Cook v Bates & Anor

J U D G M E N T

1. LADY JUSTICE ARDEN: The time is now 2.45 pm. This appeal was listed for 2.00 pm. The matter was due to be heard in London, but it was noted that in November Mr Bates had written to the court explaining that he had difficulties in that due to ill health he was confined to a wheelchair, and also because he had not been able to obtain pro bono representation from the Citizens Advice Bureau in the Royal Courts of Justice.

2. When that was appreciated at the end of last week, the Civil Appeals Office took steps to arrange this video conference at 2.00 pm today. The respondents agreed that they too would attend at Middlesborough County Court in order that the hearing could take place by video conference. The court is most grateful to the officers at the Middlesborough County Court for making that facility available.

3. This hearing was fixed for the convenience of Mr Bates. It was my understanding that the Civil Appeals Office spoke to Mr Bates personally at the end of last week to make sure this arrangement was convenient to him. At 12.18 pm on 24 January 2005 Mr Bates sent an e-mail to the Civil Appeals Office asking for an adjournment of the hearings because he had not been able to contact the person at the Citizens' Advice Bureau who was dealing with this case. He did not know the name of his legal representative and needed to speak to him. He also said he needed an adjournment because he had not been able to obtain detailed plans of dimensions. I will expand on that point later in this judgment. Mr Bates also apologised for requesting more time. He said that he needed more help and a legal representative in court with him. The hearings was fixed for 2 o'clock.

4. The court officers at the Middlesborough County Court and in the Royal Courts of Justice have sought to contact Mr Bates but to no avail. Mr Bates has not arrived at the court offices to apply for the adjournment in person and to support his e-mail. Mr Bates is not entitled as of right to legal representation. He contacted the Citizens Advice Bureau, who arrange pro bono representation if possible. Clearly they have not been able to do so in this case. Mr Bates knew that back in November 2004.

5. So far as the filed plan is concerned, at the end of the hearing before Jonathan Parker LJ on 26 November 2004 when he gave permission to appeal, he said that an agreed scale plan would be helpful, but there was certainly no direction to that effect. Mr Bates has had plenty of time to obtain a scale plan if one was required. An appeal is not a rehearing of all the evidence and new evidence is only admitted in exceptional circumstances. Mr Bates' case is that the plan attached to the transfer to Mrs Cooks' predecessor was falsified, but that matter was not pursued at trial and forms no part of the judgment of the learned recorder.

6. In those circumstances, while, as Jonathan Parker LJ said it would have been helpful to have an agreed scale plan, I cannot see that that plan was an essential for today's purposes.

7. Mr Bates has not attended today. It may be that he did not attend in the hope that the court would simply adjourn the matter so that he would have the benefit of more time. This court must also take into account that there have been previous delays in this litigation. Mr Bates was debarred from defending the action because of his failure to file a defence. That bar was lifted and he filed a defence, although it was in very basic terms. When it came to asking for permission to appeal, he applied 67 days late. There was an adjournment on 8 November 2004 when he did not attend at the time and place fixed. I do not know why he did not attend on that occasion. He came before Jonathan Parker LJ on 26 November 2004 when Jonathan Parker LJ referred to the fact of the delay but said that he would give permission in exceptional circumstances.

8. There has been plenty of time for Mr Bates to prepare his case. After Christmas he served his appellant's bundle on the respondents. They saw for the first time that he was proposing to rely on two statements, one from Mr Horseman and one from Mr Hall. They then approached those witnesses themselves and obtained statements which show that those witnesses did not accept the statements put in on their behalf as being an accurate representation of their evidence. Mr Horseman also expressed doubts as to whether the signature on the statement attributed to him was his own signature.

9. In preparation for this appeal, the respondents issued a notice of application to set aside the permission given by Jonathan Parker LJ and a notice to serve and adduce two further statements: the statements of Mr Horseman and Mr Hall. It is their submission that the statements produced by Mrs Bates and purporting to be from Mr Horseman and Mr Hall were at least misleading. If the matter had been effective today,they would have submitted that it is unlikely that the court would have given permission to appeal had it known those statements were not in fact the true representation of the evidence of those witnesses.

10. In the circumstances Mr John Constable, who appears for Miss Cook, the respondent, seeks an order that this appeal be dismissed. He points out, as must be the case, that this appeal been pending for several months. It is now 11 months since the judge handed down his judgment. It has created personal difficulties for Miss Cook as she cannot sell her property.

11. Taking into account all the circumstances of this appeal, of this action and of the submissions made by Mr Constable, I am satisfied that this is a case in which the court should dismiss the appeal here and now leaving it to Mr Bates to take such further steps as he thinks fit in the circumstances.

12. MR JUSTICE MUNBY: I agree with my Lady. Jonathan Parker LJ, when giving permission to appeal, said that the litigation had been bedevilled by delay on the part of the appellants. Moreover, he indicated that he was taking an exceptional course in granting them the necessary extension of time to pursue their appeal. Mr Bates, having elected not to attend today's hearing, seeks further to delay the proceedings by seeking an adjournment on grounds which do not, in my judgment, justify an adjournment.

13. Enough is enough. There has been more than enough delay in this litigation. I am satisfied that further delay will cause Miss Cook serious prejudice. For those reasons, in addition to the reasons given by my Lady, I agree that this appeal should be dismissed.

Order: Appeal dismissed. transcript to be supplied to Mr Bates at public expense. Appellant to pay the respondent's costs summarily assessed in the sum of £2,750 plus VAT (solicitors costs) and counsel's fees in the sum of £1,000 plus VAT, all to be paid within 21 days.