Emojevbe v Secretary of State for Transport

This is the appeal of Dr Frederick Emojevbe (the appellant) against an order of Jay J dated 22 April 2015 dismissing his appeal against an order of HHJ Carr made at the Central London County Court on 26 September 2012.

HHJ Carr refused an application by the appellant (the claimant in the action) for the adjournment on medical grounds of a trial listed for hearing on 26 September 2007. HHJ Carr granted summary judgment for the defendant, the Secretary of State for Transport (the DVLA) in the appellant’s absence. Jay J subsequently dismissed his appeal and it is against the order that the appellant now appeals.

The case turns on the interpretation of CPR 39.3(3) the rule where the power for setting aside a judgment based on the failure to attend a trial is found.

Before considering the background to the claim it is useful to set out the terms of CPR 39.3 which governed the application.

CPR r39.3(4) requires an application to be supported by “evidence”. The basis upon which an application will succeed is found in CPR r39.3(5):

The appellant is a citizen of Nigeria but has, for a substantial period of time, been a resident of the United Kingdom. In July 2007 he made an application for a driving licence from the DVLA. The DVLA’s leaflet which accompanies an application for a licence, advises applicants that if they wish to have identity documents returned to them by special or recorded delivery they should include a stamped, self-addressed special delivery envelope. The appellant submitted his application together with three Nigerian passports, and a special delivery, stamped addressed envelope.

The application for a driving licence was refused and on 21 July 2007 the passports were posted back to the Appellant by first-class post. The passports were never delivered and the DVLA accept that the special delivery envelope supplied by the appellant, for reasons which are not clear, had not been used by them to return the documents.

The appellant’s occupation as described in his Amended Particulars of Claim was that of a self-employed education consultant. The main offices were in Nigeria and his work involved extensive international travel, in particular between the UK and Nigeria. The appellant’s case is that as a consequence of the DVLA’s negligence, he was unable to pursue his occupation as absent a passport he was unable to travel. The period of time he was without travel documents was such that irreparable damage was caused to his business and as a consequence he sustained substantial economic loss.

Upon instructions from the appellant, solicitors on behalf of the appellant wrote to the DVLA on 24 October 2007 highlighting the financial difficulties the appellant found himself in as a consequence of having no passport. The letter informed the DVLA that, although he had now applied for a new Nigerian passport, he had not yet received the same. Although by that stage the appellant had only been without his passport for about three months, the letter sought compensation in the sum of £127,250.50 being his annual gross income. It was said in the letter that he was entitled to a year’s loss of income because he earned the bulk of his income during August and September each year.

It was not until 2 June 2010 that the particulars of claim were filed in the High Court. This is a case which has thereafter been dogged with procedural delay and mishap; suffice it to say for the purposes of this appeal, that the case eventually found its way to the correct court and case management conferences were conducted by a circuit judge on 29 February 2012 and 18 July 2012, prior to a listing appointment for a trial date being conducted by telephone on 14 August 2012. It is not clear precisely how many hearings have taken place for which the appellant has had to attend court, he believes it to be about 5, but in any event there is no suggestion that he had previously failed to attend court when required to do so or had sought adjournments for any reason on any earlier occasions.

On 16 August 2012 notice was given of a trial date six weeks hence on 26 September 2012. On 24 September 2012, two days before the trial, the appellant made a written application for an adjournment of the hearing due to having an injured knee. That application was refused and on 26 September 2012 HHJ Carr granted summary judgment for the DVLA upon the appellant’s failure to attend the hearing.

There followed an extensive period of what can only be described as wholly unacceptable procedural anarchy in relation to which it is not necessary to elaborate. It was not until 22 April 2015, pursuant to permission to appeal out of time having been given by Teare J on 24 February 2015, that Mr Justice Jay heard the appellant’s appeal against HHJ Carr’s order of 26 September 2012.

The relationship between CPR Part 52 Appeals and an application to set aside judgment pursuant to CPR 39.3 was considered by the Court of Appeal in Bank of Scotland plc v Pereira and Others (Pereira) [2011] EWCA Civ 241; [2011] 1 WLR] 2391. In Pereira at [37] Lord Neuberger MR confirmed that where a defendant seeks a new trial on the ground that he/she did not attend the trial CPR 39.3 is the proper route. This will involve a determination as to whether or not the criteria found in 39.3(5)(a)-(c) are satisfied. In Pereira Lord Neuberger, MR, [47] held that an appeal court may:

decide the issue itself;

remit the issue to the court below as a CPR 39.3 application; or

make some other appropriate order.

Lord Neuberger went on to set out the principles applicable to applications under CPR r39.3 at [24]

Earlier in Brazil v Brazil [2002] EWCA Civ 1135, Mummery LJ had considered “good reason” :

The year after Pereira was decided, Norris J considered an appeal against a refusal to grant an adjournment on medical grounds in Levy v Ellis Carr and Others [2012] EWHC 63 (Ch). That case was not therefore a CPR r39.3 case and was one where there was a history of applications for adjournments and non-co-operation on the part of the appellant. Norris J said :

In Forresters Ketley v Brent and Another [2012] EWCA Civ 324, heard shortly after Levy, a late application for an adjournment of a hearing was refused in relation to a litigant in person suffering from stress associated with the litigation. Lewison LJ expressed his agreement with the approach of Norris J in Levy v Ellis Carr. In addition he said at [25]:

In TBO Investments Ltd v Mohun Smith and Another [2016] EWCA Civ 403, [2016] 1 WLR 2919, Lord Dyson MR considered how Levy on the one hand and Pereira on the other fit together. TBO Investments also related to an application for an adjournment by a defendant litigant in person, the medical basis for the application being stress caused, in large measure, by the pressure of the proceedings. On that occasion, the judge at first instance dismissed the application for an adjournment and entered judgment for the claimants in a sum in excess of £2m. The appeal judge subsequently refused the applicants’ application to set aside the judgment pursuant to CPR 3.39(3).

Lord Dyson, on appeal to the Court of Appeal, took the opportunity at [18] – [30] to examine the authorities in relation to sufficiency of medical evidence such as to justify the granting of an adjournment. In response to the submission that the judge had been right to apply the stringent observations of Norris J in Levy Lord Dyson said:

Lord Dyson went on to discuss what, at first blush, might be regarded as a tension between the Pereira guidance relating to CPR r 39.3 on the one hand and Levy with regard to applications to adjourn on medical grounds, on the other :

Following TBO Investments the position seems to be that:

Where the refusal of an adjournment will almost inevitably lead to the unsuccessful applicant losing at trial that is a factor which must be borne in mind when the court exercises its discretion in deciding whether or not to grant an adjournment. In the present case the consequence of the refusal of the application for an adjournment was that summary judgment was entered;

Where, as here, the application is under CPR r39.3(3), the judge should have applied the less rigorous guidance found in Pereira rather than that found in Levy. Mr Hare QC on behalf of the DVLA accepts that is the only interpretation available following TBO Investments which had not been decided when Jay J heard the case with which the court is now concerned.

The appellant’s application for an adjournment made on 24 September 2012 enclosed a “fit note” (formally called a sick note) dated 17 September 2012 saying that the appellant was not fit for work due to “knee pain”. Also attached was a letter from the Lewisham Health Care NHS Trust notifying the appellant of an outpatient appointment at the hospital, at the orthopaedic clinic, for an x-ray of his knee.

It was in the light of this information that the application for the adjournment was refused. When the matter came on before Jay J, he had additional information, both pre and post-dating September 2012. On 1 June 2012 a request was made by the appellant’s GP for an x-ray. Fit notes were issued by the GP on 30 July and again on 17 September. The appellant duly attended for his x-ray on 2 October 2012 and, on 10 December 2012, the appellant had surgery to his right knee in the form of an arthroscopy for a meniscal tear. A fit note was issued to cover the period 16 November 2012 to 9 January 2013.

The judge directed himself that he had to consider all the available evidence “in particular the medical evidence in the bundle in the light of the governing authority, namely the decision of Norris J in Levy v Ellis Carr”. The judge had the benefit of the more extensive medical evidence set out above when considering whether, pursuant to CPR 39.3(5)(b), the appellant had a good reason for not attending the trial. In dismissing the application to set aside the decision of HHJ Carr, the judge said:

That finding, the judge observed, was in itself sufficient to dispose of the appeal but, given the cumulative nature of the test, he properly moved to consider the third limb of CPR r39.5(c), namely whether or not the appellant had a reasonable prospect of success at trial. The judge had no hesitation in concluding that a claim in contract does not have a reasonable prospect of success. He was however less ready to reach the same conclusion in relation to the appellant’s claim in tort. The judge dealt with the matter shortly, saying that, on the basis of the information and limited submissions he had available to him, he was not prepared to find that the appellant did not have a reasonable prospect of success at trial. In his view the case hinged on the second issue, namely whether the appellant had failed to demonstrate that he had a good reason for not attending the trial.

Followed the granting of permission to appeal by Beatson LJ on 3 June 2016, the DVLA issued a Respondent’s Notice on the grounds that Jay J, in addition to having concluded that the appellant had failed to show a good reason for not attending trial (CPR 39.3(5)(b)), should also have concluded that the appellant had also failed to satisfy CPR 39.3(5)(c), namely that he had a reasonable prospect of success at trial.

The appellant, who appeared in person, submitted that in respect of ‘good reason’, the judge had been wrong in refusing the application to adjourn and in having proceeded in his absence. The medical evidence before him was, he said, more than adequate to show that he was not only not fit to work but not fit to attend court. The appellant said he had attended court whenever he had been required to do so and, far from having wished to put off the trial, given the financial position he found himself in due to the loss of his passports, he was particularly anxious for the trial to take place in order for him to be awarded the compensation which he felt to be his due.

Mr Hare, for his part, reminded the court that this was a review of the discretionary exercise of the judge’s judgment and the court should therefore be slow to interfere with the judge’s decision. Mr Hare acknowledged that the judge had regarded himself as being governed by the stringent test found in Levy, but submitted that the evidence produced by the appellant did not in any event satisfy the less rigorous test found in Pereira. Reasonable adjustments, he said, could have been made to accommodate the appellant’s mobility difficulties and his knee pain did not in itself amount to a good reason for not attending the hearing.

Mr Hare emphasised the fact that TBO Investments was a very different case on its facts. It was, he reminded the court, a case which had been listed for 7 days and therefore far more challenging than this case; further, the medical evidence ultimately put before the court was far more detailed than that filed by this appellant at any stage. Mr Hare drew the court’s attention to [28] of TBO Investments where Lord Dyson said:

The judge dismissed the appellant’s application as finding that although the appellant might have been unfit to work, he was not satisfied on the balance of probabilities that he was ‘physically incapable of getting to court’. The judge accepted that his condition may have deteriorated after the setting of the trial date but held that “on any view it was extremely late to be making an application of this sort in this manner”.

In reaching my conclusion I bear in mind that :

An appellate court should be slow to interfere with a decision of a lower court on the question of whether a litigant had a good reason for not attending a trial.

Whilst Pereira says that ‘what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant’s conduct’ [24] that should not be taken to mean that the evidence in support of an adjournment on the grounds that a party or witness is unfit on medical grounds to attend trial should not be subject to the scrutiny of the court (TBO Investments at [28]).

A pro-forma fit note, without more, may well be insufficient to found either a successful application for an adjournment at first instance or even an application under CPR 39.3(3). In considering whether that is the case, the court would undoubtedly have in mind the pressure under which GPs are working and the difficulties which may be faced by a litigant in person who, without the authority of a solicitor’s letter may face considerable difficulties in obtaining a report containing more detailed information that the bald details found on a fit note. Equally on the other side of the coin, the court will have in mind the frequency with which late, unmeritorious applications for an adjournment are made.

The fact that the appellant is a litigant in person is not in itself a reason for applying a test other than that which applies to a represented litigant.

I have concluded that, notwithstanding those considerations and that the judge said at [25] that in reaching his conclusion he had had “regard to all the available evidence,” he nevertheless fell into error in that (other than the brief mention of the lateness of the application) his focus and analysis rested wholly on whether the appellant was physically capable of attending court on the day of the trial. In doing so the judge, in my judgment, failed to examine all the evidence relevant to the non-attendance of the appellant. In considering the totality of the evidence the following matters were relevant:

There was no history of the appellant either failing to attend court or seeking adjournments;

The illness was genuine; the further medical evidence which had become available before the judge, and which had not been before HHJ Carr, showed that later in the year with which we are concerned surgery to the knee became necessary and the appellant was signed off work for a number of months;

The appellant was in pain. Whilst the emphasis was undoubtedly on the issue of mobility in terms of the appellant’s ability physically to attend court, no consideration was given as to whether the appellant would be put to an unfair disadvantage and be less able to put forward his case on his own behalf whilst in pain from his injured knee. The extent to which his medical condition might impede his ability to conduct the litigation in person is a factual matter which should be taken into account;

The appellant was the claimant and the reality was that if the application under CPR 39.3(3) failed then at no stage would the merits of the case have been considered by a court;

The judge had found the third limb, ‘reasonable prospect of success at trial’ to have been satisfied.

As the three factors in CPR r39.3(5) are cumulative, in order for the application to set aside the order of HHJ Carr to have succeeded, the applicant had not only to demonstrate good reason for not attending the trial, but also that he acted promptly (which is not in dispute) and that he had a reasonable prospect of success at trial.

In considering the appellant’s prospects of success, Jay J held that the appellant had, on the facts of the case, no claim in contract; a conclusion which must be right and is not challenged.

The judge, on the basis of the somewhat limited submissions he had received, was not prepared to find that the appellant did not have a reasonable prospect of success at trial and, having briefly considered two authorities, concluded that it is arguable that a duty of care arises in these sorts of circumstances.

By their Respondent’s Notice, the DVLA appeal against that conclusion and submit that, even if the judge had fallen into error and applied too rigorous a test in considering whether the appellant showed a good reason for not attending the trial, his application should nevertheless fail as there is no reasonable prospect of succeeding in a claim in negligence at trial.

In oral submissions Mr Hare initially said that the statutory limitation of the Post Office’s liability found in ss89-91 of the Postal Services Act 2000 provided a complete answer to the claim, although he somewhat tempered that submission subsequently.

S90 of the Postal Services Act 2000 provides:

Mr Hare submits that having once posted the passports to the appellant, the fact that it was the Post Office who lost the documents absolves them (the DVLA) from any responsibility. Any assumption of responsibility for the loss of the documents rests upon the Post Office as the operator and they have a general exclusion of liability as the universal provider, subject only to the modest compensation payable in limited circumstances under a schedule to the Act.

I can see the logic to that argument if the DVLA, having assumed responsibility for the documents and having invited the appellant to provide a special delivery envelope, had then posted the passports back to the appellant in the special delivery envelope he had provided. If the passports had thereafter been lost, the appellant would have been able to track the packet by virtue of the special delivery process. If the passports however were not thereafter traced, notwithstanding the tracking service, the appellant would undoubtedly have received only the limited compensation provided for under the Act and it is hard to see what, if any, residual claim he would have had against the DVLA.

In my judgment a similar argument cannot be successfully deployed in respect of the established facts namely that the DVLA failed to use the special delivery envelope. If one was looking at it in bailment terms (although this is not how the case is currently pleaded) it could be said that the DVLA was in breach of the terms of the bailment, having sent the passports back by first class post rather than by special delivery, a consequence of which was to leave the appellant without a means to track the envelope once it had failed to arrive at his address. It is not clear to me in those circumstances how it can possibly be argued that the DVLA can rely on the statutory immunity provided to the Post Office.

For my part I would not be prepared to allow the Respondent’s cross appeal and thereby overturn the judge’s conclusion that the appellant has a good arguable case in negligence.

The appellant’s appeal is therefore allowed and the respondent’s cross appeal dismissed.

The effect of our decision is that the appellant can now proceed to have his case considered on the merits. I would however sound a strong note of caution to him. On the information before the court I have no hesitation in saying that the quantum put forward by the appellant as his claim for consequential damages is wholly unrealistic. If the matter goes back to the County Court for trial, not only will there be further considerable delay in a case which has already been going on for ten years, but further costs will be incurred with the attendant risks of costs order being made. The time must surely have come to bring this unfortunate matter to an end and I would encourage the parties to seek to attend mediation as a route to achieving a settlement without further court proceedings.

I agree.

The appeal is allowed;

The cross-appeal is dismissed;

The Respondent shall pay the Appellant’s reasonable costs of the appeal at the litigant-in-person rate, to be assessed if not agreed;

The claim in negligence is remitted to the County Court, but is hereby stayed for four months in order for the Parties to engage in mediation.