Cooper & Anor v Cooper

This is an appeal from the decision of HHJ Jarman QC on 19 August 2011 refusing the appellants’ application for an extension of time for appealing a decision of Sara Hargreaves, a Deputy Adjudicator to HM Land Registry. By her decision, following a hearing on 5 and 6 August 2010, she dismissed the appellants’ application to vacate a restriction against the title to 30 Wembley, Neath, registered at the Land Registry under Title No. WA531286. The reason for her decision was that she concluded, in the light of the oral and documentary evidence she had seen, that the respondent’s signature on a transfer dated 16 February 2006 by the respondent to the appellants had been forged.

The decision of the Deputy Adjudicator was handed down on 24 September 2010. The notice of appeal should have been filed within 21 days. A notice of appeal was initially wrongly filed in the Swansea County Court on 13 April 2011. It should have been filed in the High Court. It was filed in Swansea District Registry on 10 May 2011. I should add that the notice of appeal, when initially wrongly filed in the Swansea County Court, also had the defect that it had not been signed.

The application for an extension of time was based on new evidence which had been obtained by the appellants since the decision of the Deputy Adjudicator. There are two principal matters of new evidence relied upon. One is an HSBC transfer of title customer authority, apparently signed by the respondent. Information about this was received by fax from HSBC to the appellants’ solicitor on about 11 February 2011. The second is a housing benefit claim form in which Rebecca Rise, who is and was the respondent’s partner, stated that neither she nor the respondent had any interest in any property in the UK. That document was apparently received by the appellants’ solicitor on 1 April 2011.

HHJ Jarman dismissed the application for an extension of time essentially on the grounds that (1) the transfer of title customer authority could have been obtained before the hearing before the Deputy Adjudicator; (2) in any event, there was a long period of delay after the receipt of that document before the notice of appeal was filed; and (3) there was no good reason for the delay between the receipt of the housing benefit claim form by the appellants’ solicitor and the filing of the notice of appeal on, as the judge put it, 11 May 2011.

Permission to appeal the decision of HHJ Jarman’s decision was refused on the papers by Kitchin LJ on the grounds that, although the judge had made certain errors, such as failing to note that the notice of appeal had originally been filed, albeit incorrectly, in the Swansea County Court on 13 April 2011, the judge was entitled to exercise his discretion in the way that he did.

I have heard Mr Cawsey, the appellants’ counsel, by video link today. Having done so I consider that permission to appeal should be given. An appeal certainly faces some difficulty in that a challenge is being made to an exercise of discretion by the judge and that can only be successfully achieved if it is possible to point to some error of principle by the judge or if his decision was otherwise outside the wide ambit of judicial discretion. I consider nevertheless that the appellant has a real prospect of success within the meaning of CPR 52.3(6).

In reaching his decision the judge had to consider each of the matters in CPR 3.9. He did not do that expressly in his judgment.

It seems to me that one critical issue is whether the judge was right to conclude that there was no satisfactory explanation for the delay between the receipt by the appellants’ solicitor of Miss Rise’s application for housing benefit and 11 May 2011 which the judge gave as the critical date for the filing of the notice of appeal. Miss Rise’s evidence is of very considerable importance because the Deputy Adjudicator was extremely impressed by her evidence and her credibility and those were a critical factor in the Deputy Adjudicator’s decision.

As Kitchin LJ pointed out, the judge appears to have overlooked that the notice of appeal was filed (incorrectly) in the Swansea County Court on 13 April 2011. The delay between that day and 10 May 2011, when the notice of appeal was filed in the Swansea District Registry, was attributable to the failure of the appellants’ solicitor to ensure that the form was correctly signed and also the failure of the appellants’ solicitor to ensure that the form was filed in the correct court. The judge acknowledged that the claim form for benefits, in which Miss Rise said that neither she nor the respondent had any interest in any property in the United Kingdom, was material evidence which might have affected the decision of the Deputy Adjudicator. That plainly is correct. It could not have been obtained before the trial. Kitchin LJ considered that it was material that the fact of the claim had originally come to light in an interview on 7 January 2011 between Mr Vaughan, a senior fraud officer with the Neath Port Talbot County Borough Council, and the appellants’ solicitor. It seems to me, however, well arguable, particularly in the light of what Mr Cawsey has said today, that it was not unreasonable for the appellants to wait until they actually had a copy of the form before launching the appeal.

As Mr Cawsey has said, up until that time the best that they had was a hearsay statement, either a double hearsay or a single hearsay statement, that a form had been received and had been signed by Miss Rise in which she had made the statement to which I have referred. That would not have been sufficient to persuade a court that the new evidence should be admitted and a re-trial take place. Indeed, the matter is complicated because Mr Cawsey has informed me that Mr Vaughan has in fact been suspended from his former position with the County Borough Council on the grounds that the documentation and information that he disclosed was in breach of the Data Protection Act. That indicates that the appellants’ solicitors may have been extremely wise not to have relied upon the hearsay statement because it seems highly unlikely that they could have compelled Mr Vaughan himself to have given evidence, or at any event that would have been a far from straightforward matter. In the event, the copy of the form which has been placed in the appeal bundle before me, has, I understand from Mr Cawsey, been obtained not from the County Borough Council but rather from the police who are carrying out their own investigation of this matter.

Two other important factors in the exercise of the discretion under CPR 3.9 are that there is no question of an appeal delaying a trial in these proceedings, and, further, the consequences of the Deputy Adjudicator’s order is, from the perspective of the appellants, to take away half the value of their property. That is a property which, on the appellants’ case, has been funded by the first appellant, Mr Alan Cooper, both in its purchase and in its renovation and maintenance. On the other hand, the respondent has apparently never lived there and, at least on the appellants’ case, made no financial contribution or none of any significance either to its acquisition or maintenance.

For those brief reasons I would grant permission to appeal.