th June 2003, a bundle is filed which fully complies with the Court's requirements, save as to the inclusion of the transcript of evidence and counsel's skeleton argument, then this application will stand dismissed, without further order but with no order as to costs."

The order was not complied with and so the application for permission to appeal was struck out and dismissed.

7. I should mention that at the hearing of the action before Judge Cooke Mr Lewison QC had represented the claimant, Generay Ltd. Mr Todd in person had presented the case for Containerised Storage Company Ltd. He was still acting for the company when the notice of appeal was lodged and when early applications were made for extensions of time.

8. It appears, however, from his witness statement and from the exhibited documents that by about the middle of March 2003 he had instructed a firm of solicitors, McGoldricks, to act for the company in relation to the application for permission to appeal. The correspondence shows that McGoldricks gave notice of acting on 27th March 2003 and that they requested a 14-day extension to 11th April 2003 for the lodging of the bundles.

9. It also appears from the correspondence that in about the middle of March 2003 McGoldricks had instructed a Mr Adrian Davies of counsel to act in the matter. It appears from instructions sent to him, dated 10th April 2003, that counsel was instructed to prepare the necessary bundle and to have it ready within the deadline, which was erroneously referred to as 15th April 2003 when in fact it was 11th April.

10. What then appears is that, although the application for permission to appeal was dismissed by virtue of non-compliance with Master Venne's order of 4th June 2003, Mr Todd was not informed of this, either by McGoldricks or by counsel, to whom he sent an e-mail in July 2003 saying that he was a little in the dark, not having heard from McGoldricks since April, but assumed that matters continued to move forward. That impression was confirmed to Mr Todd in letters sent by McGoldricks to him. It appears from a letter dated 15th September 2003, sent by Mr Ted Goodman of McGoldricks to Mr Todd, that Mr Todd was given the impression that the matter was proceeding. Nothing was said about the fact that, by virtue of Master Venne's order, the application had been dismissed. In that letter Mr Goodman wrote to Mr Todd as follows:

"I am writing to confirm that you have instructed this firm to act on your behalf in this matter.

Assuming that the matter proceeds smoothly, I expect it to be completed, up to and including the final Hearing, by 2005."

11. He referred to discussions about whether legal aid was available, and confirmed that Mr Todd had instructed them not apply for legal aid. It then referred to the terms of business.

12. Mr Todd in fact did not discover until the early months of 2004 what the true position was. He had been kept in the dark by solicitors and counsel about what had in fact been the fate of his application for permission.

13. I am satisfied, on the basis of Mr Todd's statement and the exhibited documents, that the delays which occurred in this matter from March onwards were not due to his personal fault. There had been earlier delays when he was dealing with the matter in person, but it was the delays which occurred from March onwards that led to the "unless order" that was not complied with and to the dismissal of the application for permission to appeal. In those circumstances, although the delays have been very serious, they are explicable and they were not of the applicant's making. In those circumstances, it seems to me that they should not be held against the Containerised Storage Company Ltd on this application to reinstate.

14. I have been referred to a transcript of the judgment of Morritt LJ in Woolwich Building Society v Raja , 30th July 1999. Morritt LJ's judgment was agreed with by Thorpe LJ and Sir Oliver Popplewell. That was a case where there had been serious delays not of the client's making in relation to compliance with the requirements of the Court of Appeal for the lodging the bundles. In the penultimate page of the transcript Morritt LJ said this:

"It is perfectly true, as counsel for the building society emphasised, that Mr Raja is guilty of delay, but it was by no means all of his making. First, Compton & Co came on the scene in September 1996 at a time when bundles had been lodged in the previous April, but Mr Raja's solicitors had ceased to practice due to the intervention of the Law Society. They made repeated requests for extensions from 26 September 1996 to 25 April 1997 but they were never dealt with. In the circumstances then prevailing it is more probable than not that had the requests been processed as they should have been they would have been granted. From July to December 1997 there was little point in doing anything as the threat of being made a vexatious litigant was hanging over Mr Raja's head. By 23 March 1998 the bundles as lodged had been approved by the court, though it is true the evidence suggests that Mr Raja's advisers had not done what was required until the very last moment."

Morritt LJ went on:

"Of course the bundles should have been properly dealt with long before March 1998, but I do not see that the delay is such as to make it more difficult to deal with the application or with any subsequent appeal that may be brought nor do I see any prejudice to the building society in having the application for an extension of time or any subsequent application for leave or the appeal, if any, dealt with on their respective merits. Of course it would be cheaper and more convenient for the building society to dispose of Mr Raja's objections to the judgment they obtained from Robert Walker J by maintaining the order of 10 July 1996, but, in my view, that is not prejudice of the type this court should entertain."

15. The passage cited also relied upon to deal with the prejudice point, which has been raised by the solicitors acting for Generay Ltd, who were served with notice of the application to reinstate and the supporting evidence and skeleton argument. Two letters have been written by BP Collins, who act for Generay Ltd, stating that they object to the reinstatement of the application for permission. The points raised by them are concerned with the question of prejudice, which they say their clients have suffered by virtue of the delay. The two letters are dated 13th May 2004 and 29th June 2004. They ask that the matters stated in those letters be drawn to my attention.

16. The main point taken in both letters in relation to prejudice is that, by virtue of the delay, their client has been deprived of the benefit of advice and representation from Mr Lewison QC, who had represented them at the trial, but was not now available to advise and represent them on account of his elevation to the High Court Bench in April 2003. What they say is this. They believe their client will suffer prejudice if permission to appeal out of time is granted in favour of the proposed appellants. The proposed appellants' solicitors have misunderstood the point they are making, which is Mr Lewison QC (as he then was) would have been able to provide detailed advice on the merits of the case, if their clients had appealed before Mr Lewison's elevation to the Bench in April 2003. The importance of this is that, because the appellants' appeal is in large part founded on an argument was which was raised and considered in detail by Mr Lewison during the trial, the advice would have been based on Mr Lewison's personal knowledge of the way the point had been put to the court at trial.

17. They then set out the chronology of events relating to the appeal to illustrate the nature of the prejudice which had been suffered. That chronology covers in a briefer form dates which I have already given earlier in my judgment. They referred to the delays being unexplained in respect of part of the time, and say that some of those delays were caused by Mr Todd. They refer to the delays down to the time when he instructed McGoldricks in the spring of 2003, and they refer to the further delays which had occurred subsequently.

18. In my judgment, the prejudice which is raised by BP Collins in their two letters is not a prejudice of the kind or degree that should prevent Containerised Storage Company Ltd from having their application for permission reinstated or granted. It is, of course, unfortunate if counsel who has represented and advised a party at an earlier stage, such as at the trial, is not available on the appeal. But that is a risk which every litigant runs, whether there is delay in a case or not. Counsel may become unavailable for all sorts of reasons, whether there is delay or not. There may be sudden illness. There may be prior commitments he has to other clients. Having to change counsel is one of the risks inherent in litigation. In my view the fact that the Containerised Storage Company Ltd will no longer have the services of Mr Lewison does not count as prejudice, so as to disable the grant of permission to appeal or the reinstatement of the application.

19. I have had the benefit of skeleton arguments from two leading counsel on behalf of the Containerised Storage Company Ltd. The skeleton argument submitted initially was prepared by Mr Paul Morgan QC and concentrated on the merits of the appeal, submitting that it was appropriate to grant permission as well as to reinstate the application.

20. Mr Fetherstonhaugh QC has put in a further skeleton argument which deals in more detail with the application to reinstate. As already indicated, I accept the submissions which have been made as to the explanations for the delay which occurred in this case and led to the dismissal of the application for permission. I agree with the submissions which have been made in response to the questions of prejudice raised by Generay's solicitors.

21. As to the merits of the appeal, I have considered those. In particular, I have considered the draft amended form of the notice of appeal. The appellant's notice, as originally put in by Mr Todd, set out numerous grounds which were not impressive on their merits. With the benefit of counsel's advice, fresh grounds of appeal have been prepared which are to be found on page 12 of the main bundle and are elaborated on in more detail in the skeleton argument.

22. I am satisfied that there is a sufficient prospect of the appeal succeeding to justify the grant of permission. I do not see the need to put off considering the merits of the application for permission to a later time. I have had to read all the papers in this case in order to deal with the application for reinstatement. Applications for permission to appeal are made ex parte and I am justified in dealing with those today, even though it may not have been clear from the form of application that the application for permission to appeal was going to be heard at the same time as the application to reinstate. To put off the application for permission to a further ex parte hearing would simply be to add unnecessarily to the costs.

23. So to sum up, while expressing concern at the serious delays that there have been in getting this appeal on the road, I am satisfied that they were not the fault of Mr Todd personally and therefore not of his company, that this is a case where the serious delays have been satisfactorily explained and there has been no relevant prejudice to the respondent, Generay Ltd, by reason of the delay.

24. For those reasons, I will make the following orders. First, I will reinstate the application for permission which was dismissed in consequence of Master Venne's order of 4th June 2003. Second, I will grant permission to Containerised Storage Company Ltd to appeal against the judgment of His Honour Judge Roger Cooke of 7th October 2002.

ORDER: Application to reinstate the application for permission to appeal granted; permission to appeal granted; permission granted to amend the appellant's notice; time estimate for the appeal of one day; no formal order for expedition, but in view of the delays which have already occurred the appeal should be heard as soon as possible.

(Order not part of approved judgment)