No B2/2000/2784

Neutral Citation Number: [2001] EWCA Civ 686
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL 
AND AN EXTENSION OF TIME
							Royal Courts of Justice
								Strand
								London WC2

								Thursday, 26th April 2001

B e f o r e:

LORD JUSTICE JUDGE

MR JUSTICE LLOYD

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BALDWIN

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RILEY

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR BEN MALTZ (Instructed by Wilcox Line Clutterbuck of Birmingham) appeared on behalf of the Appellant

The Respondent was not represented and did not attend

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J U D G M E N T
1.	MR JUSTICE LLOYD: This is a case which was brought originally in Hereford County Court but when it came to trial it was in Worcester. It was allocated to the small claims track. The claim was for the price due under a contract to supply three hardwood windows to the defendant.
2.	The defendant, who represented himself throughout the County Court proceedings at first instance, put in first a handwritten document and later a more formal defence and counterclaim alleging that the windows were not of satisfactory quality and counterclaiming for the cost of obtaining replacement windows. The windows were supplied in early 1997. Mr Riley, the defendant, paid £140 in respect of sums due in 1998 but not the balance claimed of just over £1,000.
3.	Mr Baldwin, the supplier, brought these proceedings in September 1998. The first occasion on which there seems to have been a hearing in the County Court was on 10th May 1999 when the claimant was in person but the defendant, I gather, had only had a very short notice of the hearing and he wrote in asking for an adjournment. The district judge ordered an adjournment after the first open date after May and ordered the defendant to pay the claimant's expenses in the sum of £36.50 by 21st June. The further hearing came on on 7th July with both parties in person, the defendant having paid the £36.50. He asked for an adjournment to allow him to obtain and put in expert evidence. That was granted, but only on the condition that he paid £250 into court. He was also directed to serve the defence and counterclaim which I have mentioned. There were directions given for expert evidence. Mr Riley obtained a report from Mr Brian Johnston, which was made in August, and sent it to the court in early September.
4.	There was another hearing on 23rd September. Again, both parties were present and in person. At that hearing the defendant was given permission to rely on Mr Johnston's report and the claimant was to have permission to instruct Mr Morrison who was to be his expert, with the direction that Mr Morrison's report be disclosed by 4 pm on 19th October. Both parties were to be at liberty to call their respective experts to give oral evidence. Mr Morrison made a report on 6th October. It seems that that report was sent to the court but - in breach of the judge's direction - not to the defendant.
5.	The matter then came on for hearing. Again, both parties were in person before District Judge MacKenzie on 1st December. It became clear very near the outset of the hearing that the court had Mr Morrison's report but that Mr Riley had not received it. That was clearly a breach of the order and that is a matter which features largely in the submissions of Mr Maltz today. The district judge was faced with a dilemma. He adjourned the hearing for some twenty minutes so that Mr Riley and his expert Mr Johnston could see and read Mr Morrison's report. The hearing then resumed some twenty minutes later, the district judge first establishing that there was a great deal that was not agreed between the experts. He proceeded with the hearing. It is clear that the district judge was reluctant - the matter having already been before the court, by then on the third occasion - to put the case off again. It seems to me that we can infer from what is before the court that he was satisfied that the defendant was content to carry on. There was certainly no suggestion that the expert or, for that matter, the claimant said to the judge they had not had time to reflect on Mr Morrison's report and were not in a position to continue. They continued. 
6.	The hearing continued and the district judge gave judgment against Mr Riley in a sum which totalled, with various items, some £1,600. Mr Riley appealed against that judgment, as he was entitled to do, and that came before His Honour Judge Geddes in Worcester County Court on 10th April. Although we do not have a transcript of the judge's judgment, we have a note in some detail from the solicitor present of what the judge said. That includes the statement that the judge had heard the tape of at least part of the district judge's hearing, in particular what happened at the beginning of the hearing at which stage it became clear that Mr Riley had not received the report. It is clear that Judge Geddes proceeded on the basis that when the hearing was resumed the district judge was satisfied that the defendant had not objected and had been agreeable to him carrying on with the hearing. Before Judge Geddes the defendant relied in support of his appeal on the proposition that there had been a serious irregularity in that the judge had not adjourned the case for another hearing in the light of the claimant's breach of the direction in not serving the expert's report in advance and in the light of the fact the defendant and his expert only saw it at the hearing. The judge concluded that it was for the defendant or his expert to ask for an adjournment if they wanted one or felt one was needed. He therefore dismissed the appeal.
7.	The application before us is an application for permission for a second appeal to the Court of Appeal. The defendant originally put in a home made document, so to speak, in which he complained of dual standards. He contrasts the court allowing the claimant to get away with late service of the report with the court having imposed what is, int he context of a small claims case, a relatively stringent condition on the defendant, first, on the adjournment from 10th May and then on the adjournment from 7th July. In his skeleton argument the dual standard point appeared. He said kthe district judge did not act properly when he made it clear that he would not entertain an adjournment to allow a proper time to consider and investigate the expert's report, that the circuit judge “attempted to browbeat my solicitor and did not fully appreciate the conduct”. He said the Human Rights Act enlarges the scope of his right to appeal and this enlargement should be considered rather than the confined grounds of appealing on the application.
8.	The applicant is represented today by Mr Maltz who has said everything he properly can in support of the application. He recognises that his difficulty is that second appeals are subject to Section 55 of the Access to Justice Act 1999 and are only permissible if either the case either raises an important point of principle or if there is some other compelling reason to allow it to proceed to the Court of Appeal. His further difficulty is that the district judge's decision was a case management decision. Certainly it was a case management decision at the hearing but a decision whether or not to adjourn a hearing is pre-eminently a decision of the court as to the managemnent of the case. Mr Maltz says that that has to be understood in the context of Section 6 of the Human Rights Act. He draws from that the argument that it was really imperative for the district judge to have adjourned the case even in the absence of an application or indication from Mr Riley, who was appearing in person, or for that matter his expert, that they were not in a position properly to cope with the case because of late disclosure of the expert's report. In the context of a small claim, which was before the court on the third occasion, it seems to me eminently understandable that the judge should have been reluctant to put the case off, and that he should therefore not have directed an adjournment unless there had been an application to that effect from Mr Riley on the basis of an indication from the expert that he had not had time to consider the matter properly. It may be that if he had such an application he would not have granted it. It seems to me that even if the matter were not the subject of Section 55 this would be an appeal on which there was almost no prospect of success having regard to the discretionary nature of the judge's exercise.
9.	As it is, it seems to me that it cannot be said in any way to raise an important point of principle, nor can it be said there is any compelling reason for the matter to proceed to appeal. Accordingly, Mr Riley's application to this court is one that I would dismiss.
10.	LORD JUSTICE JUDGE: I agree.
Order: Application dismissed