Capital Bank Plc v Soor

J U D G M E N T

1. LORD JUSTICE PILL: Lord Justice Lloyd will give the first judgment.

2. LORD JUSTICE LLOYD: This hearing is concerned with an application for permission to appeal on the part of Mr Harminder Soor, who seeks to appeal against a judgment against him, given in the Central London County Court by His Honour Judge Knight QC on 17th December 2004. The judgment for the claimant, Capital Bank Plc, was for £35,189.57 and costs. By the same order the judge dismissed an application by Mr Soor to vary a consent order which had been made in the same proceedings on 14th January 2004.

3. The present hearing was directed by Waller LJ, following a hearing without notice to the respondent on 27th June 2005. He directed that notice be given to the respondent and that the matter be listed for permission to appeal, with the appeal to follow if permission were granted. There is also an application for an extension of time, but no point turns on that. If we were minded to grant permission to appeal, we would no doubt grant an extension of time as well.

4. The claimant sued Mr Soor on guarantees given by him of the liabilities of a company called Euro Autos Ltd, which in the particulars of claim were put at about £70,000 (that is to say, the liability under the guarantees), and the claimant had sued Euro Autos Ltd as well in a separate action for a slightly larger sum.

5. The defendant defended the claim against him. The case came to trial and settled at trial, and it was on that occasion that the consent order was made in Tomlin form on 14th January 2004. Pursuant to the terms of that order, the defendant was obliged to pay £10,000 each month to the claimant, on a particular date in the month, for six months, starting in January. If any instalment was unpaid or was paid late, the whole sum was to fall due and in addition the defendant would be liable for £15,189.57 in respect of costs. If the defendant had paid all six instalments on time, he would have escaped that liability for costs.

6. In fact the defendant paid four instalments, three of them slightly late, but not the last two. On 7th July 2004 the claimant applied for judgment for £35,189.57, i.e. the costs and the two unpaid instalments. The defendant responded by applying to vary the terms of the consent order, in an endeavour to show that instead of £20,000 only £1,680.30 was due from him under the guarantees, having regard to what he had paid.

7. The defendant was ordered to pay £10,000 into court, and directions for evidence were given in respect of the hearing of the respective applications that each party had made. Later further directions were given extending time for the payment and for evidence, and ultimately the defendant did make the payment into court of £10,000 required of him. He did not, on the other hand, file any witness statement by way of evidence either in support of his own application or in answer to that of the claimant. But he did provide some documents in which, and by reference to which, he asserted that there were nine payments made to the credit of the Euro Autos Ltd account with the claimant which had not been brought into account by the claimant in calculating the liability for which he was liable as guarantor.

8. The claimant accepts that at the time of the consent order there was a collateral agreement by which it stood. This was to the effect that it would allow credit against the settlement figure for any payments which: (a) the defendant could prove had been remitted to the claimant in respect of the five finance agreements between the claimant and Euro Autos Ltd that were relevant to the proceedings; (b) were still with the claimant (i.e. had not been returned); and (c) had not been taken into account in the calculations.

9. The point I mention at (a) about the five finance agreements is important, because there was at least one other finance agreement between the claimant and Euro Autos Ltd, and there were other finance agreements between either Euro Autos Ltd or other related companies, on the one hand, and either Capital Bank itself, or other companies related to it in one way or another, on the other hand.

10. The claimant's solicitors pressed the defendant for some time for any witness statement he intended to rely on and further details and proof as to the payments that he set up as being due to be taken into account and not properly credited. This process started with an e-mail from the claimant's solicitors, Messrs Walker Morris, to Mr Soor -- who I should have said does and has at all times appeared in person. That e-mail is dated 29th September 2004 and, among other things, asks for a copy of the front and reverse of two cheques, the numbers of which were given by Mr Soor and which he contended had been paid to Capital Bank and not taken into account.

11. That was the start of the process whereby the claimant pressed Mr Soor for details of and verification of his contentions, but these efforts on the part of the claimant were unsuccessful. The time specified in the directions for evidence had gone by. The bank's solicitors gave him until 1st December to put in evidence and to provide the further details. When he did not do so, the bank, admittedly belatedly in terms of the court's directions, put in a witness statement, prepared by Mr Sandford of their solicitors, in support of the claimant's application for judgment and in opposition to the defendant's application to vary the consent order. By that time, there were nine items relied upon by Mr Soor which he contended had been paid to Capital Bank in respect of Euro Autos Ltd's liabilities and had not been taken into account in the calculation of the settlement figure.

12. By 2nd December, Capital Bank, through Mr Sandford, was able to explain in evidence that six of the nine items had been identified and traced, and he was able to demonstrate that they related to different agreements and had been taken into account in the calculations relevant to those agreements, but they were therefore not relevant to the subject matter of the claim or of the liability under the consent order.

13. As regards the other three items, the claimant had not been able to identify them because the defendant had not provided enough material with which the claimant could do so, nor had he provided enough corroborating or supporting evidence to show that they did relate to any of the five relevant agreements.

14. On that evidence the matter came before Judge Knight on 17th December 2004. It appears that Mr Soor was rather minded to complain that the claimant's evidence had been put in late, in terms of the timetable prescribed by the court order. That is perfectly true, but it seems clear that he had had Mr Sandford's witness statement and its exhibits for some time, and of course as regards the three untraced credits, Mr Sandford had been pressing Mr Soor for details and supporting evidence since the end of September. So as Mr Barker for the bank submits, it can hardly have been surprising for Mr Soor that the same point was taken in the witness statement.

15. In his judgment, the judge proceeded on the basis that the consent order was clear and was in the terms in which it had been agreed, but that it was subject to the collateral agreement that I have mentioned, which was openly admitted and accepted by the claimant. On that basis he said that there was no ground for setting aside or varying the terms of the consent order.

16. As regards the disputed credits, the judge found, accepting Mr Sandford's evidence, that the six items that had been identified and traced were irrelevant to the matter because they were not pertinent to the five finance agreements which were the subject of the proceedings.

17. As regards the other three, which were between them fairly substantial in amount, the judge dealt with those by saying that because Mr Soor had not enabled the claimant to identify and locate these by providing enough information, including in particular copies of the cheques by which two of the payments were made, he was unable to accept Mr Soor's submission that these sums ought to have been brought into credit against the liability under the consent order, and he therefore gave judgment for the claimant as asked. That was on 17th December.

18. Mr Soor put in an appellant's notice on 21st January. He says -- and although the judge's order does not record it, I do not think it is in doubt -- that the judge had extended his time for appealing to 14th January. The appellant's notice was therefore some seven days' late. Although the delay is not plausibly explained, it is a minor matter in the context.

19. The defendant in his appellant's notice complains of the lateness of the claimant's evidence, and contends that the judge was wrong to find that the claimant had done as much as it should have done to identify and trace these three payments. There is nothing at all, as it seems to me, in the point about the lateness of the evidence from the claimant. As I have explained in reciting the history of the proceedings in the County Court, Mr Soor himself was in default under the directions as to evidence because he had not put in any evidence at all formally, and such information as he provided was inadequate as regards the three now critical payments, and there would have been no fairness in any criticism of the claimant for waiting for the period that it did before putting in evidence, given that the evidence was made and no doubt served promptly more than two weeks before the hearing, and given that it did not, in respect of these three payments, raise any new point, and Mr Soor was perfectly well able to deal with it if he had wished to do so. There is equally nothing in the point about inadequacy of the efforts on the part of the claimant to trace the items, since the defendant did not provide and had not provided enough information to do so.

20. Since then the defendant has obtained and produced copies of both sides of the two cheques which represent two of the three payments. These copy cheques appear to have been obtained in the early part of this year. They were included in the appeal bundle (which I think I am right in saying was put together by the appellant by about April). They were before Waller LJ when the matter came before him as I have mentioned in June. But the appeal bundle was not served on the respondent pursuant to Waller LJ's direction until early October 2005, and that was the first time that the respondent had seen these copy cheques. There is no formal application to put those in evidence, but it would be right to treat Mr Soor as making such an application. The respondent has now been able to do what it had sought to do, and would have done if the cheques had been provided earlier, by the time of the hearing before the learned judge. The cheques are both for the same amount, but on the reverse of the cheques there is a list of accounts and a list of sums of money showing that the overall payment was to be allocated to the accounts relating to a number of different finance agreements. With that information, the claimant has been able to analyse the position, trace it and identify that some of these payments did relate to one or other of the five relevant accounts and they have indeed been brought into account in the calculation, whereas the rest related to different agreements not relevant to these proceedings.

21. Accordingly, at long last it is apparent that there is nothing in Mr Soor's contention that those two payments ought to be deducted, and have not been, in calculating the liability under the guarantees.

22. No further information has been provided as regards the one remaining payment, which was made by telegraphic transfer. Accordingly, the claimant is unable to check the contention of Mr Soor that it should have been, and has not been, credited to one or more of the five agreements. In that respect, therefore, the position today is just the same as it was before the learned judge.

23. As I say, the matter came before Waller LJ on an application without notice for permission to appeal on 27th June. We have a copy of his order and his short judgment. He noted that the bank's evidence was well out of time on the directions given by the judge. He noted that Mr Soor had told him that he had protested to the judge about the lateness of the evidence, which he said gave him no chance to obtain the duplicate cheques from the bank. Waller LJ recorded that Mr Soor had produced cheques, which appeared to have been drawn on Euro Autos Ltd's account and payable to Capital Bank, which he said he had obtained since the hearing before the judge and he clearly saw copy cheques. He recorded that some of the numbers on the back of the cheques correspond to the numbers of the hire purchase contracts in relation to which Mr Soor was being sued, which, as he said, would prima facie suggest that these were sums which Euro Autos did pay to Capital Bank in respect of these contracts, so that there might be further sums for which Mr Soor was entitled to credit. As he said, Capital Bank had not had the opportunity to respond to the evidence Mr Soor was seeking to put in. It is not clear to me whether Waller LJ was aware that Mr Soor had not shown the cheques to Capital Bank by that stage. At any rate, on that basis he adjourned the application so that the respondent could be represented, and gave the direction which results in the matter being listed to come before us today.

24. Earlier this week the court received an application for an adjournment of today's hearing on the part of Mr Soor. This was supported by a medical certificate saying that Mr Soor was suffering from hypertension and should abstain from work for two weeks. It did not in any specific way relate to whether he was fit to attend a hearing such as is taking place today.

25. That application was refused on paper on the basis that the application was not justified by the evidence in support. At that stage the court also had a letter from the respondent's solicitors opposing the adjournment and referring, among other things, to the fact that there is at least one hearing of a bankruptcy petition on the part of the bank against Mr Soor which is due to take place in the first week or so of January, and that in that respect the bank would be prejudiced if the appeal hearing were adjourned and if as a result the bankruptcy hearing had itself to be adjourned, as it might well. Those were the circumstances in which we refused the application for an adjournment.

26. Mr Soor has not attended today. Therefore we have had, first of all, to consider whether we should proceed with the matter today or in effect to adjourn it, despite having refused the application a few days ago. We heard briefly Mr James Barker, counsel for the respondent, as to the grounds on which the bank would oppose an adjournment, particularly having regard to the imminent bankruptcy hearing, but also having regard to Mr Soor's record of procrastination and lack of co-operation and lack of response to reasonable and proper requests. On this basis Mr Barker submitted that we ought to proceed today. We accepted his submission and have proceeded in the absence of Mr Soor. Of course the absence of Mr Soor from today's hearing means that he may have the opportunity, if he wishes, to apply for a rehearing at a later date.

27. But having decided that we ought not to adjourn the matter because of Mr Soor's absence, we have considered the substance of the matter by reference to the papers lodged by Mr Soor, in particular the cheques, with the assistance of what Waller LJ said having heard Mr Soor addressing him, and with the assistance of Mr Barker's skeleton argument and Mr Sandford's witness statement in opposition to the appeal.

28. For my part, I am satisfied that Mr Barker is right to submit that there is no substance in this appeal. The first point taken in the appeal was that Mr Soor had no proper opportunity to answer the claimant's evidence. I have already explained why I regard that as a point without any substance or justification at all. The second point was that the judge should not have been satisfied that the claimant had done all it could to investigate the position by the time of the hearing before him. Again, that is without any substance. Indeed, what the claimant has been able to do in response to the very late production to it of the two cheques to which that I have referred, demonstrates that if only Mr Soor had done what he should have done and obtained those cheques in, say, October 2004, the bank would have been able to do the same by the time of the hearing before the judge and the position would have been all the more plain by then. The fact remains that Mr Soor has given details of eight payments, all of which are properly accounted for, and as regards the ninth payment he has given no details and there is plainly no substance to his appeal.

29. For those reasons, it seems to me that permission to appeal ought to be refused. In those circumstances, it perhaps matters not whether or not an extension of time is given.

30. LORD JUSTICE KEENE: I agree.

31. LORD JUSTICE PILL: I also agree.

(Submissions as to costs)

32. LORD JUSTICE PILL: The application having been refused, Mr Barker, for the proposed respondent, asks for his costs. The application was listed with appeal to follow if permission was granted, so the respondent needed to be present. We were invited by Mr Barker to award costs in the respondent's favour, which we do. We are also invited to assess them summarily. A schedule has been provided and we are told was faxed to the applicant, though only yesterday. The figure claimed appears to us to be a reasonable one in the circumstances, and we assess the costs in the sum of £3,120. No question of VAT on top of that sum arises.

ORDER: Application for permission to appeal refused with costs, assessed summarily in the sum of £3,120, exclusive of VAT.

(Order not part of approved judgment)

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