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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nazir v Akindayini [2001] EWCA Civ 1422 (31 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1422.html Cite as: [2001] EWCA Civ 1422

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(HIS HONOUR JUDGE HORNBY)

		Royal Courts of Justice Strand London WC2 Tuesday, 31 July 2001

1. LORD JUSTICE JUDGE: This is an application to reinstate an application for permission to appeal with an extension of time in which to serve the notice of appeal. The transaction on which this litigation depends took place during the middle of August 1992. It involved the purchase of a tyre which failed with a consequent road traffic accident.
2. The case came on for hearing and decision before His Honour Judge Hornby on 20 May 1997, that is nearly five years after the incident giving rise to the cause of action. The issue before him was a fairly straightforward question of fact: Was the tyre bought from the defendant or the garage which he owned or was it not? His case was that it was not. Judge Hornby ruled that it was. He therefore entered judgment for the claimant in the sum of £2,523. On 11 July he refused, as it was then, leave to appeal.
3. In September 1999 there was an application to this court for permission to appeal, at least in part based on the availability, so it was said, of further evidence. It is fair to the present applicant, who was acting in person, that there is a fair indication in the papers that he was considerably hindered with difficulties in bringing this application to the court, he himself being adamant in his own mind that he wished to appeal as soon as judgment had been entered against him.
4. In February 2000 the application was listed before Mantell LJ. No-one turned up, that is to say neither the applicant nor the solicitors who were then acting for him. They had been informed on 21 December 1999 of the date of the hearing of the application and were told in terms that no further notice of that date would be received. Something plainly went wrong in the solicitor's offices. These things happen from time to time, but the end result was that the date was overlooked. Hence the absence of any representation for the appellant. He himself was not personally notified of the hearing and given that his solicitors were notified there was no reason why he should have been.
5. By 28 February the solicitors appreciated the order which had been made by Mantell LJ. I say that with confidence because they wrote to his clerk on that date with reference to this case and appending a copy of the order made by the judge for ease of reference. It is unnecessary in the context of this case to read any part of Mantell LJ's judgment. The order itself is absolutely starkly set out: "The application for permission to appeal and an extension of time be refused".
6. After that, there was some desultory correspondence and I am told by Mrs Aiken, who appeared here today in support of the application, that one of the reasons for the delay was that the solicitors felt they should be seeking copies of transcripts of events before Judge Hornby back in May 1997. It is clear that in November 1999 there had been a suggestion that the appropriate tapes had been found. However that was, by 7 December it was clearly stated to the solicitors that the transcripts were indeed not available and it was not until 8 May 2001 that this renewed application to reinstate was made. In other words, some 15 months had passed since Mantell LJ had refused the applications for permission to appeal and an extension of time.
7. Mrs Aiken has found herself in what she regarded as a difficult forensic position. She had a lay client who is here in court. She also was instructed by solicitors who, putting it neutrally, had been responsible for the non-attendance before Mantell LJ in February. She has urged on me that if this application is not granted her lay client will suffer from a genuine sense of grievance that his wish to appeal, expressed way back in 1997, has never reached the stage of a hearing at which he was represented. I understand that the lay client may have a sense of grievance, but we are now almost exactly nine years on from the date when the cause of action on which Judge Hornby founded his judgment took place; we are nearly 18 months after Mantell LJ's decision and not far short of 18 months of the date when his decision was notified to the solicitors. We really cannot have litigation conducted in this desultory way. It is not fair to anyone; in the context of this case it is perhaps worth emphasising, in particular, not fair to the claimant, who was the beneficiary of a judgment four years ago, to discover now, four years on, that an application for permission to appeal was being favourably considered. As Mrs Aiken acknowledged, there has to be an end to litigation and the end has been reached in this case. I can see absolutely no basis on which to grant the application to reinstate.
8. I feel that I must add this to my judgment. If the applicant seeks any remedy now it must be against his solicitors. I am not giving him any grounds for optimism. It would be quite wrong for me to suggest how that litigation might go or how he should approach it. I would add this however, that if he decides to seek separate advice, and his present solicitors should undoubtedly advise him to do so, it does not necessarily follow that because the solicitors were negligent in failing to take any steps when they were notified of the hearing date, February 2000, that any consequent damages would flow. On the other hand, further litigation in relation to a sum of £2,523, even if one adds to that interest and so on and costs, would seem to be a very disproportionate use of court time and, more important, a disproportionate use of valuable resources; that is to say, the applicant's funds or indeed the funds of his solicitors. If -- if -- this case gets anywhere near litigation, I do respectfully suggest to the parties that they should consider using Alternative Dispute Resolution as a means of sorting out their difficulties.
9. All those last matters, in my judgment, are not to the point. They are observations made because the applicant is here personally and I am told that he will suffer from a sense of grievance.
10. In the end, it is for him and for his present solicitors to take whatever decisions, adults properly informing themselves, may take. As to the application itself, I cannot find any meritorious basis in it and so it must be refused.
Order: Application for permission to set aside the order of Mantell LJ refused.