Keane v Green

LORD JUSTICE MAY: This is an application which Mr Keane makes in person for permission to appeal against a decision of His Honour Judge Simpson, sitting in the Mayor's and City of London Court, on 13 August 2004.

The application is in relation to a second appeal. The court therefore has to proceed under Rule 52.13 of the Civil Procedure Rules which provides:

I have decided, with considerable hesitation, but nevertheless, in circumstances which I will briefly describe, that there is some other compelling reason for the Court of Appeal to hear this proposed appeal. Lord Justice Buxton considered the matter on paper and he came to the opposite view, writing that the appeal had no reasonable prospect of success and saying that the case comes nowhere near to fulfilling the requirement for a second appeal. With hesitation, I have reached a different view.

Mr Keane brought these proceedings by a claim form which gave brief details of his claim. They were in these terms:

Particulars of claim were included in this claim form which, with certain additions, say much the same thing. The essential point for present purposes is that Mr Keane was saying that the defendant stole his three shop counters. He obtained judgment in default of defence.

On 20 January 2004 there was an application by the defendant Mr Green to set aside that judgment. I believe that the ground for doing so was that Mr Green said he had not been served with the proceedings. That does not matter very much for present purposes. The district judge set aside the judgment and gave the defendant permission to defend the claim. Counsel for the defendant described to the district judge what the defendant's case was. It is obvious that the true underlying question in this case is likely to be a conflict of evidence between Mr Keane and representatives of the defendant on the other hand.

During the course of that hearing questions were raised as to whether Mr Keane's particulars of claim were sufficient. The district judge, as I agree with Judge Simpson, on a fair reading of that transcript, suggested that it was probably a good idea to amend the particulars of claim, but gave the clear impression that it was not obligatory for Mr Keane to do so. He certainly came away from that hearing with the idea that he did not necessarily have to improve his particulars of claim.

What has bedevilled this case ever since is a number of matters. They include a view subsequently taken by the same district judge that theft is not a civil cause of action and a view that unless the particulars of claim were amended to plead a recognisable civil cause of action the claim could not proceed.

What subsequently happened was this. Judgment in default having been set aside and the district judge having given Mr Keane permission to amend his particulars of claim, Mr Keane did not amend his particulars of claim, understanding that he did not have to do so. An application was made on behalf of the defendant to strike out the claim on the basis that it disclosed no cause of action or was an abuse of the court process. That application was dated 25 May 2004. There were two perceived difficulties about Mr Keane's particulars of claim. The first was that he appeared to be alleging theft which, it was represented, did not amount to a civil cause of action. The second problem, upon which no one seems to have concentrated, was that, however he may have framed his cause of action, he had not particularised his claim so as to tell the defendant and the court exactly what his account was. He had briefly said that the defendant had stolen his three shop counters but had not described how that came about.

The hearing of the defendant's application to strike out Mr Keane's particulars of claim occurred on 6 July 2004 before the same district judge. The hearing took a most unfortunate course. The district judge took a rather different view in July to the view she had expressed in January as to the potential adequacy of Mr Keane's claim and its particulars. She said (on page 3 of the transcript):

Having left court, the district judge reckoned that she had not been addressed in any substance by him. She wrote, for the record, that Mr Keane had declined to make any representations to the court as to why she should not strike out the claim, and she did so.

Mr Keane, through solicitors, then applied for permission to appeal against that order. At about that time, shortly after the second district judge hearing, solicitors drafted amended particulars of claim. The amended particulars of claim are signed under a statement of truth by Mr Keane himself and they are dated 20 July 2004. Those amended particulars of claim, as I read them, are a perfectly adequate and particularised account of his claim. Insofar as it is a question of pleading a cause of action, that amendment pleads -

The appeal was heard by Judge Simpson in the Mayor's and City of London Court on 13 August 2004. Mr Keane was represented by counsel, Miss Murphy. In advance of that hearing, Kate Walker, Mr Keane's solicitor, had, on 4 August 2004, produced a skeleton argument for the hearing of the appeal. The skeleton argument is detailed and runs to two- and-a-half pages. The first page and a bit of that skeleton argument, again, contain full and properly organised particulars of the facts upon which Mr Keane seeks to rely.

Mr Keane went along to the court on 13 August 2004, but he had what he regarded as a more pressing business commitment that day and he was not in court when the case was called on and the judge dealt with it. Another trouble was that he had not obtained, or there had not been obtained for him, a transcript of what had occurred before the district judge at the hearing in July. The matter therefore proceeded in his absence. Judge Simpson gave judgment dismissing Mr Keane's appeal. He described the circumstances of the case. He decided that on a fair reading of the transcript of the January hearing the district judge took the view - and half encouraged Mr Keane, if not more - that he need not amend his pleadings. Judge Simpson recounted how the case had come before the same district judge in July. He described the district judge as repeatedly asking Mr Keane to clarify the matter, but Mr Keane, said Judge Simpson, so lost his temper that he stormed out of the hearing.

The judge said that Mr Keane had asked for a transcript of that hearing as well as that in January because he recognised it was important, but, said the judge, inexplicably he cancelled that request. Miss Murphy, who was there to represent Mr Keane, was without Mr Keane and without solicitors so it appears, did her best no doubt without other support. At first, she was content to deal with this appeal without a transcript but half-way through asked for an adjournment. The judge said, on hearing about the cancellation of the request for the transcript, he declined that request for an adjournment. The judge referred to the note on the file which the district judge had made, that the claimant Mr Keane had declined to make representations as to why she should not strike out the claim. There seemed to have been heated argument without anything relevant being said, and that Mr Keane had not made any submissions relevant to the issue. The judge said that must mean that he did not submit he had been misled by what was said in January; he did not submit that he had been half encouraged not to amend. The transcript this court now has of the hearing in July shows that to be wrong.

It is hardly to be a criticism of Judge Simpson that he drew the inference that he did when Mr Keane had not got a transcript into court to show what had happened and when Mr Keane himself was not in court to put the judge right. Nevertheless the judge's judgment was based to a large extent, I think, on that mistake. The judge regarded the district judge as having been in error in her view of the original pleading and also in error in her indication that Mr Keane did not need to amend. But the error, he said, was cured on the second occasion when Mr Keane made no submission relevant to the issue. Upon that note of Judge Simpson's judgment the appeal was dismissed.

It seems to me, but I am not here to make any final decision on the question, that the district judge's view in January was a proper one and, if a comparison is to be made, a more correct view than the view the judge took in August; by which I mean this, of course it is correct that theft is a criminal terminology and there is no civil cause of action to which one attaches the label "theft". But that is, to an extent, a legal technicality because there is, as every lawyer knows, a civil cause of action called conversion. There is also a civil cause of action called detinue and, in appropriate circumstances, as appears to have been considered appropriate by the solicitors instructed by Mr Keane, there is cause of action for breach of duties by a bailee, and so forth.

I think there is considerable force in Mr Keane's general point that, as a layman, he wrote down essentially what he wanted to form the basis of his claim. He may have used the word "stole" or "theft", but the court, he suggests, should not be in the business of throwing such claims out simply on legal technicalities. My view is that the more important deficiency, if deficiency it be, of Mr Keane's original formulation of his claim, was that it lacked proper particularity, not that it did not plead a recognisable cause of action.

I think it is important that by the time Judge Simpson came to deal with this appeal, as a matter of fact, Mr Keane's claim had been properly and fully formulated in no less than two documents. It had been properly formulated in the proposed amendment of particulars of claim and it had been properly formulated in the skeleton argument prepared by Kate Walker for the hearing of the appeal. I do not know - and Mr Keane cannot tell me because he was not there - whether Judge Simpson had either of those documents. It may be that he did not have the skeleton argument because the solicitor was not there to support Miss Murphy in court. It seems to me more likely than not - but it is only looking at the papers and doing the best I can - that the court had the proposed amended particulars of claim. They have a date which ante-dates Judge Marr-Johnson giving permission to appeal. I think it looks as if Judge Marr-Johnson had those proposed amendments. However that may be, Judge Simpson makes no mention at all of either of the documents containing proper particulars. If it is correct that the court had one at least of those documents, the position before Judge Simpson was that - although originally there were things to be said to the effect that Mr Keane's original claim was not properly particularised - there was proper particularity available to the court by the date of this appeal.

In addition, the judge's decision - through no fault of his own and, arguably, on Mr Keane's own fault - proceeded on a misunderstanding of what had happened at the July hearing. Mr Keane had, at the July hearing, represented continuously to the district judge the view that she had expressed to him as to the adequacy of his claim and the need to amend it in January.

In those circumstances I have to ask whether there is a compelling reason for this court to hear the appeal. It may turn out that the court had neither of these documents and the basis on which I am proceeding may be wrong. But it does seem to me that there is at least a properly arguable case that at the second hearing the district judge, by insisting on the technicality relating to the cause of action, was arguably wrong. What was needed really was proper particulars.

I have to take account of the fact that Mr Keane behaved extremely badly on the July occasion, but he seems to have been exasperated by the what he regarded as the district judge's unrealistic insistence on a pedantic cause of action point. He reckoned that he had adequately stated what his case was and that he had been encouraged to this by what the district judge had said in January. I have to take account also of the fact that Mr Keane failed to get a transcript of the July hearing and was not present when the appeal was called on. Judge Simpson cannot be criticised for taking the view that he did about the transcript. The fact remains his assumption about Mr Keane not relying on what he had been told in January was wrong. Further, as I have said, Mr Keane's solicitors had by then properly particularised the claim in both the amended particulars and the skeleton argument for the appeal.

I have reached the conclusion, not without hesitation, that there is here a compelling reason for the court to hear the appeal. I think arguably there may have been (and this is not a decision) a mishap of justice here. I also think that Mr Keane has an underlying point when he submits that lay people without a solicitor or counsel should not be frustrated in what he regards, at least, as a simple case for the sake of a few words in a document. They should, he says, be entitled to a day in court. His argument is that people without funds should be able to have their day in court without what he would regard as clever legal arguments. I think there is something in that in the present case.

For the reasons which I have tried to explain, I have reached the conclusion that this is just a case where it is proper and right that permission should be given for a second appeal.

I should say this also that I have explained to Mr Keane the strong possibility - again, this is not a decision - that if he succeeds on his appeal, which he may not do, he may nevertheless be ordered to pay the costs of the appeal because of the history and circumstances in which this appeal has come about for which, to some significant extent, he is himself responsible. I have pointed out to him, and I am sure he understands, that those costs, if he has to pay them, will be significant in comparison to the amount of money concerned in issue in this case.

I am sorry that I have taken rather a long time to say all that, but I have done so for the benefit of any court that subsequently hears this appeal.

Mr Keane, you may have permission. Costs are reserved to the court that hears the appeal.