Piper v Wilson

LORD JUSTICE NEUBERGER: This is an application for permission to appeal brought by Mr Terence Piper, who was the claimant in the proceedings against Mr and Mrs Wilson, on the basis of work he said he carried out to their house for which he has not properly been paid. The claim came before Ms Recorder Eady and she gave judgment on 22nd November 2004.

I must confess that when I came into court, I was anticipating probably dismissing this application on the basis that even though Mr Piper may have felt that the decision was, in a number of respects, wrong, it seemed to me that it was a full and careful judgment which resolved disputes of fact and assessment in circumstances where the Judge's task was difficult, and that she was entitled to reach the conclusion that she did.

In fairness to the defendants, Mr and Mrs Wilson, who are not here and not represented, and as a sort of warning to Mr Piper, I should say that there is a real possibility that that will indeed be my ultimate view. However, having heard Mr Piper's submissions, and it is fair to him to record, having cut him short, although he has been on his feet for more than half an hour, I have formed the view that there is sufficient in this application for it to be simply unjust for me to take the course that I anticipated taking, namely to dismiss it. Equally, however, I am sufficiently concerned that it may be wrong not to grant permission to appeal, that I have decided to order that this application be heard inter partes, in other words, that this application for permission to appeal be adjourned so that it can be heard with Mr and Mrs Wilson and/or their representatives, being here. Because this is not a large case and because one wants to keep costs to a minimum, I want to make two points about that before I come to my brief reasons.

First, if Mr and Mrs Wilson and their advisers decide that they would rather make written submissions and not incur the expense of attending court, they are quite entitled to do so, but if they take that course, they must ensure that their written submissions are with Mr Piper and with me at least a week before the hearing is resumed. Further to that, if they choose to attend court, I would welcome their written submissions in advance anyway, in which case, written submissions should be with Mr Piper and me at least a week before the hearing.

Secondly, if Mr and Mrs Wilson choose to attend the resumed application, either on their own or with legal representatives, my inclination would be to say that the application for permission to appeal should be heard separately from the appeal. If the application fails it will cost more if the parties have prepared for the full appeal.

I turn, then, to my reasons for taking the course I have indicated. Mr Piper has a number of complaints about the judgment which, at the moment, I am not sure I am very impressed by, on the face of it. As I say, there may be a number of imperfections in the evidence before the Judge, but she had to do the best she could on the evidence.

The point which concerns me is this. Mr Piper says that Mr Cox, the expert called on behalf of the Wilsons, whose evidence was largely accepted (see paragraph 14 of the judgment), gave his evidence as to the value and the nature of the work done by reference to a schedule which it was impossible to cost because it was so precise, and he did not take into account a much fuller schedule prepared around December 2002, January 2003. (I hesitate to give the page number because the page numbers, through no fault of Mr Piper's, have become unclear, but it is what he calls in the introduction to his helpful skeleton argument the second schedule.) He says that that second schedule was not challenged. He believes that Mr and Mrs Wilson generally agreed it and, indeed, Mr and Mrs Wilson's solicitors tried to persuade District Judge Gold to let Mr Cox's evidence be amended to take the contents of the second schedule into account. He says that the District Judge's decision was wrong because it meant that Mr Cox's evidence was very unsatisfactory before the Judge.

He, Mr Piper, did not put the contents of the second schedule to Mr Cox, although it would seem from the judgment (see paragraph 49) that he did put works that Mr Cox did not consider to Mr Cox and Mr Cox rejected them. While it might be said that Mr Piper should have put the contents of schedule 2 to Mr Cox, one has to bear in mind that Mr Piper was a litigant in person and the Judge knew of the existence of schedule 2, as did the representatives of Mr and Mrs Wilson. It might therefore be said to have been generally unsatisfactory and simply unfair on Mr Piper in terms of the way the case was resolved, for it to have proceeded on this basis.

I may not have put the point entirely clearly. I am going to ask Mr Piper in a moment if I have, because it is important that the way he puts case is clear to the Wilsons so they know what case they have to meet. I am sufficiently concerned about this to feel that it would be wrong, as I have mentioned, simply to dismiss this application, although it may be that Mr and Mrs Wilson, through written or oral submissions, will persuade me there is nothing in this point.

Mr Piper has what he calls a broader allegation of general unfairness on the part of the Judge. I have not let him develop that aspect very much in the light of my view as to the proper course to take, but it is right to say, on the basis of the written submissions, my reading of the judgment and his brief oral submissions on the topic, that I am pretty unimpressed by that aspect, but because he has not had the opportunity to develop it, it would be unfair of me to dispose of it now. On that basis, I propose to adjourn this application for it to be heard inter partes, along the lines I have indicated. A copy of this judgment should be provided at public expense to Mr Piper and it should be sent to Mr and Mrs Wilson's solicitors. I propose to reserve the costs of today.

Mr Piper, have I misrepresented your position? If I have, tell me now because what happens, just so you know, is that I get a copy of what I have said and I tidy it up a bit so it is a bit clearer. So if there is anything I have said wrong, please correct me.

MR PIPER: No, I think your Lordship was very succinct. Thank you, your Lordship.

LORD JUSTICE NEUBERGER: I am grateful. As I said, I do not want to raise your hopes because there is a real prospect that I, or whoever decides the application, will decide against you when they have heard what the Wilsons have got to say, but I do think that something may have gone wrong in a way that was unfair and you should have the right for that to be investigated.

MR PIPER: Could your Lordship just tell me, what do I have to do next. Do I send a bundle and the skeleton argument to the other side?

LORD JUSTICE NEUBERGER: That is a very good point. You can ring up the other side, if you want to, to tell them what has happened today. You can say that I will get a copy of the judgment. I want it expedited, please. That means that it will be produced to me pretty quickly. I will tidy it up so it looks a bit better and it will then get sent to you and to the Wilsons' solicitors. What I would like you to do at that point is give them the documents you have given me.

MR PIPER: The bundle?

LORD JUSTICE NEUBERGER: The bundle.

MR PIPER: Lastly, your Honour, there will be no disposal of bundles, will there?

LORD JUSTICE NEUBERGER: No, I have mucked about with the bundle a bit but I will have to put it back together.

MR PIPER: Thank you for your wisdom, your Honour. You have made it very easy for me.

LORD JUSTICE NEUBERGER: You are very kind.

MR PIPER: You have been very kind.