Queen Mary University of London v Osonnaya

This is an appeal brought by the permission of the single Lord Justice against a judgment of Kenneth Parker J, given on 28 June 2011, when he dismissed the appellant’s application to set aside the order of MacDuff J, made on 18 March 2011, striking out an appeal brought by the appellant against a judgment of HHJ Mitchell in the Central London County Court.

The background to the matter can be very briefly stated. The appellant is a Tunisian and in 1999 she obtained employment with the respondent. It appears that her employment came about through arrangements with a body entitled the International Academy of Educational Services, which offered to provide some funding for her for the post that she was to undertake.

After her appointment, there appear to have been issues in relation to payments and other concerns raised by the respondents. Eventually the respondents decided that they would terminate her employment on 29 April 2007. Thereafter the appellant brought various proceedings in the employment tribunal and in the Central London County Court. However, relevant only to this appeal is the fact that, on 29 November 2007, the respondents brought proceedings in the Central London County Court against the appellant and the International Academy of Educational Services for unpaid amounts and damages for fraud on the basis that the International Academy of Educational Services was not what it purported to be but a body connected with the appellant and her husband.

As long ago as 5 February 2008, a default judgment was entered for damages to be assessed, and the appeal which Kenneth Parker J heard was in part an appeal in relation to that default judgment. It is not necessary to set out the long course of events in the county court, but it is quite clear that the question as to whether the default judgment should be set aside was considered by District Judge Langley who refused to set it aside, and subsequently there was an appeal to HHJ Mitchell in respect of that, which he dismissed.

Simultaneously with that, over the course of a period of time, there was an application listed by the District Judge for the assessment of the damages before a circuit judge. That took place before HHJ Mitchell on 22 April 2010. It was on that occasion that he fixed the amount of the damages and he dismissed the appeal from the District Judge in respect of setting aside the default judgment.

There then began, on 13 May 2010, an appeal to the High Court. The course which that appeal took is tortuous in the extreme and it is not necessary to set the detail of it out. It is sufficient to say that, on 18 November 2010, MacDuff J ordered the provision of bundles within 21 days and, if not, the respondents could apply to strike out the appeal. An application was apparently made to extend the time for the service of the bundles, but nothing seems to have happened. On 18 March 2011, MacDuff J struck out the appeal, giving each party liberty to apply within seven days. At the time the appellant was represented by solicitors, and although she says that they did not inform her of that order, as far as the court is concerned, and taking into account the position of the respondents, she had proper notice.

There was then an attempt to have a hearing to set MacDuff J’s Order aside before Beatson J. This occurred on 6 May in circumstances where Beatson J was the judge in court 37. The matter appears to have been put into his list on the basis of a statement on behalf of the appellant that it would take half an hour. This was plainly not a case, with what was said to be 36 bundles of documents, that could conceivably have been listed for that time. The matter was adjourned and re-fixed for 28 June 2011. Although the appellant attended by solicitors and counsel at the hearing before Beatson J, the solicitors then came off the record.

We have the benefit of a transcript of the entire hearing, when the matter came on before Kenneth Parker J. The first issue that arose before him was whether the appellant was medically fit to conduct the appeal she was doing in person. Kenneth Parker J inquired closely and carefully into the medical evidence. Bearing in mind the background which I have merely outlined, there was every reason to inquire into whether this was a case where the application not to proceed on that day was bona fide. The state of the appellant’s health was something that required the most careful scrutiny. That Kenneth Parker J did. It is quite clear that there was no evidence before him as to the inability of the appellant to proceed with the hearing. We have looked at some of the documents that were before him and I am, for myself, quite satisfied that there was no evidence before him which showed the appellant was ot fit to conduct the hearing. But even if I had not been, his inquiry was very careful and he was plainly entitled to come to the conclusion he did, namely that there was no evidence that the appellant was unable to conduct the appeal. Secondly, her husband was present on the occasion. He said to the court that he would not assist despite the fact, as is clear from earlier hearings, that he had done so. The judge was therefore entitled to view with a greater scepticism the position that had been taken.

It is then said that the judge should have taken account of all the matters that had been raised and in particular the fact that, in the hearing before Beatson J, it had not been the fault of the appellant that the matter had not proceeded on that day. However, it is clear from a reading of the transcript that Kenneth Parker J gave detailed consideration to all of the points. The point that was raised that was put before Elias LJ, the single judge, that Kenneth Parker J may have been misled, is without foundation, having had an opportunity of considering in detail the transcript of what transpired before Beatson J.

It seems to me, having looked at the massive volume of papers in this case, that Kenneth Parker J was plainly entitled to take the view that he did that the appeal should be struck out. There had been inordinate and inexcusable delay in its prosecution. Where a default judgment had been obtained so many years before and the appellate processes are clear and available to people, there can be no excuse for the failure of this appellant to have progressed the matter. I am entirely satisfied that the hearing before Kenneth Parker J was entirely fair, that he took into account all the relevant matters and that his decision to dismiss the appeal and strike it out was more than merited on the facts of this case.

I for my part would therefore dismiss this appeal.

I agree. We are now three additional judges on top of the 16 judges who have already considered these matters along with the six different firms of solicitors who have from time to time represented this appellant. The position is that Kenneth Parker J was not afforded adequate medical evidence on the basis of which he could have granted an adjournment. That being the position and, for the reasons given by Sir John Thomas, the unappealable decision, what in fact happened was that after yet another judge, Sir Richard Buxton, had refused permission in writing, the matter came before a single judge, Elias LJ, who gave this applicant an opportunity to say that that which Kenneth Parker J had been told was false. That was no basis for any appeal whatever. Once it had been decided that there was no proper grounds for not continuing with the matter before Kenneth Parker J, it simply is not open to a litigant to have a second go in an oral renewal application. The only basis on which she was given permission before us was that, if she was not given permission, she might possibly have a sense of injustice, to quote Elias LJ at paragraph 3. That is not a basis upon which permission to appeal should be given. As it turns out, there is, for the reasons given by Sir John Thomas, nothing in the appeal whatever. It has merely cost Queen Mary University further time, money, energy and resources, and the hearing today has merely prevented a more deserving litigant from having her appeal heard.

I agree that the appeal should be dismissed, and I do not want to add anything to the reasons already given.