ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE MITCHELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE BRIGGS
Between :
SATOSHI KOJIMA | Appellant/Defendant |
- and - | |
HSBC BANK PLC | Respondent/Claimant |
Mr Stuart Adair (instructed by Harcus Sinclair, 3 Lincoln’s Inn Fields, London WC2A 3AA) for Mr Kojima
Mr Turlough Stone (instructed by DG Solicitors, 12 Calthorpe Road, Edgbaston, Birmingham B15 1QZ) for HSBC
Hearing dates: 11th and 14th March 2011
Judgment
Mr Justice Briggs:
INTRODUCTION
This is an appeal from the order of HHJ Mitchell sitting in the Central London County Court whereby on 29th July 2010 he refused a series of applications by the appellant Satoshi Kojima arising out of an earlier order made on 10th June 2009 by Deputy District Judge Nicholes on the application of the claimant HSBC Bank plc.
In bare outline, HSBC had made an unsecured loan of £128,000 to Mr Kojima in April 2003. In October 2006 HSBC issued proceedings to recover £166,000 odd alleged to be outstanding by way of principal and interest. When acknowledging service Mr Kojima admitted liability for £158,000 odd, and disputed the balance. HSBC applied for judgment for the admitted amount in June 2009 and, in order to avoid Mr Kojima’s career being adversely affected by a County Court judgment against him, District Judge Nicholes made an order that unless Mr Kojima executed a charge for the admitted amount over his London flat, HSBC should be at liberty to enter judgment for that amount. Mr Kojima duly (but a little late) executed such a charge but, in September 2009, he applied:
to withdraw the admission;
to have District Judge Nicholes’ order revoked;
to amend his Defence to the claim; and
to plead a counterclaim.
Those were the applications dismissed by Judge Mitchell in July 2010.
Two important features of this appeal deserve mention at the outset. The first is that, although made at a case management conference at which the District Judge gave directions in relation to the part of the claim in dispute, the unless order in relation to the admitted sum was intended to be a final disposal of that part of HSBC’s claim. It was a final order in substance, albeit perhaps not in form. The second is that until September 2009, a little over three months after the District Judge’s order, Mr Kojima had in relation to HSBC’s claim been a litigant in person who, although aware of the primary facts upon which he now relies, was unaware that they afforded him what Mr Stuart Adair of counsel now describes as a defence with a real (rather than fanciful) prospect of success.
At the heart of Mr Adair’s submissions on this appeal is the proposition that, in an appropriate case, the court should be ready to revoke even its own final order in order to put right the injustice which would be occasioned to a litigant who had both admitted a claim and then submitted to final judgment on it before discovering, upon receipt of subsequent legal advice, that he had an arguable defence arising out of facts of which he had, throughout, been aware.
If this submission is correct, it would appear to offer to a person in the position of Mr Kojima an opportunity to reopen a case already decided against him in circumstances which, on appeal, would fail to satisfy the requirements of the well known test in Ladd v. Marshall [1954] 1 WLR 1489. Furthermore, it would also appear to be in conflict with the public interest in the finality of litigation, encapsulated in the Latin maxim interest reipublicae ut sit finis litium.
THE FACTS
Mr Kojima was in 2003 employed in the City of London in the mergers and acquisitions department of an investment bank. He wished to make what he understood to be a very tax-efficient investment in a British film partnership (“the Tower Scheme”) promoted by Tower Film Productions Ltd (“TFPL”), and for that purpose to borrow from HSBC the whole of the amount required for his investment, in the expectation that, if he obtained the tax advantage of doing so which had been described to him, he would recover by way of tax rebate an amount more than sufficient to repay the whole of what he had borrowed from the bank.
On 26th March 2003 Mr Kojima completed and signed a standard form HSBC document described as “HSBC Bridging Application Form for Tax Refund Loan Scheme (Standard)”, giving information about his employment (which he described as that of an associate director of Nomura International Plc), his income and outgoings, assets and liabilities. Three days earlier he had signed an authority to HSBC to transfer the “bridging finance once drawn” to the account at RBS of the trustee to the Tower Scheme. On 4th April HSBC sent Mr Kojima a written offer of a loan, limited to £137,850 for the purpose of funding an equity investment in a film partnership. The letter was written by Ms Alison Clare, describing herself as a Commercial Banking Manager of HSBC.
Mr Kojima says that Ms Clare came to discuss the proposed transaction with him in London, at a meeting on 11th April 2003 attended also by a Mr Richard Horton, representing St James’s Place Partnership which was co-promoting the Tower Scheme with TFPL and UK Film Services (Jersey) Ltd (“UKFS”). In the draft amended defence and counterclaim which Mr Kojima wishes to be able to pursue (verified by evidence in support) he says that Mr Horton made, and Ms Clare by her presence endorsed, a series of representations about the compliance of the Tower Scheme with the relevant tax legislation, and the certainty that his borrowing from HSBC would in due course be repaid out of the proceeds of a tax rebate attributable to his investment in the film partnership. Further, he says that Ms Clare on behalf of HSBC made representations of her own about the certainty that, come what may, and even if the tax rebate were not available, the loan provided to Mr Kojima would in due course be repaid by those operating the Tower Scheme, so that it would not have to be repaid by him. For that purpose it is said that Ms Clare showed Mr Kojima a copy of a letter which HSBC had received from UKFS on 24th March 2003 which, it is said, made statements to substantially the same effect.
Mr Kojima says that at or shortly after that meeting he accepted HSBC’s loan offer and invested the proceeds in the Tower Scheme, reliant on those representations.
It is common ground that Mr Kojima did not obtain the expected tax rebate, nor was HSBC repaid what it had lent Mr Kojima by any of the entities promoting or operating the Tower Scheme. Accordingly, Mr Kojima says that he found himself with an apparent liability to repay HSBC’s loan and interest out of his net income and, in the event of enforcement, from the available equity in his London flat.
HSBC commenced proceedings against Mr Kojima in the Redditch County Court on 26th October 2006, claiming £166,388.97 outstanding, with contractual interest accruing at a then daily rate of £39.83. Mr Kojima was, most unfortunately, still recovering from the distress occasioned to him by his wife’s serious illness during pregnancy and by his infant daughter’s death soon after her birth, on 6th August 2006. Nonetheless Mr Kojima had returned to work by November.
On 21st November 2006 Mr Kojima wrote to the Court Manager at the Redditch County Court enclosing a form of admission as to £158,875 of the alleged debt, and with a Defence as to the balance. In a lengthy accompanying letter he referred to the April 2003 meeting, attended by a representative of each of HSBC and St James’s Place (described as “the IFA”) at which (in his words) “there was a confident, coordinated and heavy solicitation from these parties together and I was sold on the merits of the scheme.” He described the HSBC representative as having explained that “the bridging loan is backed by the “certainty” of the Government rebate within the next eight months”. Generally, his account contained the gist of the facts underlying the misrepresentation case which he now wishes to advance, but he did not then suggest that those facts afforded him a defence. Later in the letter he described HSBC as having clearly solicited the investors in the film scheme. Having referred to his unfortunate family circumstances, his letter concluded with a detailed proposal for payment of the debt over time.
There then ensued a two year period of intermittent negotiation between the parties at the end of which, on 11th December 2008, HSBC re-activated the proceedings.
On 8th March 2009 there was issued in the Chancery Division a substantial claim arising out of the Tower Scheme, the reference to the record of which is Thomas & ors v. Capita Trustees Ltd & Ors HC09C00737 in which Mr Kojima was one of 126 claimants seeking to recover their losses from investing in the Tower Scheme against various of its trustees, promoters and operators, alleging breach of trust in applying the claimants’ money, breach of contract, negligence and statutory liability to pay compensation for the operation of what was described in the Claim Form as an unregulated Collective Investment Scheme, pursuant to the Financial Services Markets Act 2000 (“FSMA”).
HSBC’s restored proceedings came before District Judge Nicholes on 10th June 2009, at which HSBC sought judgment for the sum admitted, and a direction that the parties attend for ADR as to the balance. An attendance note made by HSBC’s representative at the hearing records that:
“The defendant gave a long and impassioned speech about the treachery and shortcomings of the Claimant, going into the history of the film finance deal and the prospects of recovery based on the fraud of the promoters, who had been endorsed by Claimant.”
After concern expressed by Mr Kojima at the adverse consequences for his career as a financial adviser in the event that a County Court judgment was entered against him, the District Judge sensibly and humanely suggested that Mr Kojima consider offering a charge over his flat as security for payment of the admitted sum, rather than being subjected to a judgment. After the short adjournment, and with Mr Kojima’s assent to that course, she ordered that unless the defendant provided HSBC with a fully executed charge to secure £158,875 over his flat by 4 pm on 1st July 2009, the claimant should be entitled to enter judgment for that sum. The balance of the claim was adjourned for ADR as requested by HSBC.
Mr Kojima had not provided that charge when, on 25th September 2009, he described his predicament arising from the HSBC claim to the solicitors acting for him and his co-claimants in the Tower Scheme Chancery proceedings, whereupon he was advised of the defence which he now wishes to pursue. That defence, as set out in a draft amended defence and counterclaim, relies on misrepresentations alleged to have been made on behalf of HSBC at the April 2003 meeting and upon a claim for statutory compensation on the basis that HSBC thereby, and through an unauthorised person in the form of Ms Clare, promoted the Tower Scheme to Mr Kojima in breach of section 21 or alternatively (if she was authorised) section 238 of FSMA.
Mr Kojima’s response was, at the same time, to deliver the executed charge over his flat so as to provide security for HSBC in respect of its now disputed claim, and to make the application which, once transferred to the circuit judge’s list, was in due course dismissed by HHJ Mitchell in a reserved oral judgment on 29th July 2010, after a hearing on 22nd July. It is to be noted that the application was listed before Judge Mitchell because the District Judge to whom it had originally been assigned considered that, in substance, it might be better regarded as an appeal than a revocation application at first instance. It was nonetheless pursued before Judge Mitchell as an application to revoke District Judge Nicholes’ June 2009 order, rather than as an appeal.
THE LAW
Withdrawal of Admissions
The court has a discretion to permit a party to withdraw an admission. Paragraph 7 of the Practice Direction to CPR Part 14 provides as follows:
“7.1 An admission made under Part 14 may be withdrawn with the court’s permission.
7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including—
(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
(b) the conduct of the parties, including any conduct which led the party making the admission to do so;
(c) the prejudice that may be caused to any person if the admission is withdrawn;
(d) the prejudice that may be caused to any person if the application is refused;
(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;
(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and
(g) the interests of the administration of justice.”
Counsel were agreed that paragraph 7.2 contains a useful and uncontentious distillation of earlier authority as to the discretion to permit the withdrawal of admissions. It is evident, in particular from sub-paragraphs (e) and (f), that the discretion is, in general, likely to arise during rather than after the final determination of proceedings. Indeed, the purpose of the jurisdiction may as a matter of common sense be regarded as spent once there has been a final determination either of the claim as a whole, or of that part of a claim to which the admission relates. It was no doubt with that in mind that Mr Kojima’s advisers considered it necessary to obtain a revocation of District Judge Nicholes’ order, as an essential prerequisite for permission to withdraw his admission as to the amount due to HSBC, and so as to create a platform for the application for permission to amend his Defence and to serve a counterclaim.
Revocation of Orders
The jurisdiction of the court to revoke its own order is contained, in the most general terms, in CPR Part 3.1, as follows:
“(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.”
That power is, by Part 3.1(1) described as being in addition to any powers given by any other Rule or Practice Direction or by any other enactment or any powers which the court may otherwise have. Save that the power to revoke is to be exercised having regard to the fulfilment of the overriding objective, the Rules contain no other guidance as to the principles upon which the discretion may be exercised, or as to the circumstances to be taken into account.
Two issues as to the extent and application of the power were keenly debated before me. The first was as to the precise meaning of one of the two pre-conditions for its exercise which has been identified by the authorities, namely where the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before her. The second is whether the power has any application to a final order, that is an order of the type whereby, otherwise than purely by default, the court finally disposes either of a claim, or of some part of a claim, subject only to an appeal to a higher court.
It is convenient to address both these questions together, by reference to the authorities in their chronological order. The earliest is Lloyds Investment (Scandanavia) Ltd v. Christen Ager-Hanssen [2003] EWHC 1740 (Ch). The defendant sought a variation under Part 3.1(7) of an order setting aside an earlier judgment in default of defence, on terms requiring a substantial payment into court with which the defendant, who was a litigant in person, had not complied. Patten J said this about the jurisdiction under Part 3.1(7):
“This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.”
In Collier v. Williams [2006] 1 WLR 1945, the Court of Appeal endorsed Patten J’s approach, adding, at paragraph 40:
“We agree that the power given by CPR r.3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under r.3.1(7).”
At paragraph 119 they added:
“The possibility of recourse to CPR r.3.1(7) remains to be considered. As we have said earlier, this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first.”
And at paragraph 120:
“In short, therefore, the jurisdiction to vary or revoke an order under CPR r.3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.”
The conjoined appeals in Collier v. Williams were not about final orders. In Edwards v. Golding & ors [2007] EWHC CA Civ 416 an order made by the Master for joinder of a defendant was set aside by the judge under Part 3.1(7), and a judgment in default subsequently obtained against the party who had been joined was also set aside. The claimant’s appeal against the setting aside of the joinder order failed. Giving the leading judgment, Buxton LJ noted the passages which I have cited from Collier v. Williams, and continued at paragraph 24:
“The basis of that jurisprudence is that the jurisdiction under order 3.1(7) is not a substitute for an appeal. There must be additional material before the court in the form of evidence or, possibly, argument. I would reserve the issue of whether additional argument in itself is enough to attract the jurisdiction of rule 3.1(7), but the general thrust of Collier is that the case before the court before which rule 3.1(7) is moved must be essentially different from one of simple error that could be righted on appeal. As was pointed out in the course of argument, it would be very striking if, taking the words of Patten J literally, new facts could lead to rule 3.1(7) being applied, but that did not apply to a case such as the present, where not new facts but a completely new understanding of the nature of the Master’s order was before the judge.”
At paragraph 27 he recorded the submission of counsel for the appellant that:
“as a matter of principle an unappealed decision such as that of Master Eyre was res judicata between the parties. But that rule refers most to final judgments. It cannot be so of interlocutory orders; otherwise there would be little reason for CPR 3.1(7) to exist at all.”
In Simms v. Carr [2008] EWHC 1030 (Ch) Morgan J explained the second of Patten J’s two types of circumstance (judge misled) as follows, at paragraph 46:
“The second case referred to by Patten J is where the court does not have a correct understanding of the facts when it makes the first order. The party then wishes the court to review its first order in the light of a correct understanding of the facts, which are then for that purpose communicated to the court. As Patten J makes clear, the court will not consider an application to revoke or vary the first order where the facts could have been, but were not, correctly stated first time round.”
Again, Simms v. Carr was not about a final order, but rather about the revocation of an order for security for costs.
In Roult v. North West Strategic Health Authority [2010] 1 WLR 487 application was made, but refused, under Part 3.1(7), to vary or revoke an order whereby the court had approved on behalf of a patient a settlement of his medical negligence claim, on the grounds of a revised assessment of the type, and therefore cost, of lifetime care which the claimant was expected to require in the future. The judge held that Part 3.1(7) did not confer power on the court to vary or revoke a final order of that type. Hughes LJ, giving the leading judgment in the Court of Appeal, reviewed Lloyds v. Ager-Hanssen and Collier v. Williams and concluded at paragraph 15:
“I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in the Ager-Hanssen case [2003] EWHC 140 I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR r 3.1(7) cannot bear the weight which Mr Grime’s argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue—an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopen any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist. ”
Finally, in Independent Trustee Services Ltd v. GP Noble Trustees & ors [2010] EWHC 3275 (Ch) Peter Smith J considered an application under Part 3.1(7) to vary an earlier final order made by him after a trial, on the application of the wife of one of the defendants whose potential interest in funds subject to the judge’s order had been overlooked by him when making it, in her absence. After referring to Lloyds v. Ager-Hanssen, Collier v. Williams and Edwards v. Golding, but not Roult, he continued, at paragraph 100:
“It seems to me that with respect to the authors of the White Book and the submissions of Mr Spearman QC there is nothing in the Court of Appeal decisions which suggests that the rule should be cut down so as to be completely inapplicable to any final order. The wording of the rule is very wide. It seems to me it was intended by the draftsman to confer the extremely wide supervisory powers in the Civil Procedure regime that existed elsewhere in insolvency courts as set out above. That is not to say that a final order can be set aside by a Judge willy nilly. It is a matter of discretion to be exercised according to the particular circumstances of the case. That in my mind is all that the Court of Appeal Judges to which I have referred say when they support Patten J’s judgment. They say in effect as regards final orders it would be hardly ever appropriate to set aside a final order. They do not say “never”.”
The judge acknowledged that his earlier order was, in part, the result of a mistake by him and concluded, at paragraph 102:
“Accordingly, this is in my view a good example of why exceptionally the court should retain a power to review a final order.”
For HSBC Mr Turlough Stone submitted that the effect of Roult v. North West Strategic Health Authority was to impose a simple jurisdictional ban on the application of Part 3.1(7) to final orders. By way of fallback he submitted that, in any event, the ‘judge misled’ category of case for revocation did not apply merely because, through lack of legal representation and advice, a litigant failed to deploy available material on the earlier occasion which he wished, after obtaining advice, to deploy at a later stage. For that purpose he relied principally upon Morgan J’s analysis in Simms v. Carr.
For his part Mr Adair for Mr Kojima submitted first that Roult was not a decision about jurisdiction, and left open Peter Smith J’s analysis that exceptional circumstances might justify the revocation or variation of a final order under Part 3.1(7). As for the ‘judge misled’ category of circumstance calling for revocation, he submitted that where a litigant was unable to obtain professional advice, his failure to advance relevant material on the earlier occasion could not fairly be said to have been a matter of choice.
My conclusions are as follows. First, although Mr Stone has in his favour the description in its headnote of the Court of Appeal’s decision in Roult as one about jurisdiction, I do not read the judgment of Hughes LJ (with which Carnwath and Smith LJJ agreed) as going quite that far. Nonetheless it does in the passage which I have quoted, clearly establish that, to the extent that there exists any jurisdiction in the court to review its own final order, that is not to be justified on the alternative grounds first enunciated by Patten J, and approved in Collier v. Williams, in the context of procedural or other non-final orders.
In my judgment once the court has finally determined a case, or part of a case, considerations of the type first identified by Patten J in Lloyds v. Ager-Hanssen will generally be displaced by the much larger, if not indeed overriding, public interest in finality, subject of course to the dissatisfied party’s qualified right of appeal.
Mr Adair very sensibly took no technical point that the District Judge’s Order was not in form a final order, accepting that it did finally dispose of the part of HSBC’s claim which Mr Kojima had admitted, subject only to appeal. Nonetheless he did submit that it was not the type of final order which ought properly to attract the public interest in finality. There was in his submission all the difference between a final order on the merits made after the trial of an issue, and a final order by way of judgment on admissions, since in the latter category the first instance court would never have investigated the entitlement of the claimant to that part of the claim which the defendant had admitted. Furthermore, he submitted, Roult v. North West Strategic Health Authority was about a final order approving a settlement between the parties which, evidently, the Court of Appeal had regarded as a powerful factor against allowing scope for revocation or variation at first instance. He relied also on the fact that, in Edwards v. Golding, the Court of Appeal had not been dissuaded from upholding the revocation of an order for joinder of a defendant by the fact that the claimant had then obtained a final order against him by way of judgment in default, which was also set aside.
While I recognise the force of Mr Adair’s point that the finality principle is more obviously justifiable where a final order follows a full trial, or for that matter a settlement between the parties, than where it merely gives effect to an admission, I am not persuaded that a judgment on admissions is not a judgment on the merits. Still less is it to be equated with a default judgment, as to which, regardless of its finality, there exists a well-established and distinct power to set aside, now to be found in CPR Part 13. Judgment on admissions is governed by CPR Part 14, specifically by Rule 14.3. Judgment is not obtained by some automatic process, but by application under Part 23 and, under rule 14.3(2):
“Judgment shall be such judgment as it appears to the court that the applicant is entitled to on the admission.”
While that process may not require the panoply of a trial, it is, like a summary judgment, nonetheless a judgment on the merits.
Leaving aside default judgments, with their self-contained regime for setting aside, I consider that a line has to be drawn between orders for which revocation may be sought under Part 3.1(7) upon the alternative grounds first identified in Lloyds v. Ager-Hanssen and approved in Collier v. Williams on the one hand, and final orders, to which the public interest in finality applies, on the other. I consider that orders made by way of judgment on admissions fall clearly within the second of those categories. Once a party has admitted a claim, and judgment has been given against him on that claim, the other party is in principle entitled to assume that, barring any appeal, there is an end to the matter.
It is unnecessary for me to conclude whether exceptional circumstances may nonetheless justify the revocation of variation of a final order within that second category, still less to prescribe in advance what those circumstances might be. It does not appear that Roult v. North West Strategic Health Authority was cited to Peter Smith J in ITS v. Noble Trustees. It is unnecessary for me to decide whether the truly exceptional circumstances in that case were sufficient, as Peter Smith J thought that they were, potentially to justify a wholly exceptional application of Part 3.1(7) to what he acknowledged was a final order. In the event, for other reasons, he did not make the variation sought.
Having concluded that the Lloyds v. Ager-Hanssen analysis is inapplicable in the present circumstances, it is also unnecessary for me to resolve the apparent tension between Patten J’s dictum that a party will be excluded from seeking revocation of an order where he has chosen not to present certain materials, and Morgan J’s analysis in Simms v. Carr that a party will be precluded merely because those materials were available for use, regardless whether their non-use was a matter of conscious choice. Had it been necessary, I would have concluded that whereas a conscious choice not to deploy relevant material (whether evidence or argument) would generally present an almost insuperable barrier to an applicant for revocation under Part 3.1(7), the failure to do so, otherwise than through conscious choice, for example because of the absence of legal representation at the material time, would be a relevant negative factor against the exercise of discretion, but by no means an insuperable hurdle, if other relevant considerations militated in favour of exercise of the discretion.
THE JUDGMENT IN THE COURT BELOW
It appears to have been common ground between counsel before Judge Mitchell that the Lloyds v. Ager-Hanssen conditions were the applicable test to apply to Mr Kojima’s application to revoke the District Judge’s order. That is stated in terms in paragraph 14 of Mr Stone’s skeleton argument prepared for that hearing, and it does not appear that the judge had the benefit of a citation of Roult v. North West Strategic Health Authority. The application was therefore argued by reference to the cumulative effect of the Lloyds v. Ager-Hanssen conditions and the principles governing the exercise of the discretion to permit the withdrawal of admissions, to which I have already referred.
It is therefore no criticism of the judge’s careful considered judgment that he approached the matter on the basis that it was necessary to decide whether the Lloyds v. Ager-Hanssen conditions had been made good. Furthermore, even without reference to Roult v. North West Strategic Health Authority, the judge had well in mind the public interest in finality. At paragraph 20 of his judgment he said:
“Cases should be considered once and only reconsidered if there really is some form of extenuating circumstances provided for in the CPR which require them to revisit it, because once the case has been listed and disposed of it has to be borne in mind in a busy county court like this there is a whole queue of litigants waiting to have their cases heard. Although I did refer to prejudice to the court, it is perhaps more appropriately expressed as disruption of the court’s business.”
It was submitted for HSBC before the judge, and on appeal, that Mr Kojima’s proposed amended Defence offered no real prospect of success. My reading of the judgment is that, at least by implication, the judge rejected that submission. Had he accepted it, it would have been a self-sufficient reason of its own for dismissing the application. There would have been no reason to revoke the District Judge’s order, permit the admission to be withdrawn and permit amendment if the consequence would merely have been to enable Mr Kojima to pursue a fanciful case.
I consider that the judge was right to reject that submission. I acknowledge that the available documents suggest that Mr Kojima may have formed an intention to invest money borrowed from HSBC in the Tower Scheme before the April 2003 meeting upon which he relies, but that does not of itself necessarily destroy a case that representations made at that meeting were a material part of the inducements affecting him when he finally decided to borrow. Nor does the restitutionary aspect of the statutory remedies available under FSMA mean that Mr Kojima would, as Mr Stone submitted, be bound to have to repay HSBC in any event.
The judge’s main reasons for dismissing the application may be summarised as follows:
Neither of the Lloyds v. Ager-Hanssen conditions were satisfied. There had been no material change in circumstances, nor could it properly be said that the court was misled: see paragraph 22.
Therefore there was no basis for revocation of the District Judge’s order.
In any event, the passage of time since the admission had originally been made, in November 2006, meant that it would not be just to HSBC to permit Mr Kojima thereby to reopen for dispute a claim that had been admitted for so long: see paragraph 21.
In passing, the judge concluded that Mr Kojima had a choice whether or not to obtain legal advice and representation before making his admission, and knew all the facts relevant to his belatedly alleged defence: see paragraph 19. Nevertheless the judge seems (at paragraph 20) possibly to have had second thoughts about the extent of Mr Kojima’s freedom of choice.
CONCLUSIONS
Even if it had been appropriate to address the application upon the basis that the Lloyds v. Ager-Hanssen conditions applied to the question of revocation of the District Judge’s order, I consider that the judge was nonetheless correct in concluding that the application ought to be dismissed. In all other respects he correctly identified the considerations to which he was required to have regard and, taking his judgment as a whole, I consider that he properly took each into account, and that he was swayed by no irrelevant or inappropriate considerations in exercising what was his discretion.
There is something in the point that, on the rather limited evidence available, Mr Kojima may have had no real choice, due to lack of liquid resources, to pay for the obtaining of legal advice and representation, although he could at least have sought free legal assistance from a Citizens Advice Bureau or pro bono service.
Furthermore, it may be said that, albeit that there was available in the form of Mr Kojima’s November 2006 letter accompanying his acknowledgement of service a summary statement of the factual basis for what he now wishes to raise by way of defence, nonetheless there is force in Mr Adair’s submission that the District Judge was not consciously aware of the factors summarised in paragraph 19 of his skeleton argument before Judge Mitchell, so that the judge may have gone a little too far in his contrary conclusion at paragraph 22.
Nonetheless I am by no means persuaded that in a case where a party adheres to a previous admission at a hearing before a judge, the judge can be said to have been “misled” about any matters which would have been relevant if, but only if, that admission had not been made, or an application was then made to withdraw it.
These are however criticisms at the periphery rather than the heart of the judge’s conclusions. He was, in relation to the application to withdraw admissions, fully entitled to conclude that the delay between 2006 when they were made, and 2010 when they were sought to be withdrawn, meant that the balance of prejudice or injustice militated against permitting their withdrawal. He was also fully entitled to conclude that the public interest firmly militated against permitting the revocation of the District Judge’s final disposal of the admitted part of the claim. On the view which I have formed of the extremely limited circumstances (if any) in which a final order may be reviewed under Part 3.1(7), in the light of Roult v. North West Strategic Health Authority, that public interest consideration was, on its own, a sufficient reason for the dismissal of the application.
The parties were agreed that the question whether Mr Kojima should be permitted to plead a counterclaim raised separate limitation issues, and that they should be addressed only in the event that this appeal was otherwise to be allowed. I have therefore not heard argument on that question.
For those reasons this appeal fails and must be dismissed.