ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, MERCANTILE COURT
(HIS HONOUR JUDGE MACKIE QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE GLOSTER
Between:
BARONS FINANCE LTD
Applicant
v
ODEDRA
Respondent
DAR Transcript of the Stenograph Notes of
WordWave International Limited
A DTI Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
The Applicant appeared in person
The Respondent was not present and was not represented
J U D G M E N T
LADY JUSTICE GLOSTER: This is an application by Speedy Bridging Finance for oral reconsideration of an order which I made on 16 April 2015. In that order, I struck out the appeal by Reddy Corporation and Speedy Bridging Finance on the grounds that they were in breach of my order dated 21 July 2014 which required them to file amended grounds of appeal within 28 days of the order.
In addition, the reason why I struck out the appeal by my order of 16 April 2015, having previously given leave, was that the Appellants had failed to pay the requisite fee and comply with the other requirements contained in the court's listing window notification letter dated 11 September 2014. Also, Mr Ghopee had not confirmed that he had written to His Honour Judge Mackie QC in accordance with my order dated 21 July 2014.
On that occasion, that is to say on 16 April 2015, I said in my written decision that:
"The length of the delay was wholly inexcusable. The Appellants, acting by Mr Ghopee, are fully conversant with the procedural requirements of this court. The inferences to be drawn are that the Appellants either do not intend to proceed with this appeal or that they are deliberately abusing the process of this court in not responding until the last minute."
I said any oral application could be renewed to me.
What subsequently happened, according to the correspondence, after the letter of 11 September 2014 was that Mr Ghopee seems to have lodged a skeleton argument on 21 March 2014 in this matter, although why that was sent is not clear.
When my order dated 16 April 2015 was sent to Speedy Bridging Finance at the same address, Mr Ghopee, who acts on behalf of all these companies, wrote by letter dated 5 May 2015 to the court asking for an oral hearing in respect of the decision which I made on the papers on 16 April, asking it to be heard before me and saying as follows:
"We are also writing to point out that after receipt of the decision made on 21st July 2014 when permission to appeal was granted, we have not heard anything from the court about this case until above order was made. We would be most grateful if you could also please be kind enough to let us know what are the requisite fee that ought to have been paid. This has been referred to in the order and we are completely in the dark about it."
The reference to the order there is to my order of 16 April 2015 where I struck it out.
The office replied on 23 May 2015 referring to the fact that the matter had been listed to be heard before me on 28 July, that is today, and saying:
"The office sent out the listing window notification on the 11th September 2014. The letter set out what you needed to do next and when you were required to pay the fee of 465. I've attached a further copy for your reference."
Subsequently, a further copy of the letter of 11 September 2014 was sent to Mr Ghopee. He then said in the letter of 18 June 2015 that he had not received it and was unable to deal with it.
I am not prepared to reinstate this appeal for a number of reasons. First of all, I do not accept that Speedy Bridging Finance Limited, which is still clearly operating from the address at PO Box 5467, Southend-on-Sea, SSO 9GY, did not receive the notification letter dated 11 September 2014, which was sent to that PO Box address with that correct postcode.
Mr Ghopee has given no explanation in the correspondence as to why the letter was not received. He has come up with an explanation orally today which says there is sometimes confusion with post received from RBS. Sometimes, he says, he receives mail for RBS and they receive mail for him. There is no evidence to support that explanation. That followed a previous oral explanation given by him to say that sometimes things were not correctly stamped by the court. That explanation I said I did not understand and Mr Ghopee came up with the second explanation.
In order to support his assertion, one would need to have some evidence, either in the form of a letter from RBS or some sort of explanation about non-receipt. Mr Ghopee is an experienced businessman and I am afraid I do not accept his 11th hour explanation given to me orally.
He says he has now filed the amended grounds of appeal and paid the requisite fee. I required in my order of 21 July 2014 that the Appellants should lodge amended grounds of appeal to reflect the specific grounds in respect of which I have given leave.
I clearly refused the Appellants leave to appeal on grounds that His Honour Judge Mackie was biased or prejudiced against the Appellants. Those grounds remain in the amended grounds of appeal, which have now been filed as late as 18 June 2015, and have not been deleted.
However, I have also considered the merits of the appeal because it was I who gave permission to appeal back in July 2014 on the grounds set out in my order made on the papers on that date. It is necessary for me to explain why Mr Ghopee will still have an opportunity at a trial to make the points that I thought at the time justified permission to appeal.
Let me explain. In my order dated 21 July 2014 I granted permission to appeal against the order of His Honour Judge Mackie dated 25 February 2014 whereby he ordered (1) that the claim in the above action be transferred from the Luton County Court to the London Mercantile Court; (2) that an order of the Luton County Court dated 12 February 2014 whereby Speedy Bridging Finance Limited was substituted for Reddy Corportation Limited as Second Defendants be set aside, and (3) that the charging order of the Luton County Court, also dated 12 February 2014, be set aside.
The reason that I granted permission to appeal was on the grounds that it was arguable:
"(1) That His Honour Judge Mackie QC did not appreciate or failed to have regard to the fact that after a full trial of this matter before His Honour Judge Kay QC in the Luton County Court, the court had:
declared that the relevant loan agreement was unenforceable;
but had nonetheless exercised its discretion not to dismiss an application by Reddy Corporation Limited under section 127(1) of the Consumer Credit Act 1974;
altered the terms of the loan agreement to 12 per cent per annum simple interest, and;
awarded judgment in the sum of £26,046.87 in favour of Reddy Corporation Limited with continuing interest at a daily rate of £5.44 until repayment.
(2) His Honour Judge Mackie QC failed to take account of e-mail correspondence as between Mr DP Ghopee as representative of Reddy Corporation and the clerk to His Honour Judge Mackie QC relating to the case dated between 30th September 2013 and 2nd October 2013. In an e-mail of the later date, the clerk stated, "As this case has recently been decided by another judge, your application should be made in Luton and not to us. Any application you make to Luton will not be seen as a breach of Judge Mackie's order of 17th July 2013."
(3) That His Honour Judge Mackie was wrong to assume that the Deputy District Judge made an order without evidence as to Speedy Bridging Finance Limited's interest or that it was relevant that Barons Finance Limited was in liquidation."
I then went on in that order to direct that the Appellants, Reddy Finance and Speedy Bridging Finance Limited, lodge amended grounds of appeal to reflect the above grounds in respect of which I had given leave within 28 days of the order.
The point I am making by reciting those reasons in full is that the effect of my refusing to vary the order which I made on 16 April 2015 striking out this appeal is that the matter will go back to the London Mercantile Court for reconsideration. At that hearing, both Speedy Bridging Finance, and Reddy Corporation, if it is still in the picture, and Mr Ghopee, acting as representative of Speedy Bridging Finance Limited, will have every opportunity to argue that, notwithstanding the order for transfer and setting aside the charging order, nonetheless the matter has been fully ventilated as between the parties in the decision before His Honour Judge Kaye QC and that accordingly similar orders as those made by His Honour Judge Kaye QC should be made.
Indeed, it would be open to Mr Ghopee, acting on behalf of Speedy Bridging Finance Limited, to put forward arguments barred in issue estoppel or res judicata as between the parties that would justify the London Mercantile Court making a similar order as that previously paid by His Honour Judge Kaye QC.
So Mr Ghopee and Speedy Bridging Finance Limited will not be deprived of the opportunity of arguing the merits of the previous order, which is precisely the arguments they would have put forward on the appeal, as to why the transfer order made by His Honour Judge Mackie dated 25 February 2014 should be set aside. That, of course, will impose on Speedy Bridging Finance and Mr Ghopee the additional task of having to justify their position before the London Mercantile Court.
However, it seems to me that, in all the circumstances, given the incredible delay and the fact that I do not believe Mr Ghopee's explanation, unsupported as it is by any evidence that he did not receive the listing letter, that is the appropriate way forward and that the London Mercantile Court is better equipped to deal with what are complex issues of fact rather than a very stale appeal to this court in circumstances where even now Mr Ghopee, acting for Speedy Bridging Finance Limited, has not complied with the terms of my order dated 21 July 2014.
I direct, accordingly, that this appeal remains struck out and that Mr Ghopee is entitled to the return of the fee, which he tells me he has paid to the office since the appeal is not now going ahead. Accordingly, I dismiss this application for reconsideration of my order of 16 April 2015 striking out the appeal. The appeal remains as struck out, but Mr Ghopee is entitled to the return of his fee. This matter will now have to be dealt with, and sorted out, by the London Mercantile Court.