Levy v Ellis -Carr & Ors

Mr Ellis-Carr made an application for permission to appeal the decision of Registrar Derrett dated 24 May 2011. His appellant’s notice was filed on 14 June. On 21 June Vos J ordered that the application for permission to appeal, with the hearing of the appeal subject to permission to follow, be heard on a date to be fixed. He also made an order that the appellant file an appeal bundle to contain the documents specified in PD52 para 5.6 and, in particular, a transcript of the judgment of Registrar Derrett of 24 May within 35 days of service of the order. That would have resulted in the bundle being filed by the end of July. On 30 June 2011 the court wrote to the parties, notifying them of a date for the hearing in a trial window commencing 1 November 2011. On 22 July Charles Henry, solicitors, acting on behalf of Mr Ellis-Carr, wrote to the court without copying the respondents, asking that the 35 days be extended to 7 days before the hearing. They were accordingly asking for an extension of time from the end of July to about 25 October for the filing of the appeal bundle. They explained that they were not in funds, but would be ordering transcripts within the next two weeks, i.e. by about 6 August.

At the hearing this morning I allowed Mr Kevin Gregory, who is a director and trustee of Charles Henry but not a solicitor or other lawyer, to appear before me as a lay representative. He produced documents which weakly suggest that Mr Gregory requested copies of the transcripts, including that specifically referred to by Vos J on 12 August. The same documents show that Mr Gregory did nothing to chase up the transcripts between 12 August and 24 October.

On 22 September the respondent’s solicitors wrote to Charles Henry, reminding them of the hearing date and the need to file the appeal bundle by no later than 26 July 2011. They requested a copy of the appeal bundle, and they received no reply to that letter. On 12 October 2011 the file was passed to Vos J again. He recorded the fact that no appeal bundle had been lodged. His order provided as follows:

“1.

Unless the Appellant do by no later than 4 p.m on Wednesday 19 October file an appeal bundle containing the documents specified in PD52 para 5.6, to include a transcript of Registrar Derrett dated 24 May 2011…this appeal shall stand struck out as from midday on the second working day after Wednesday19 October 2011 and a stay granted on 21 June 2011 shall be lifted at the same time.

2.

Note to the Appellant. If through no fault of your own you are unable to comply by Wednesday 19 October 2011 and you wish to apply for a further extension, you must apply to the court making a formal application on form N244 before Wednesday 19 October, and your application will be listed before a judge for you to explain why you have not complied with this order.

3.

This order is made without notice and at the court’s own motion, and the parties or any of them may apply within seven days of service of this order to set aside or vary all or any part of this order.”

Paragraph 2 thus meant that any further extension of time had to be applied for by Wednesday 19 October. Paragraph 3 gave the appellant the right to reply to set aside the order itself within 7 days of service, as it had been made without notice to him.

Vos J’s order was emailed to Charles Henry before the close of business on 14 October. On 19 October Mr Ellis-Carr signed an application notice on form N244, applying under paragraph 3 of Vos J’s order to set aside the order. The application reiterated the request that the bundle be served seven days before the hearing, i.e. by about 25 October. It also asked for an adjournment on the ground of the ill health of Mr Ellis-Carr and his son. The application was sent to the court but not issued until 21 October. It was not sent to the respondents until 27 October.

Accordingly, on 19 October the application for permission to appeal stood struck out. As paragraph 2 of Vos J’s order of 12 October had not been complied with, it could only be reinstated if there were grounds for setting aside Vos J’s order altogether, or if the court was prepared to entertain an application for relief from sanctions.

On 24 October Charles Henry wrote to the court saying that, despite requests made, they had not received the transcripts. In fact, the only request had been made on 12 August. It requested an adjournment of the appeal for long enough to receive the transcripts. The file went back to Vos J again on 26 October. By his order, he recorded the fact that he had read the letter of 24 October 2011 and noted that (a) as a result of the order dated 12 October 2011 the appeal was struck out at midday on Friday 19 October, and (b) the application to set aside the order dated 12 October was not issued or made until 21 October 2011. Accordingly, he ordered that the substantive hearing of the appeal be vacated. By a side wind, therefore, the appellants had obtained the adjournment which they sought. He directed that the hearing be used instead for the appellant’s application issued on 21 October. His reasons were:

“No appeal bundle has been filed despite the court’s repeated orders. Unless a bundle containing all the material is available as a file before the hearing on 1-3 November 2011 the appellant can expect that the application will be dismissed, and the appeal stand as struck out. If the transcripts are still not available, the appeal bundle can be filed with gaps for those to be inserted when available. The appellant’s application and solicitors’ letter did not deal with the real issues of delay by the appellant which has led to the appeal being struck out. It is those issues that will have to be fully and satisfactorily covered in evidence at the hearing between 1-3 November 2011 if the appeal is to stand any chance of being reinstated.”

Mr Gregory was not present when the appeal was called on at 10.30, but in view of the recent move to the Rolls Building I attach no importance to that. With him he brought a witness statement. I have treated with caution assertions of fact he has made, as he is not a lawyer, and because he gave me the impression that he was not careful about representations of fact which he made. The witness statement does not provide a particularly coherent explanation for the delay. It centres on the fact that Mr Gregory has only found the letter of 22 July recently. A copy of that letter does not appear on the court file, and so I will assume that it was not received by the court. The witness statement does not explain why Mr Gregory took no steps to chase the transcript between 12 August and 24 October. He apologises for this, and it is quite clear from the evidence that, if he had done so, the transcript would have been obtained much earlier. Nevertheless, an appeal bundle has now been filed, delivered by Mr Gregory this morning, albeit missing the transcript.

I cannot see any basis on which it would be right to set aside the order made by Vos J on 12 October. As of that date, Charles Henry had not even enquired as to the progress of the transcripts, and had made no effort to put together any other aspect of the documentation. If Vos J had seen the letter of 22 July, it would have confirmed to him that the appellants should by then have received the transcript, as it was going to be ordered within two weeks of the letter. It would have fortified his view that the appellants were doing nothing to get ready for the appeal, given that no transcript had been filed.

It follows that the application notice, based as it is on paragraph 3 of Vos J’s order, must fail. However, Mr Daycott, for the respondent, was content to treat the application as an application for relief from sanctions under CPR 3.9. That paragraph provides:

“On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a)

the interests of the administration of justice;

(b)

whether the application for relief has been made promptly;

(c)

whether the failure to comply was intentional;

(d)

whether there is a good explanation for the failure;

(e)

the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol;

(f)

whether the failure to comply was caused by the party or his legal representative;

(g)

whether the trial date or the likely trial date can still be met if relief is granted;

(h)

the effect which the failure to comply had on each party; and

(i)

the effect which the granting of relief would have on each party.”

I will make observations on some of those grounds, so far as they relate to this case. As to (c), there is substance in Mr Daycott’s submission that the failures in the present case were due to a desire to cause an adjournment of the application for permission, rather than by any real difficulty in obtaining transcripts. As to (d), there is no good explanation for the failure to comply with the Rules, although one is attempted in Mr Gregory’s witness statement. As to (e), I should say straight away that Mr Ellis-Carr’s conduct in the course of this and other litigation discloses a deplorable history of not attending hearings, seeking adjournments at the last moment, and a variety of other failures to conduct litigation in a sensible and cost-effective way. These are outlined in the witness statement of Mr Rinnick on behalf of the respondent. There is no attempt to answer any of this in Mr Gregory’s statement. As to (d), it is not possible to say that the failure is due only to the legal representative. As to (g), yet further the failure to comply with the Rules has already caused an adjournment of the trial date. These are powerful grounds for not granting relief from sanctions. Against this, I take into account that an appeal bundle has now been produced, albeit it very late, and the evidence suggests that the transcripts are on their way. There is, of course, real prejudice to the respondents, but to a degree this can be compensated in costs. If I refuse to grant relief to Mr Ellis-Carr, he is deprived of the opportunity to present an appeal in a matter which is important to him and involves a substantial sum of money by his standards, and which Vos J has suggested is not entirely devoid of merit.

The balance of prejudice weighs in favour of granting relief. In the end, I propose to grant relief. In order that the court retains control over its processes and this appeal, I propose to make an order that the appellants carry out checks on a weekly basis as to the progress in obtaining the remaining documents, and inform the respondent weekly of the progress being made. I also propose to order that the appeal is re-fixed on an expedited basis as soon as the remaining documentation has been obtained. I will hear counsel on the form of order.