Cooper & Anor v Cooper

LORD JUSTICE LEWISON: On 10 August 2011, HHJ Jarman QC, sitting as a judge of the High Court, refused an application by Mr Alan Cooper and Mrs Marissa Cooper for an extension of time in which to appeal against the decision of Miss Sara Hargreaves, the Deputy Adjudicator to Her Majesty's Land Registry. With the permission of Etherton LJ, Mr and Mrs Cooper appeal.

The underlying dispute is essentially a dispute between Mr Alan Cooper and his brother, Anthony. It relates to a house at Number 30 Wembley, Pencaerau, Neath. The Cooper brothers bought the house in 1999 and it was transferred into their joint names to hold as joint tenants in equity. The bulk of the purchase price was raised on loan and there was a mortgage in favour of HSBC for that loan. In consequence of a transfer dated 16 February 2006, the title was re-registered in the joint names of Mr Alan Cooper and his wife. The only issue before the deputy adjudicator was whether Anthony Cooper's signature on that transfer was forged.

In addition to hearing from the protagonists, the deputy adjudicator had the benefit of a report from a well-known handwriting expert, Mr Robert Radley. His opinion was that there was strong evidence to support the proposition that Anthony did not write the signature in question. The deputy adjudicator recorded that Alan and his wife did not challenge Mr Radley's primary conclusions.

The most important witnesses who the deputy adjudicator heard were the two Cooper brothers, and Mr Anthony Cooper's partner, Rebecca Rise. All these witnesses were cross-examined before her. Anthony's signature on the TR1 purported to have been witnessed by Miss Rise. She accepted that her signature was on the document in question. However, her evidence was that it was presented to her by Alan folded in a way that meant she was unable to read the substance of the document and that he had told her it was a character reference. Anthony was not present at the time and she did not sign his name. She signed her own name and had handed the document to Alan.

Anthony's evidence was that he was under pressure from Alan to sign a transfer, but was unwilling to do so. He refused to sign the TR1 and did not attend the appointment with Alan's solicitor. His evidence was that he did not sign the TR1 in question.

Alan also gave evidence. His original case was that Anthony signed the TR1 in his presence. He subsequently changed that case to say that Anthony was in a different room. The case changed yet again in the course of his evidence, culminating in an allegation that Miss Rise signed the TR1 in Anthony's name as part of a conspiracy between her and Anthony to defraud him.

The deputy adjudicator recorded her impression of the witnesses. First, she was critical of Alan and his wife for not having disclosed the conveyancing file relating to the TR1 under scrutiny. She rightly recorded it was plainly relevant and within their power to disclose; and that it had not been. In paragraphs 50 and 51 of her determination, she gave reasons for preferring the evidence of Anthony and Rebecca Rise to that of Alan, and for not accepting Alan's evidence.

It is important to note not only that she recorded a favourable impression of Anthony and Miss Rise, but also a very unfavourable impression of Alan. She noted also that Anthony's case was supported by Mr Radley, the handwriting expert. She also considered that the inherent probabilities supported Anthony's case. It was incontestable that under the original transfer he was beneficially jointly entitled to the property; and the deputy adjudicator thought it would be highly unlikely that he would have wished to give away his beneficial interest to his brother. In the result, therefore, she came to the conclusion that Anthony had not signed the TR1.

The deputy adjudicator promulgated her decision on 24 September 2010. Section 111(1) of the Land Registration Act 2002 provides that a person aggrieved by a decision of the adjudicator may appeal to the High Court. Practice direction 52, paragraph 23.8B(1) provides that a person who wishes to appeal must obtain permission to appeal. CPR 52.4(2) requires an appellant's notice to be filed at the appeal court within 21 days after the decision of the lower court that the appellant wishes to appeal. In this case, the 21-day period expired on or about 15 October 2010. No appellant's notice was filed in that time. An attempt to file an appellant's notice at the Swansea County Court, rather than the High Court, was made on 13 April 2011. That was nearly six months out of time and appears to have been the wrong court. It was transferred to the District Registry of the High Court on 10 May 2011.

The ground upon which permission to appeal out of time was sought was that fresh evidence had come to light since the hearing which was said to contradict Anthony's case and support Alan's case. There were two categories of evidence. First, there was an undated document, produced by HSBC, which appears to be an authority, alleged to have been signed by both Alan and Anthony, authorising the bank to disclose information to solicitors in connection with the transfer of the property. This evidence became available in February 2011. Second, there was evidence from Neath and Port Talbot County Council, in the shape of a claim for housing benefit signed by Miss Rise on 16 April 2007. This was alleged to have been signed by her on Anthony's behalf and to declare that Anthony did not have an interest in the other property. According to the evidence before the judge, this evidence became available in January 2011.

The application for an extension of time is supported by a short statement from Mr Bolt, Mr and Mrs Cooper's solicitor. As I have said, Judge Jarman refused the extension of time.

As regards the HSBC document, he said that since it was Alan's case that he himself had signed the forms as well as Anthony, he should have taken further steps to procure its production before the deputy adjudicator. He was not, therefore, satisfied that this was material that could not have been obtained before trial. There was no formal challenge to that finding of fact in the appellant's notice.

He also noted that in relation to the material from Neath, there was no good explanation for the delay between sight of that material and the eventual filing of the appellant's notice. He recorded that Mr Cawsey, then as now appearing for Mr and Mrs Cooper, accepted he had a broad discretion under CPR 52.6 to grant a refusal of extension, and he directed himself by reference to the overriding objective which was the only matter to which he was referred. Ultimately he came to the conclusion that the delay was not justified and so he refused the application.

The main complaint made in the grounds of appeal is that the judge failed to have sufficient regard to the criteria contained in CPR 3.9. That is the rule that the deals with relief against sanctions. In some ways, that is an unfair criticism of the judge, as the transcript shows he asked Mr Cawsey upon what principles his discretion should be exercised. Instead of referring the judge to CPR 3.9, Mr Cawsey referred only to the overriding objective. Thus the criteria that the judge expressly mentioned in his judgment were exactly the criteria that Mr Cawsey invited him to take into account.

The judge was exercising a discretion. This court can only interfere with that discretion if the judge took into account factors that were legally irrelevant, failed to take into account factors that were legally relevant, or reached a decision that was plainly wrong in the sense of being outside the band within which reasonable people might disagree. Mr Cawsey, in the course of his oral submissions, has not submitted that the judge went outside that band in the sense that his judgment was perverse. Accordingly, it is necessary for him to identify either some legally relevant matter which the judge failed to take into account, or alternatively to show that the judge took into account some legally irrelevant matter.

In my judgment, Mr Cawsey has not demonstrated that the judge did either of those things. The furthest that he went was to say that the judge gave insufficient weight to the administration of justice. But weight is a matter for the person exercising the discretion; it is not a matter upon which an appellate court can interfere, unless the weight given to the particular matter is so wrong as to make the decision as a whole perverse. Mr Cawsey does not go that far.

In addition, it is worthy of note that on 11 March 2011 the deputy adjudicator herself pointed out that the appeal was out of time and that no application for permission to appeal out of time had then been made. Another month went by before the attempt to lodge an appellant's notice. In the context of a 21-day hearing for appeal, that is in itself a substantial delay.

In my judgment, if the judge had applied CPR 3.9, he would have come to exactly the same conclusion, given his view on the underlying merits of the appeal and the lack of explanation for the delay. It is true that he was marginally wrong in saying that the period of the delay came to an end on 11 May, because the appellant's notice was in fact lodged, albeit in the wrong court, on 13 April. But that is a minor matter and does not, in my judgment, amount to a matter of principle. I would therefore dismiss the appeal.

LORD JUSTICE PILL: I agree.

LORD JUSTICE LLOYD: I also agree.