London Borough of Southwark v Onayomake

The defendant, Gabriel Onayomake, appeals from the decision of Mr Recorder Widdup made in the Lambeth County Court dismissing his appeal from District Judge Zimmels who had refused to reinstate his defence and counterclaim to these proceedings for possession by the claimant council.

In granting permission for this second appeal, Carnwath LJ said that it raised an issue of general importance as to the effect in a case of this kind of the negligence of legal representatives. For reasons which I will come to, I do not think that it does raise any such issue and that the appeal can be disposed of on rather more simple grounds.

The property in question is a two-bedroomed flat on the Priory estate in Peckham which the council let on a secure tenancy to the defendant’s mother in September 1991. The defendant, then aged 19, is shown on the tenancy agreement as an authorised occupant of the flat and claims that he has lived there ever since. His mother died in January 2004 and it is his case that he has succeeded to her secure tenancy by virtue of the provisions of Sections 87 and 89 of the Housing Act 1985. The council dispute this on the ground that his mother lost her security tenure because she was in breach of the terms of a suspended possession order made in April 2000 on the grounds that she was in arrears with her rent. The defendant does not accept this but contends alternatively that the council created a new secure tenancy in favour of his mother in or after November 2002 by demanding and accepting increases in rent.

The council started these proceedings on 23 January 2006 in which the issues to which I have referred are canvassed in the pleadings which followed. All I need say about the merits of the defence and the counterclaim, which was for a declaration that the defendant has succeeded to his mother’s secure tenancy, is that it is common ground that it has a reasonable prospect of success.

When the proceedings started the defendant, who was publicly funded, was represented by local solicitors, Glazer Delmar. Ms Fiona Dixon, an employed solicitor, had the conduct of his case. On 22 March 2006 at a hearing attended by counsel for both parties District Judge Zimmels allocated the case to the fast track and gave case management directions pursuant to CPR 28.2 which provided among other things for discovery by 13 April, service of witness statements by 27 April, trial to take place during the period 3 to 21 July, and each party to file a completed pre-trial checklist no later than 10 May 2006. The council filed its checklist on 10 May although by this time there had been no discovery or service of witness statements by either party. The council's checklist asked for the dates in the earlier order to be extended by six weeks. Ms Dixon was to say that in fact the parties had already agreed to extensions of one month.

By notice dated 15 May the court of its own motion ordered the parties to attend for a case management conference at 9.30 am on 23 May. The notice gave no clue as to why this order had been made, but it subsequently transpired that District Judge Zimmels had caused it to be issued because no pre-trial checklist had been received on behalf of the defendants.

Counsel for the council, Mr Eaton, appeared before the district judge at the appointed time. No one appeared for the defendant. So, on Mr Eaton’s application, the judge struck out the defence and counterclaim and listed the claim to be heard undefended on 17 July. On 9 June the defendant’s solicitors applied to reinstate the defence and counter claim pursuant to CPR 3.9(1). The application was supported by an affidavit from Ms Dixon. She said she had not received notice of the hearing on 23 May until the day before. It was then too late to instruct counsel so she decided to attend herself. The following morning she left home expecting to arrive at court by 9.15 am, but was unexpectedly delayed on the Underground and did not get there until 9.30 am. She was then held up in a queue at the security gates by the entrance to the court and did not arrive outside the district judge’s court until some time later. She could not find the usher and did not knock on the district judge’s door because she was worried that he would be angry if he was disturbed. Later when she saw the usher she was told that the matter had been heard in her absence and that the defence and counter claim had been struck out. She learnt that Mr Eaton had appeared for the council but was not able to speak to him because he was in court on other matters.

The court’s order was not drawn up until 1 June and Ms Dixon said that she did not receive it until 6 June. But in the meantime she had tried unsuccessfully to discover from the council, the court and Mr Eaton what had actually happened in her absence on 23 May.

The application to reinstate the defence and counterclaim came before District Judge Zimmels on 17 July. By this time Ms Dixon no longer had the conduct of the defendant’s case. He was however represented by Mr Paget, of counsel. We have a transcript of the first part of the hearing when it is clear that the district judge was very critical of Ms Dixon. He had expected her to attend and described her as “a disaster”. The transcript ends with the judge saying that he accepted that strikeout would be disproportionate and that it was not the defendant’s fault but the fault of his legal representative. He could dispose of the matter that morning if there was an offer from the solicitors to pay the council’s costs of the application. He adjourned to enable counsel to obtain instructions about this, but unfortunately he was unable to do so because he could not speak to any responsible solicitor at Glazer Delmar.

When the hearing resumed the judge was persuaded to refuse the relief sought. He apparently changed his mind when Mr Eaton reminded him that a pre-trial checklist had still not been filed on behalf of the defendant. We only have counsel’s note of his judgment. The note shows that the judge did go through the CPR 3.9(1) factors. According to the note he said:

“…that the overall situation is that when directions were made on 22 March, listing questionnaires needed to be lodged by 10 May. The CMC was listed for 23 May. The defendant’s solicitors failed to attend and the defence and counter claim was dismissed. There was then a later application for relief. Listing questionnaires to date 17 July 2006, whilst not intentional, had not been filed. This is an error of the solicitor. Valuable court time wasted. The claim needs to be resolved. It is one and a half months since aware of problem. Defence has done nothing. There is every evidence that she is not pursuing the case diligently. The witness statement does not deal with the listing questionnaire problem. There is one error after another. Therefore, notwithstanding the effect on the defendant, the application for relief is refused.”

Having dismissed the application, the judge then proceeded to hear the claim. We are told that he heard evidence and considered whether the counsel had made out their case before making the order which he did, which was an order for possession in 14 days.

The defendant’s appeal to the recorder was not heard until 3 January 2007. He upheld the district judge’s decision. We do have a transcript of his judgment. He noted the failure to file a pre-trial checklist, but said this was not Ms Dixon’s only error. He continued:

“There was this failure to attend the case management conference on 23 May. She was aware, on her account, that morning, that this draconian order had been made, but notwithstanding that she failed to make any attempt to try and get before the district judge and apologise for her late arrival at court, for her absence at the hearing and failed to try and restore or repair matters there and then. Had she done so, there must have been a possibility that the district judge would have accepted her explanations and reheard the matter in her presence. As it was, she did nothing about challenging the order made by the court until three days after she received the order on 6 June whereas on her account of matters she was aware that this calamitous order, so far as her client was concerned, had been made on the morning on 23 May and yet she did nothing until 9 June.”

These considerations led him to conclude that the district judge was entitled to conclude that there was one error after another and, the recorder added, even if the error is that solely of the solicitor that does not mean that the judge is acting disproportionately by imposing the extreme sanction of striking out the defence and counterclaim.

Put shortly, Mr Latham, who now appears on behalf of the defendant, says that the district judge’s decision to strike out the defence and counterclaim and maintain that decision on the application for relief was unjust and disproportionate. He should have reinstated it on the defendant’s application, and the recorder was wrong to uphold his refusal to do so. Specifically, he submits, both judges failed to attach sufficient weight to the fact that the failures were entirely those of the defendant’s legal representative and that what was at stake was the defendant’s home which he has occupied for the last 15 years.

Mr Ashley Underwood QC has made a surprise appearance before us this morning on behalf of the council and we are extremely grateful to him for his short and very clear submissions on the point. He poses the question for us: ‘Did the district judge go over the top?’. He says that the critical date to consider is the hearing before the district judge on 17 July when from the defendant’s side there had been no discovery, no witness statements had been tendered and, more importantly, there was no explanation for any of this non-compliance with the rules. He asked what more could the district judge have done than maintain the sanction which he had earlier imposed?

CPR 55 contains special provisions relating to possession claims, but none of them are directly relevant to this appeal. Where a claim is genuinely disputed on grounds which appear to be substantial the court may give case management directions (rule 55.8(1) and (2)). Under the general rules case management includes the power to strike out a statement of case if there has been a failure to comply with a rule or court order, (rule 3.4[2]). Such a sanction may be relieved under rule 3.9(1). Rule 28.5, which deals with cases allocated to the fast track, provides:

“(3)

If no party files the completed pre-trial checklist by the date specified, the court will order that unless a completed pre-trial checklist is filed in 7 days from the service of that order, the claim, defence and any counter claim will be struck out without further order.”

“(4)

If a party files a completed pre trial check list and another party does not … the court may give such directions as it thinks appropriate.”

The rule 3.9(1) factors are well known. They include subparagraph (f):

“whether the failure to comply was caused by the party or his legal representative.”

As I have already said, I do not think that it is necessary in this appeal to explore further the way in which that subparagraph should be taken into account in any particular case. Suffice it to say that if the failure to comply has been solely the fault of a legal representative, it does not follow that the court must accede to an application for relief from sanctions imposed. These are possession proceedings. They do of course put at stake a defendant’s home. The mere fact that proceedings are of that character does not mean that in an appropriate case, provided it is a just and proportionate response, the court should not strike out a defence and counterclaim in the way that the district judge did here. Furthermore, this court will not interfere with a case management decision of that kind unless it can be shown that the wide discretion conferred upon judges who manage cases has been exercised wrongly, on well-known grounds which include that the discretion has been exercised in a way which can be characterised as being plainly wrong or disproportionate.

The only point which arises on this appeal is whether the district judge’s decision can be characterised in this way. I am bound to say that my first and now considered reaction to the strikeout imposed by the district judge was that it was a disproportionate response to what had happened. If Ms Dixon had attended the hearing on 23 May, it is inconceivable that the district judge would have struck out the defence and counterclaim for failure to file the pre-trial checklist. The worst that could have happened was an unless order, which there is no reason to believe would not have been complied with. The checklist would have been as unhelpful to the court as the council’s was, given that there had been no disclosure or exchange of witness statements by that time. Neither party had complied with the earlier directions about these matters and had agreed or were asking for extensions of time to comply. Failure to attend was obviously the main reason for the judge’s order on 23 May. In the absence of any explanation for the failure to attend District Judge Zimmels might have been justified in maintaining his order on 17 July. But he had an explanation from Ms Dixon by the time he heard the application for relief on that date and although her affidavit lacked detail there was no reason to or basis upon which he could doubt what she was saying. She had been delayed on the Underground and then tried unsuccessfully to verify what she had only learned from the usher and made the application for relief within three days of receipt of the court’s order.

The judge’s first reaction that in those circumstances strikeout was disproportionate and the matter could fairly be disposed of by an order for costs against the solicitors was in my view the right one. Failure to file a pre-trial checklist which was not mentioned in the earlier order or in any other document which I have seen should not have made all the difference. Mrs Dickson had made two errors. She had not started out early enough to get to court and had perhaps not been assertive enough when she got there and she had not filed the checklist. She had not made error after error and it is difficult to see how the district judge could have concluded that there was “every evidence that she was not pursuing the case diligently”. He seemed particularly irked that she had not attended court on 17 July, but she had not been asked to do so, and had by then been taken off the case by her principals. True it is that the solicitors could then have arrived with documents to disclose and witness statements to exchange and a listing questionnaire, but by that stage the case had been put into limbo by the strikeout application. There might have been funding difficulties had they proceeded to take those steps after the order had been made. Concentration was focused, as it obviously had to be, upon the application for relief.

In terms of the factors in 3.9(1) as I see it in this case:

From this analysis of the situation, I conclude that District Judge Zimmels was plainly wrong to deny the defendant relief. On his review of that position the Recorder should have allowed the defendant’s appeal and I would allow the appeal from his refusal to do so.

It is not the function of this court either on a first appeal or on a second appeal, to interfere with robust case management decisions which are firm and fair. However, for the reasons given by my Lord, the decision of the district judge in this case was not fair to the appellant. It was disproportionate. In my judgment, it was not consonant with the overriding objective of the civil procedure rules, which is to deal with cases justly. I, too, would characterise it as plainly wrong; and I would allow the appeal against the decision of the recorder, who failed to recognise it as such.

I agree that the appeal should be allowed for the reasons which my Lords have given. Put shortly, this was a case in which the district judge’s order of 17 July 2006 was plainly wrong. There are two matters that I wish to add. Like Tuckey LJ, I take the view that the outcome in this appeal does not turn on the fact that it is the appellant’s then solicitor, rather than the appellant personally, whose failure to comply with rules and procedural directions had led the district judge to make the order which he did.

Secondly, I will mention this. On 17 July 2006, when the district judge dismissed an application for relief from a sanction imposed by the order of 23 May 2006, and he then went on to deal with the claim for possession on the basis that that claim was undefended, he made an order for possession to be given on 31 July 2006. We have no record of the district judge’s reasons when reaching the conclusion that the case for a possession order had been made out, and there was no self-standing appeal on that part of his order -- that is to say, neither the recorder in the county court nor we in this court have been asked to consider whether the district judge was right to make the possession order which he did on an undefended claim, and we have not considered that question.

I mention that feature only to emphasise that as Mr Underwood QC on behalf of the council acknowledges, the position when this matters goes back for trial as a defended claim, as it must, will be that the judge at that trial will not be fettered by any finding on the substantive issue. This is not a case on which any view has been expressed in this court on the question whether, as a matter of law, the defendant’s mother was a secure tenant of the property at the date of her death. It is agreed that the matter should be tried before a circuit judge in the county court, and I would so direct.